Prior to Public Law No. 94-83, the 1975 amendment¹ to NEPA, the Second and Seventh judicial circuits had developed strict interpretations of the statute's requirements concerning federal participation in environmental impact statement (EIS) preparation. Both courts reached these conclusions in the context of the peculiar federal-state interaction that surrounds the planning and construction of federal-aid highways. Now both have recanted. The Second Circuit did so earlier this year in Conservation Society of Southern Vermont v. Secretary of Transportation,² after that case had been tersely remanded by the Supreme Court.³ And the Seventh Circuit has now fallen in step by reversing its earlier ruling in Swain v. Brinegar⁴ that the Federal Highway Administration (FHWA) had improperly delegated preparation of an EIS for an interstate highway segment in Illinois to the state highway department.

Unlike the Second Circuit's approval of an impact statement limited to one segment of a larger highway upgrading effort, the Seventh Circuit went on to hold that the focus of the EIS was illegally restricted to a 15-mile segment of a 42-mile highway project. Coming in the wake of the Supreme Court's opinion in Kleppe v. Sierra Club,⁵ the Seventh Circuit's en banc decision in Swain v. Brinegar⁶ reaffirms the necessity for program impact statements under NEPA in situations where incremental federal decision making threatens to foreclose later project alternatives and thereby to predetermine an entire project's environmental consequences.