CHAPTER 3 The National Environmental Policy Act: Federal Guidelines

• Jurisdiction: United States

Natural Resources Environmental Law
(Feb 1972)
CHAPTER 3
The National Environmental Policy Act: Federal Guidelines^*
J. William Geise, Jr., Esq.
Chief, Interagency Assistance and Evaluation Branch, EPA, Region VIII,
Denver, Colorado

Introduction

In 1965, a revolutionary new concept in Federal budgeting was introduced known as the Planning-Programming-Budgeting system (PPBS).¹ This concept applied systems analysis techniques to the executive process of compiling the Federal budget. By selecting objectives, formulating alternatives and evaluating alternatives in terms of costs and benefits, Federal government expenditures are being made much more efficiently than in the past.

Implementation of this new system required a massive re-orientation in the budgetary thought processes of all Federal agencies. No longer was a budgetary item justifiable simply because it had been included in last year's budget. No longer would budgetary items be considered in an incremental, fragmented and sequential manner. Rather, under the new PPB system, each budgetary item has to be justified in terms of the objective to be accomplished. Each budgetary item has to compete with every other budgetary item for the limited monetary resources available.

At its inception, the new PPB system was plagued by many problems. It represented a challenge to the established relationships between Federal agencies, Congressional committees and political constituencies. Many agency supervisors failed to demand the use of the PPB technique. It was complained that the PPB system was much too time-consuming. There was a general lack of training of Federal staff in the analytical technique of the system. There was a lack of professional agreement on certain basic analytical issues. There was a lack of quantitative data for evaluating the benefits and costs of various alternatives.²

Yet despite these problems, the grumblings subsided and after more than six years of experience, Federal staffers for the most part have come to appreciate the merits of PPB as an essential tool for rational decision-making.

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The integration of PPB into the Federal decision-making process is analagous to a similar integrative process taking place in connection with the preparation of environmental impact statements (EIS) in accordance with the National Environmental Policy Act of 1969 (NEPA).³ Similarly revolutionary and plagued by many of the same problems, the EIS process requires a massive reorientation in the planning processes of all Federal agencies. This reorientation is taking place formally through the adoption of guidelines by Federal departments and agencies, independent agencies and commissions in accordance with guidelines established by the Council on Environmental Quality.⁴ The formal agency guidelines specify procedures for:

(1) identifying those agency actions requiring environmental statements, the appropriate time prior to decision for consultations with other agencies and interests and the agency review process for which environmental statements are to be available;

(2) obtaining information required in the preparation of environmental statements;

(3) designating the officials who are to be responsible for preparing the statements;

(4) consulting with and taking account of the comments of appropriate Federal, State and local agencies; and

(5) providing timely public information on Federal plans and programs with environmental impact.

The adoption of such formal agency guidelines, however, is a mere beginning. The true test is whether the agency is totally committed to the implementation of those guidelines not only at the Washington level, but in the field offices where the planning process for most Federal actions is initiated. It is clear that the lack of total agency commitment may result in time-consuming and in most cases, embarrassing judicial rapping.⁵

EIS Process

The EIS process includes the following steps:

1. Preparing an environmental assessment as the basis for deciding whether or not an EIS is required.

2. Deciding whether or not an EIS is required.

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3. Preparing and circulating the draft EIS.

4. Reviewing the comments on the draft EIS and preparing and circulating the final EIS.

5. Reviewing the comments on the final EIS and deciding whether to disapprove, approve, or approve with modifications the proposed action.

NEPA requires the preparation of environmental impact statements by all Federal agencies for "....every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment." It is important to note that this requirement is applicable only to the activities of the Federal government. Activities conducted exclusively by State or local governments or private interests with no involvement by the Federal government in the form of funding or otherwise do not require environmental impact statements under NEPA. However, several states have enacted environmental policy laws requiring the preparation of environmental impact statements for State actions.⁶

Not every Federal action requires the preparation of an EIS. Only "major" Federal actions "significantly" affecting the environment require such statements. It is discretionary with each Federal agency to decide which of its activities have the requisite magnitude and significance to warrant preparation of an EIS. The agencies also have to decide the proper point in the decision-making process when a decision has to be made whether or not to prepare an EIS and to specify criteria for making that decision.

The CEQ guidelines provide a general indication as to what types of "Federal actions" may require preparation of an EIS:

1. Recommendations or favorable reports relating to legislation including that for appropriations;

2. Projects and continuing activities: directly undertaken by Federal agencies; supported in whole or in part through Federal contracts, grants, subsidies, loans, or other forms of funding assistance; involving a Federal lease, permit, license, certificate or other entitlement for use;

3. Policy, regulations, and procedure-making.

The CEQ guidelines also address the timing and criteria to be used in deciding whether to prepare an EIS. In Section 2, the

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guidelines state that "As early as possible and in all cases prior to agency decision..." an impact statement shall be prepared. In Section 5(b), the guidelines state that the statutory clause "major Federal actions significantly affecting the quality of the human environment" should be construed with a view to the overall effects of the actions contemplated. In Section 5(c), the guidelines state that the agency should assess a broad range of environmental factors.

As required by the CEQ guidelines, each Federal department and agency and independent agency and commission has or is in the process of developing its own formal guidelines for implementing the EIS process. As of December 11, 1971, ten of the eleven Federal executive departments have adopted formal NEPA guidelines. Only the Department of Labor is delinquent. Out of thirty-two Federal agencies listed as included under the jurisdiction of these departments, only eleven agencies have prepared formal NEPA guidelines. Of the twenty independent executive agencies or commissions, all but three have developed formal NEPA guidelines. The Federal Maritime Commission, Federal Communications Commission and the Small Business Administration are deliquent. In addition to the formal agency guidelines, many agencies are developing more detailed internal operating procedures for implementing the EIS process.⁷

A major problem with agency guidelines is a lack of specificity. In attempting to group substantially different activities within one set of procedures, the agencies have ended up with guidelines so general that they often are not very helpful to an official trying to decide whether or not an EIS is required. Many of the guidelines correctly emphasize that the EIS process involves the exercise of professional judgement. The exercise of this judgement, however, must be made with a clear understanding of the conceptual steps involved in reaching the state of actually writing an EIS. At least six distinct conceptual steps preparatory to the writing of an EIS can be identified:

1. Categorize for each bureau of an agency those types of actions which are likely to involve environmental effects.

2. Identify for each of these types of actions the environmental considerations frequently involved e.g. sulphur oxide emissions, sedimentation, wildlife disturbance, etc.

3. Identify what basic information on these environmental effects needs to be gathered, who is to gather it, and when it is to be gathered so that a reasonable decision can be made on whether an EIS should be prepared.

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4. Designate a specific point in the various decision-making processes by which time the decision should be made on whether an EIS is required.

5. Provide detailed guidance on the considerations involved in making this decision.

Step 3 is the most significant and is described by most agencies as an environmental assessment. An environmental assessment is a formal evaluation process to determine whether a proposed action is expected to have a significant impact on the environment and thus to require the preparation of an EIS.

In situations such as the construction of a reservoir where it is a foregone conclusion that an EIS will be required, the term environmental assessment is synonomous with the term environmental impact statement. The term environmental assessment has been coined to characterize the initial analytical process which occurs in situations where there is uncertainty as to whether or not an EIS is required. Whether you call it an environmental assessment or an environmental impact statement, the same detailed analytical...