2. The need to treat the "full range of responsible opinion" on environmental effects Committee for Nuclear Responsibility v. Seaborg, 3 ERC 1126, 1128-29 (CA, D.C. Oct. 5, 1971) The ultimate decision must of course take into account matters other than environmental factors, but insofar as staff has prepared the environmental statement for transmission and consideration throughout the entire executive process the officials making the ultimate decision, whether within or outside the agency, must be informed of the full range of responsible opinion on the enironmental effects in order to make an informed choice. Moreover, the statement has significance in focusing environmental factors for informed appraisal by the President, who has broad concern even when not directly involved in the decisional process, and in any event by Congress and the public. "When, as here, the issue of procedure relates to the sufficiency of the presentation in the statement, the court is not to rule on the relative merits of competing scientific opinion. Its function is only to assure that the statement sets forth the opposing scientific views, and does not take the arbitrary and impermissible approach of completely omitting from the statement, and hence from the focus that the statement was intended to provide for the deciding officials, any reference whatever to the existence of responsible scientific opinions concerning possible adverse environmental effects. Only responsible opposing views need be included and hence there is room for discretion on the part of the officials preparing the statement; but there is no room for an assumption that their determination is conclusive. The agency need not set forth at full length views with which it disagrees, all that is required is a meaningful reference that identifies the problem at hand for the responsible official. The agency, of course, is not foreclosed from noting in the statement that it accepts certain contentions or rejects others." "Plaintiffs also alleged the existence of reports by Federal agencies recommending against Cannikin specifically because of potential harm to the environment. NEPA clearly indicates that the agency responsible for a project should obtain and release such adverse reports." 3. The requirement for agency research into environmental impact EDF v. Hardin, 2 ERC 1425, 1426 (D.D.C. 1971) "Broadly speaking the Act [NEPA] requires an agency to undertake research during the planning of its programs that is adequate to expose their potential environmental impact and to disclose the results of this research to other interested agencies. The details of these research and disclosure requirements are set out at 42 U.S.C. Sec. 4332. . . . Thus, this provision of the Act [Sec. 4332(a)] requires a diligent research effort, undertaken in good faith, which utilizes effective methods and reflects the current state of the art of relevant scientific discipline." "Section 4332(c) requires the initiating agency to prepare and distribute an environmental impact statement concerning proposed programs. This statement is to contain the results of the research conducted during the planning phase together with adequate documentation. The statement must be sufficiently detailed to allow a responsible executive to arrive at a reasonably accurate decision regarding the environmental benefits and detriments to be expected from program implementation. The statement should contain adequate discussion of alternative proposals to allow for program modification during agency review so that the results to be achieved will be in accordance with national environmental goals." * "A final procedural requirement of the Act is contained in Section 4332(g) which requires the agencies to 'initiate and utilize ecological information in the planning and development of resource-oriented projects.' This directive recognizes the growing importance of the environmental sciences and directs the agencies to undertake research of a broader scope than may have been traditionally within their jurisdiction." 4. The inclusion of economic data in section 102 analyses EDF v. Corps of Engineers, 2ERC 1260, 1269 (E.D. Ark. 1971) "As is traditional with projects of this type, defendants have placed a great deal of emphasis upon economic factors and the economic "benefits" which they claim will result from the implementation of the project. Their claims in this respect should be included in any fully developed impact statement. The NEPA contemplates that environmental factors should be taken into consideration "in decisionmaking along with economic and technical considerations." Section 102 (2) (B). By the same token, a critical analysis of defendants' economic claims by those opposing the project, such as the plaintiffs here, should also be included in any complete impact statement. 5. The duty to consider less environmentally damaging alternatives Calvert Cliffs v. AEC, 2ERC 1799, 1792 (CA D.C. 1971) "... NEPA requires that an agency must-to the fullest extent possible under its other statutory obligations-consider alternatives to its actions which would reduce environmental damage. That principle establishes that consideration of environmental matters must be more than a pro forma ritual. Clearly, it is pointless to 'consider' environmental costs without also seriously considering action to avoid them. Such a full exercise of substantive discretion is required at every important, appropriate and nonduplicative stage of an agency's proceedings. 6. The NEPA mandate of a rather finely tuned and "systematic" balancing analysis in each instance Calvert Cliffs v. AEC, 2 ERC 1779, 1781-82, 1788 (CA D.C. 1971) "The sort of consideration of environmental values which NEPA compels is clarified in Section 102 (2) (A) and (B). In general, all agencies must use a 'systematic, interdisciplinary approach' to environmental planning and evaluation 'in decisionmaking which may have an impact on man's environment.' In order to include all possible environmental factors in the decisional equation, agencies must ‘identify and develop methods and procedures * * * which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations.' Environmental amentities' will often be in conflict with 'economic and technical considerations.' To 'consider' the former 'along with' the latter must involve a balancing process. In some instances environmental costs may outweigh economic and technical benefits and in other instances they may not. But NEPA mandates a rather finely tuned and 'systematic' balancing analysis in each instance. "To ensure that the balancing analysis is carried out and given full effect, Section 102 (2) (C) requires that responsible officials of all agencies prepare a 'detailed statement' covering the impact of particular actions on the environment, the environmental costs which might be avoided, and alternative measures which might alter the cost-benefit equation. The apparent purpose of the 'detailed statement' is to aid the agencies' own decisionmaking process and to advise other interested agencies and the public of the environmental consequences of planned Federal action. Beyond the 'detailed statement' Section 102 (2) (D) requires all agencies specifically to 'study, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.' This requirement, like the 'detailed statement' requirement, seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. Moreover, by compelling a formal 'detailed statement' and a description of alternatives, NEPA provides evidence that the mandated decision making process has in fact taken place and, most importantly, allows those removed from the initial process to evaluate and balance the factors on their own." 66 In each individual case, the particular economic and technical benefits of planned action must be assessed and then weighed against the environmental costs; alternatives must be considered which would effect the balance of values. The magnitude of possible benefits and possible costs may lie anywhere on a broad spectrum. Much will depend on the particular magnitudes involved in particular cases. In some cases, the benefits will be great enough to justify a certain quantum of environmental costs; in other cases, they will not be so great and the proposed action may have to be abandoned or significantly altered so as to bring the benefits and costs into a proper balance. The point of the individualized balancing analysis is to ensure that, with possible alterations, the optimally beneficial action is finally taken." 7. Agency responsibility not to sit back like an umpire to resolve environmental issues others may raise, but to take the initiative itself in probing environmental considerations; ". . . It is, moreover, unrealistic to assume that there will always be an intervenor with the information, energy and money required to challenge a staff recommendation which ignores environmental costs. NEPA establishes environmental protection as an integral part of the Atomic Energy Commission's basic mandate. The primary responsibility for fulfilling that mandate lies with the Commission. Its responsibility is not simply to sit back, like an umpire, and resolve adversary contentions at the hearing stage. Rather, it must itself take the initiative of considering environmental values at every distinctive and comprehensive stage of the process beyond the staff's evaluation and recommendation." 8. The test applied by Courts in reviewing 102 statements Calvert Cliffs v. AEC, 2 ERC 1779, 1783 (CA D.C. 1971) "We conclude, then, that Section 102 of NEPA mandates a particular sort of careful and informed decisionmaking process and creates judicially enforceable duties. The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values. But if the decision was reached procedurally without individualized consideration and balancing of environmental factorsconducted fully and in good faith-it is the responsibility of the courts to reverse. As one District Court has said of Section 102 requirements: 'It is hard to imagine a clearer or stronger mandate to the courts.' Committee for Nuclear Responsibility v. Seaborg 3 ERC 1126, 1128 (CA, "... On the ultimate issue whether a project should be undertaken or not, a matter involving the assessment and weighing of various factors, the court's function is limited. However, the court has a responsibility to determine whether the agencies involved have fully and in good faith followed the procedure contemplated by Congress: that is, setting forth the environmental factors involved in order that those entrusted with ultimate determination whether to authorize, abandon or modify the project, shall be clearly advised of the environmental factors which they must take into account." Ely v. Velde, 3 ERC 1280, 1286 (CA 4. 1971) "If the LEAA, after following the precepts of NHPA and NEPA, makes a good faith judgment as to the consequences, courts have no further role to play. We note, however, that a federal agency obligated to take into account the values NHPA and NEPA seek to safeguard, may not evade that obligation by keeping its thought processes under wraps. Discretion to decide does not include a right to act perfunctorily or arbitrarily. That is the antithises of discretion. The agency must not only observe the prescribed procedural requirements and actually take account of the factors specified, but it must also make a sufficiently detailed disclosure so that in the event of a later challenge to the agency's procedure, the courts will not be left to guess whether the requirements of NHPA and NEPA have been obeyed." C T Memorandum EXECUTIVE OFFICE OF THE PRESIDENT, To: Agency NEPA Liaison and Agency Counsel. Subject: (a) Cumulative Listing of Environmental Impact Statements Received under Sec. 102(2)(C) of National Environmental Policy Act: January 1November 30, 1971. (b) Published Texts of Agency NEPA Procedures. From: Timothy Atkeson. (a) Attached is a cumulative list of the environmental impact statements re ceived by the Council from the date of enactment of NEPA to November 30, 1971. It gives an idea of the types of action on which agencies have been submitting statements. Please advise us of any errors or omissions. (b) Also attached is the publication concerning agency NEPA procedures made in the Federal Register of December 11. Please advise us of any corrections that should be made or any subsequent publication concerning your agency's procedures. SUMMARY OF 102 STATEMENTS FILED WITH THE CEQ THROUGH NOV. 30, 1971 *Separate 4(f) statements not incorporated in 102 statements received from DOT are not included. CUMULATIVE LISTING OF 102 STATEMENTS RECEIVED JANUARY 1, 1970-NOVEMBER 30, 1971 Atomic Energy Commission Nuclear development-underground nuclear test programs (Nevada) F1 11/20/70 Nuclear development-Cannikin test (Alaska) F 6/23/71 2 Nuclear development-liquid metal fast breeder reactor D2 7/12/71 Nuclear development-underground nuclear test programs for FY 1972 (Nevada▸ F 9/15/71 Power-nuclear D-32 Power-nuclear F-23 Appalachian Regional Commission Mining-research project (Kentucky D 9/24/70 Delaware River Basin Commission Power-hydroelectric-Point Pleasant Division Plant (Pa.) D 1/6/71 1 "D" refers to Draft 102 statements received by CEQ. "F" refers to Final 102 statements received by CEQ. Power-hydroelectric-Kittatiny Mountain pumped storage electric generating facility D 5/11/71 Dredge and fill-Amico Sand and Gravel Co. (Pa.) D 4/14/71 Dredge and fill-American Dredging Co. (N.J.) D 4/14/71 NOTE: When there are more than 10 statements, draft or final, in a category, no indi. vidual description of the statements will be made. NOTE: When a final statement appears, the draft statement of that final enumeration is excluded from the enumeration. Department of Agriculture (Agricultural Research Service) Herbicides-restriction of uses D 6/16/70 Herbicides cooperative Federal-State program to control witchweed (N.C., S.C.) D 9/15/71 Pesticides rangeland grasshopper control program utilizing Malathion (Great Plains and Mountain States) D 5/6/71 Pesticides-emergency program for VEE (Lower Rio Grande area) D 6/28/71 Pesticides-Pilot Boll Weevil eradication experiment (Mississippi Area) F 8/17/71 Pesticides cooperative diapause control program for Boll Weevil (Texas, Mexico) D 10/22/71 Pesticides soil inhabiting insects program D 11/4/71 (Agricultural Stabilization and Conservation Service Miscellaneous-rural environmental assistance program D 9/16/71 (Consumer and Marketing Service) Miscellaneous-regulation for egg products inspection act F 8/23/71 Miscellaneous-proposed revisions of regulations governing the inspection of poultry F 9/1/71 (Farmer's Home Administration) Water-miscellaneous-insured loan to Rural Water System No. 1 (Iowa) D 9/23/71 (Forest Service) Buildings-pulpmill installation (Alaska) F 8/12/70 Forestry-Aqua Tibia Wilderness (Calif.) D 4/16/71 Forestry-Public Service Co. power line (Arizona) F 4/13/71 Forestry-Tucson Gas and Electric Co. power line (Arizona) F 4/13/71 Forestry-Glacier Wilderness, Shoshone National Forest (Wyoming) D 5/25/71 Forestry-management of French Pete Creek, Willamette National Forest (Oregon) F 7/16/71 (134710 Forestry-Washakie Wilderness, Shoshone National Forest (Wyoming) F 8/4/71 Forestry-Flat Tops Wilderness (Colorado) F 8/13/71 Forestry-Waterville Valley Management Plan (N.H.) D 9/17/71 Forestry-proposal to declassify the Upcompahgre Primitive Area (Colorado) D 10/14/71 Forestry-Six Rivers Timber Management Plan (Calif.) F 10/12/71 Forestry-Rio las Vacas-Senorita Section, Santa Fe National Forest (New Mexico) D 11/22/71 Land disposal-proposed Gallatin land exchanges Nos. 2 and 3 (Montana) F 7/1/71 Pesticides Cooperative Gypsy moth suppression project (Pa.) F 5/13/71 Pesticides-Cooperative Gypsy moth suppression project (N.Y.) F 5/13/71 Pesticides-Cooperative Gypsy moth suppression project (N.J.) F 5/13/71 Pesticides-Use of Zechtran F 5/7/71 Power-transmission-Castaic-Haskell power transmission line (Calif.) F 5/21/71 Recreation facilities-Council Bluff Reservoir Project (Mo.) D 5/19/71 (Office of the Secretary) Forestry-legislative proposal to designate Sycamore Cañon Primitive Area as Sycamore Cañon Wilderness (Arizona) F11/18/71 |