CHAPTER 12 Role of the Environmental Protection Agency in the “102 Process”

• Jurisdiction: United States

Natural Resources Environmental Law
(Feb 1972)
CHAPTER 12
Role of the Environmental Protection Agency in the "102 Process"^*
THOMAS T. ROGERS

What is the role of the Environmental Protection Agency in the "102 process" under the National Environmental Policy Act of 1969? Although concerned with its own projects and proposals, EPA's primary role is that of a reviewing agency. Section 102(2)(c) of the Act requires the various Federal agencies to seek the comments of "any Federal agency which has jurisdiction by law or special expertise" over the environmental aspects of a project or proposal. The recent Calvert Cliffs decision has made it clear that the mandates of NEPA are not to be taken lightly. Comments received by the requesting agency must be thoroughly considered and failure to consider significant suggestions, comments or criticisms regarding a project could well prove costly if litigation were to ensue.

Under the CEQ guidelines of April 23, 1971, EPA is designated as having jurisdiction by law or special expertise in eighteen environmental areas, second only to the Department of Interior's twenty-one areas. Consequently, given the substantial number of impact statements, both draft and final, which will pass through EPA for review and EPA's considerable obligations in the basic areas of land, air and water, the key role which EPA has in the review stage of the "102 process" is obvious. It thus becomes important for submitting agencies and their applicants to know what EPA generally expects in an impact statement to avoid many comments and criticisms with resulting revisions, all of which can be time consuming and costly.

Superficiality has been one of the biggest problems with many impact statements submitted for EPA review in the past. They usually lack the scope and depth of analysis appropriate for an understanding of the effect on the environment of the proposed action. For example, Federal highway projects have a significant impact on urban and rural growth patterns by providing the inducement needed for industrial, recreational or agricultural development with obvious attendant environmental impacts. Seldom are these impacts evaluated in a statement. Yet these so-called secondary impacts may be more damaging than the immediate physical impacts. These omissions occur despite the fact that Section 6(a)(ii) of the CEQ guidelines requires that secondary effects be covered wherever possible in any impact statement.

In most areas, the problem of superficiality stems undoubtedly from a general lack of technical guidelines which specifically detail how a statement should be prepared. The CEQ guidelines, while fairly assessing the purpose of

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NEPA as incorporating into agency procedure "an appropriate and...