CHAPTER 7 NEPA: PROBLEMS AND OUTER LIMITS

• Jurisdiction: United States

Natural Resources Environmental Law
(Feb 1972)
CHAPTER 7
NEPA: PROBLEMS AND OUTER LIMITS
Roger P. Hansen, Esq.
Executive Director, Rocky Mountain Center on Environment

COMMENTS

SYNOPSIS

Introduction

Introduction
I. Problems of NEPA Administration	2
II. Public Participation in NEPA	8
III. Efficacy of Council on Environmental Quality	12
IV. Needed Amendments and Revisions to NEPA and CEQ Guidelines	14
V. Standing to Enforce Compliance with NEPA	17

Footnotes

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Introduction

George F. Trowbridge, former AEC counsel, has said:

Speaking solely from the standpoint of legislative care and legislative draftsmanship—and without meaning to reflect on the substantive purposes of the law—it (the National Environmental Policy Act¹ is an atrocious piece of legislation. As applied to the licensing activities of Federal (regulatory) agencies..., it is poorly thought out and ambiguous at all of the crucial points....The final product is an invitation to litigation for the next decade.²

In a letter to Congressman John D. Dingell, Chairman of the House Subcommittee on Fisheries and Wildlife Conservation, Russell E. Train, Chairman of the Council on Environmental Quality (CEQ), wrote:

Our view is that the National Environmental Policy Act is so general in its language, so innovative in its procedures and so all-embracing in the range of government activities included that, rather than make new across-the-board requirements, we should evolve appropriate procedures for the various major categories of activity involved.³

In the now famous Calvert Cliffs ⁴ decision the D. C. Circuit Court blasted the AEC's "crabbed interpretation of NEPA" and held that:

NEPA mandates a case-by-case balancing judgment on the part of federal agencies. 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 affect the balance of values.⁵

To the conclusions of some federal counsel that Calvert Cliffs puts to rest the need for continuing review of the way of NEPA applies to federal government operations, Harry H. Voight, Assistant to the Chairman of the Federal Power Commission,

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responds, "The fact is that the decision of the (court) raises more questions than it answers."⁶ Referring to the sweeping language of Section 101(a)'s proclamation of national policy and Section 102's directives to Federal agencies, Voight argues:

Anyone ... who can state the precise meaning of those directives is earnestly requested to stand up and testify. They appear on their face to be what the law calls precatory provisions: conveying a recommendation or giving advice, but not a positive command or direction. We can all join in hoping that regulatory agencies will heed the advice of the Congress While praying even more fervently that no court will try to give those provisions any binding effect. They are simply too evanescent to lend themselves to precise legal interpretation.⁷ (Emphasis added).

As the battle rages, in and out of court, as to whether NEPA conveys substantive rights to a decent environment or is merely precatory and procedural (majority opinion is with the latter interpretation), it has unquestionably subjected the decision-making processes of federal agencies to unprecedented public scrutiny. If vigilance over agency decisions is part of the price of environmental quality, then NEPA has already had some "substantive" effect.

I. PROBLEMS OF NEPA ADMINISTRATION

A. Inadequate Personnel. Most, if not all, federal agencies which must comply with NEPA do not have staffs sufficiently trained in making ecological assessments on proposed actions. Scientifically competent agency personnel, who many feel are in a minority, are generally super specialists who have operated in one small arena for half a lifetime; they lack the ability to conceptualize a broad overview of environmental problems.

The charge of Sec. 102(a)(A) that all agencies "utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and decision-making" is presently impossible for most agencies to comply with. There is a paucity of both funds to attract qualified people and often the ability of the agency to

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understand what constitutes an "interdisciplinary approach." For example, ROMCOE found that one Forest Service "102" statement had utilized an "interdisciplinary team" of six timber management specialists!

The Council on Environmental Quality, with a statutory duty under NEPA to assist, advise, review, recommend and investigate but a de facto duty to administer the Act, is a poor relation in terms of staff and budget when compared to cabinet-level Departments.

B. Difficulty of Defining Environmental Statement Function.

—some agencies consider the "102" statement a somehow magic formula for avoiding confrontations with environmentalists; instead, some statements have themselves created the confrontations because of their lack of substance;

Some environmentalists, on the other hand, felt soon after the passage of NEPA that environmental statements would call a halt to decisions which they felt environmentally harmful; although NEPA has often achieved delay, it is now clear that most agencies consider the relationship between a finding of possible or probable environmental damage and subsequent substantial changes in project planning and implementation to be purely coincidental; for the environmentalists, NEPA is not a panacea after all;

—some agencies interpret the function of a 102 statement as principally one of providing a "checklist" of avoidable adverse environmental effects and irreversible commitments of resources which will result from the "inevitable" continuation of the project; the agency then can flag the problem areas which must be "mitigated" but not avoided;

—citizen environmental organizations have certainly been known to see the environmental statement as the rope by which the agency will hang itself or, to mix metaphors, the ammunition which will propel the agency and the citizens' group into court; this is based on the valid presumption that almost any environmental statement prepared by any agency will be "inadequate" in the view of someone;

—those concerned about the traditional secrecy of much major governmental decision-making look at the 102 statement process as a "discovery" procedure, subjecting

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agency decisions to the glare of public scrutiny; this function, of course, is limited by the frequent absence of timely availability of statements to the public and by lack of prior public knowledge that such a statement exists in the first place; in other words, the use of the 102 procedure as a sort of self-implementing device for public information is not nearly so automatic as some would believe;

—the most prevalent agency interpretation of the function of Section 102(2)(C) is to provide adequate gestures for supporting a fait accompli; that the 102 process is used to justify agency decisions already made is readily admitted to by some agency personnel.

Professor Louis L. Jaffe of Harvard Law School, a member of the CEQ Legal Advisory Committee, notes that:

The statement is simply supposed to candidly explore the proposal's potential favorable and harmful environmental effects and to discuss alternative actions. Thus, a 102 statement must be judged by its candor and not by the environmental effects of the substantive proposal it accompanies.⁸

C. Draft Statements Too Late in Decision-Making Process. Sec. 102 (b) of the Guidelines of CEQ on preparation of environmental statements⁹ provides that "to the maximum extent practicable" no agency action is to be taken "sooner than ninety (90) days after a draft environmental statement has been circulated for comment" or "thirty (30) days after the final text ... has been made available to the Council and the public."

Numerous agency project proposals are irretrievably committed to action years in advance of the actual start of construction. For example, flood control and navigation projects of the Army Corps of Engineers must undergo seven or eight complicated and costly "study" steps...