CHAPTER 10 FEDERAL ENVIRONMENTAL REGULATION OF MINERAL RESOURCES DEVELOPMENT WITH PARTICULAR EMPHASIS ON INDIAN LANDS

• Jurisdiction: United States

Western Coal Development
(Mar 1973)
CHAPTER 10
FEDERAL ENVIRONMENTAL REGULATION OF MINERAL RESOURCES DEVELOPMENT WITH PARTICULAR EMPHASIS ON INDIAN LANDS
Reid Peyton Chambers
Acting Proffessor of Law U.C.L.A. School of Law

SOME THOUGHTS ABOUT ENVIRONMENTAL REGULATION OF LEASING ON FEDERAL AND INDIAN LANDS

This paper will discuss environmental regulation of leasing, with attentiveness to mineral development activities, on public lands and Indian lands. Environmental law is a new compartment; its rise has been meteoric and its contours are unclear. This is particularly so in the Indian area, where there is confusion about, and overlap of, the respective powers and duties of federal, tribal and even state governments to regulate the environmental consequences of mineral development.

I. Leases on Public Lands

Let me begin with something of a disclaimer. I am not an environmental law scholar, nor do I think of myself as a committed environmentalist. My principal contact with environmental law has been in the classroom, as a teacher of Administrative Law, and on the firing line in two cases representing Indians¹ where environmental law issues have been involved.

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My comments about environmental regulation of public lands are not intended to be comprehensive or definitive. Rather, they are designed to suggest differences between types of federal environmental legislation (which applies, inter alia, to public lands), and to formulate some criteria for what is and what is not effective legislation in the environmental field. By "effective" legislation, I do not mean legislation which provides maximum protection for the environment. Such legislation is "effective" only in the eyes of the beholder, and I am searching for a more neutral concept of effectiveness. Let me propose one that may secure general agreement. I take it that we might all be comfortable with the notion that environmental policy ought to balance environmental values with other, conflicting objectives such as resource use, production of commodities, full employment and the like. People vary in their attachment to environmental protection as contrasted to these other ends or goods, ranging in a continuum from ecological purists to adherents of a "development at any price" creed. Since this is a democracy,² legislation would be effective if it promotes the attainment of a public policy which more or less accurately reflects that balance between environmental factors and other objectives which would be approved by a bare majority of citizens, or by the median citizen along the continuum. With this standard of effectiveness in mind, I will review the two major pieces of federal environmental legislation in recent years that pertain

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to leasing and mineral development on public lands — the National Environmental Policy Act of 1969 (NEPA)³ and Clean Air Act Amendments of 1970.⁴

A. NEPA

From reading the reported cases, one concludes that NEPA's principal change in existing law was to "require all federal agencies to consider values of environmental preservation in their sphere of activity."⁵ Prior to NEPA, Congress felt that federal departments did not weigh environmental factors in their policy making. As the Senate Committee Report on the bill observed:

"[E]nvironmental decision making largely continues to proceed as it has in the past. Policy is established by default and inaction. Environmental problems are only dealt with when they reach crisis proportions. Public desires and aspirations are seldom consulted. Important decisions concerning the use and the shape of man's future environment continue to be made in small but steady increments which perpetuate rather than avoid the recognized mistakes of previous decades."⁶

The remedial keystone of the Act was Section 102(2)(C),⁷ which "directs that ... all agencies of the Federal Government shall ... include, in every recommendation or report on proposals

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for legislation and other major federal actions significantly affecting the quality of the human environment, a detailed statement" on five enumerated subjects.⁸ Prior to making the "detailed statement", moreover, the section requires the responsible agency officials to consult with and obtain comment from other federal agencies with legal jurisdiction over the area or special expertise concerning any environmental aspects of the project. These comments and any views of appropriate state and local agencies are to be submitted to the Council on Environmental Quality and "shall accompany the proposal through the existing agency review processes."

In early cases, when environmentalists succeeded in enjoining preliminarily major federal projects such as the Trans-Alaska Pipeline,⁹ the Gillham Dam in Arkansas,¹⁰ and the Cross-Florida Barge Canal,¹¹ some enthusiasts hailed the

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coming of an "Environmental Bill of Rights."¹² Although the final returns are not yet in, it is my judgment that the early victories created artificial and inflated perceptions concerning the Act. In virtually all the cases where environmentalists prevailed, no environmental impact statement as required under Section 102 had been prepared. The halts proved temporary. The cases where the environmentalists had won preliminary relief, they were later to lose. District Courts have now dissolved the injunctions against the Alaska pipeline and Gillham Dam¹³ as well as other projects,¹⁴ on the ground that the agency subsequently complied with NEPA by preparing Section 102 statements. Some of these cases are on appeal, and final conclusions as to the meaning of NEPA will be in doubt at least until the Supreme Court has spoken. But there is growing

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evidence that the days when resource development projects can be halted for failure to comply with NEPA are over. By now, virtually every agency has prepared its regulations establishing procedures to comply with Section 102,¹⁵ and agency paper mills have generated hundreds of environmental impact statements. My belief is that NEPA procedures are rapidly becoming simply another exercise in bureaucratic paper pushing.

I do not have sufficient data to substantiate my suspicion. It may be that, empirically, some projects are stopped because of the Act's procedural mandates which would otherwise have gone ahead. (The only one I know of is the Cross-Florida Barge Canal.) It would be difficult, in any case, to accumulate hard evidence of projects that would have been constructed but for the administrative evaluation which NEPA requires to be performed. Many factors enter into assessing a project, and opinions will differ as to which were determinative in a particular case. There are, however, a number of reasons to suspect that NEPA may no longer be a menace to resource development projects.

First, courts which have construed NEPA are in general agreement that the Act contains no substantive mandate. It decrees that the environment be considered, not that it be protected.¹⁶ As one Court of Appeals observed: "the general

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substantive policy of the Act is a flexible one. It leaves room for a responsible exercise of discretion and may not require particular substantive results in particular problematic instances.¹⁷ NEPA has been called an "environmental full disclosure law:"¹⁸

"Congress contemplated that the Impact Statement would constitute the environmental source material for the information of Congress as well as the Executive, in connection with the making of relevant decisions, and would be available to enhance enlightenment of — and by — the public."¹⁹

The critical notion is that a governmental decision-maker, informed of the environmental consequences of a particular action, will balance environmental factors together with other factors in an "effective" way. This is particularly likely, so the theory runs, because the decision-maker operates in a fishbowl: the "public" has access to the Section 102(2)(C) statement and can make its views known and its pressures felt. Moreover, the input of other pertinent federal, state and local agencies must be considered by the agency before its report is finalized.

The fishbowl theory is inapposite, however, because environmental decision-making under NEPA remains diffused

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among eighty²⁰ or more existing agencies of the government, most of which have well-hewn relationships with industries subject to their regulation, trade associations, congressional committees and the like. Except where project authorization is required by Congress²¹ — and it is not required where the federal government is leasing, licensing, permitting and the like — all significant substantive determinations are made by the executive agency involved. The administrator is likewise the fact-finder — he decides, for example, between conflicting claims of possible environmental despoliation, and evaluates project benefits. In deciding the merits of the project, the administrator is often an interested party, committed in some degree to the project. And his fact-finding power to evaluate the environmental information which flows to him is not subject to review, judicially or otherwise, at least so long as it is performed "rationally."

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Lawyers are no strangers to the theorem that finding the facts is often more critical than fashioning abstract legal principles. And one is not required to espouse conspiratorial or Marxian notions of how political institutions function to suspect that most executive departments and agencies (even formally "independent" commissions) lean heavily on the flow of facts supplied them by the industries with which they closely deal. There is nothing sinister in the process, and I certainly do not mean to suggest that NEPA studies are prepared with malice or bad faith. My observation has been, however, that in issuing NEPA statements, the agency relies very heavily upon the scientific...