CHAPTER 6 PRACTICAL CONSIDERATIONS IN PREPARING ENVIRONMENTAL IMPACT STATEMENTS (EIS)

• Jurisdiction: United States

Natural Resources Environmental Law
(Feb 1972)
CHAPTER 6
PRACTICAL CONSIDERATIONS IN PREPARING ENVIRONMENTAL IMPACT STATEMENTS (EIS)
CLYDE R. HAMPTON
Attorney—CONOCO, Mineral Law Section Colorado Bar Association

September 12, 1972

(Reproduced with Permission of Author)

I. Introduction

1. Given the environmentalists the fastest guns and the itchiest trigger fingers in the land.

A. Signed by President Nixon on Jan. 1, 1970 as first official act of decade regarding the environment.

B. CEQ (Russell Train) makes these claims for NEPA:

1. An important step in a reordering of national priorities;

2. Requires a public airing of issues;

3. Agencies forced to articulate decisions and grounds therefor; thus more informed decision-making;

4. Requires agencies to develop in-house expertise in varied disciplines (mission-oriented agencies) ("leading bureaucratic horses to environmental water");

5. NEPA carries with it court enforceability.

C. Track record of NEPA

1. As of Feb. 15, 17 Court of Appeals decisions and 50 District Court decisions, with decisions coming out about one a week.

2. 160 NEPA cases:

a. 43 against DOT

b. 34 against Army Corps of Engineers

c. 17 against Department of Interior

d. 15 against USDA

e. 13 against AEC

f. 9 against HUD

g. Remainder against a scattering of agencies.

3. 4,000 impact statements and coming in at the rate of over 200 a month, or 10 per working day — 2400 Federal actions

a. About 1/2 from DOT, 1/4 on water resource projects, 1/10 on power projects.

II. Framework of NEPA

A. NEPA claimed to be "Environmental Emancipation Proclamation"

1. 24 Rutgers L. Rev. 230 (1970), Hanks & Hanks, "An Environmental Bill of Rights"

B. NEPA has many resemblances to a constitutional charter

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1. General Policy in lofty terms — Sec. 101(a) man and nature existing in "productive harmony" and fulfilling requirements of "present and future generations of Americans"

a. Sec. 101(b) states that in order to carry out this general policy it is the continuing responsibility of the Federal Government to improve and coordinate Federal actions to fulfill the broad specified goals.

2. Guts of NEPA in 102(2)(C) which requires all agencies of the Federal Government to prepare a statement with respect to all "major Federal actions significantly affecting the quality of the human environment," which statement must include a discussion of the five specified items.

a. A fragmentary prescription which left the details to be filled in by the courts.

b. The agency responsible for the statement must obtain the comments of appropriate Federal, State and local agencies which statement and comments are made available to the President, CEQ and the public and must accompany the proposal through the agency process.

c. Title II of NEPA establishes CEQ which reviews and comments upon the EIS but has no veto power.

C. Clear that Congress did not realize what it was passing.

1. Legislative history was very minimal and NEPA was thought generally to be just a general recommendation that environmental matters ought to be considered as well as economic and technical matters.

III. Some broad generalizations regarding NEPA cases

A. Standing

1. Standing is no longer a real problem for plaintiffs.

2. An...