|
1 ELR 10167 | Environmental Law Reporter | copyright © 1971 | All rights reserved Agencies' Revised NEPA Procedural Compliance Guidelines near Completion, months after deadline for submission to CEQ.On April 30, 1970, the Council on Environmental Quality issued its interim guidelines for implementing [1 ELR 10168] the recently-enacted National Environmental Policy Act of 1969. See Interim Guidelines at 1 ELR 46001. Those guidelines called upon federal agencies to develop systematic procedures detailing how individual agencies would prepare impact statements under § 102(2)(C) of NEPA. Twenty departments, component agencies and commissions complied, and their extensive guidelines were published in ELR's first issue in January 1971. See 1 ELR 46007-46047. On April 23, 1971, CEQ published revised, final guidelines under NEPA. See 1 ELR 46049. These revised guidelines necessitated the updating of agency procedures to comply with CEQ's new rules. CEQ set a deadline of July 1 for submission of revised procedures, but allowed anotherr month for agencies which had to coordinate their procedures with the Office of Management and Budget. Subsequently, all agencies were given until September 15th to incorporate any last-minute changes required by the decision in Calvert Cliffs' Coordinating Committee v. AEC, 1 ELR 20346 (D.C. Cir., July 23, 1971). However, a mid-November ELR survey of more than 50 federal agencies and sub-agencies revealed that while the vast majority were near compliance, only a few had actually published formal revised procedures. This delay has occurred in part because CEQ's revised guidelines themselves required more than mere cosmetic changes in agency procedures. A comparison of the CEQ interim Guidelines of April 30, 1970 with its final Guidelines of April 23, 1971 shows increased emphasis and need for guidance upon the following matters: the types of agency actions which require environmental statements; the appropriate time prior to decision for the interagency consultations required by § 102(2)(C) to take place; the procedure by which the advance comments of the Environmental Protection Agency will be solicited under § 309 of the Clean Air Act, whether or not a 102 statement is filed (see Comment, 1 ELR 10146); adequate treatment of issues so as to permit a careful assessment by commenting agencies; the comments of EPA on water quality aspects of "102 actions" under § 21 (b) of the Federal Water Pollution Control Act; the new minimum 90-day and 30-day periods of public availability for draft and final 102 statements, respectively. A second cause of delay has occurred because at the same time that the CEQ was increasing the stringency of its administratively imposed requirements for better 102 procedures, the courts were beginning to interpret § 102 in such a way as to give agencies second thoughts aboutthe legal adequacy of their procedures. Chairman Train, in a memorandum published in the May, 1971 102 Monitor (p. 2), draws the attention of agencies to the implications for pending procedural revisions of EDF v. Corps of Engineers, 1 ELR 20130 (E.D. Ark., Feb. 19, 1971), and EDF v. Hardin, 1 ELR 20207 (D.D.C., April 14, 1971). In a reference more prescient than he perhaps realized, Chairman Train also cited Citizens to Preserve Overton Park v. Volpe, 1 ELR 20110 (March 2, 1971), as evidence that the courts would require strict procedural compliance with § 102. Two months later in Calvert Cliff's Coordinating Committee v. AEC, 1 ELR 20346 (D.C. Cir., July 23, 1971) the court did in fact hold the AEC to the letter of NEPA in ruling that AEC procedures for compliance "made a mockery of the act." This excoriating opinion, as ELR's survey has confirmed, has raised the spectre in some agencies of a Calvert Cliffs-style confrontation with environmental groups over agencies' procedural guidelines after they are put into effect. These fears are enhanced by the recent opinion in Ely v. Velde, 1 ELR 20082 (4th Cir. Nov. 8, 1971), which overtook the final procedures of the Department of Justice's Law Enforcement Assistance Agency before the ink was hardly dry on them (see 36 Fed. Reg. 20613 (Oct. 27, 1971). The Agency plans to issue redrafted guidelines in the near future. (For a January 1971 ELR Comment suggesting one of the grounds on which the district court in Ely would be reversed, see 1 ELR 10023.) Finally, see Green County Planning Board v. FPC, 1 ELR Dig. [205], in which the rules of the Commission are undergoing stringent challenge in a case similar in some respects to Calvert Cliffs'. A third reason for delay in the agencies' completion of procedures for implementing NEPA arises from the CEQ requirement that mutually agreed upon sub-agencies, or component agencies, should prepare their own separate guidelines. A May 14, 1971 memorandum to agencies from Timothy Atkeson, General Counsel for CEQ, lists departmental components, the programs of which are "… considered to entail significant environmental impacts of a recurring nature, making it desirable for specific program § 102(2)(C) guidance." Because questions may arise subsequently about which agencies and their components must prepare 102 procedures, ELR is providing a complete list of all agencies and sub-agencies for which CEQ was able to obtain apparent agency agreement that formal procedures should be prepared. Bracketed names were dropped from CEQ's list subsequent to the May 14th Atkeson memorandum, while names in parenthesis were added. The reasons for the additions and deletions are unknown, although they ostensibly result from further discussions between agencies and CEQ: Federal Agency Components and Programs for Which It Is Recommended by CEQ that Specific Section 102(2)(C) Procedures be Submitted Agriculture Stabilization and Conservation Service Consumer and Marketing Service [Cooperative State Research Service] [Extension Service] Rural Electrification Administration Appalachian Regional Commission Non-regulatory (operational) activities (Delaware River Basin Commission) Economic Development Administration National Oceanographic and Atmospheric [Defense Atomic Support Agency] Environmental Protection Agency Federal Communications Commission General Services Administration Property Management and Disposal Service (Transportation and Communications Service) Department of Health, Education and Welfare Facilities Engineering and Construction Agency Health Services and Mental Health Administration Department of Housing and Urban Development Assistant Secretary for Housing Production and Mortgage Insurance (public housing, mortgage insurance programs, major subsidy programs) Assistant Secretary for Community Planning and Management (Planning assistance and planning requirements activities, new communities, relocation activities) Assistant Secretary for Community Development (Model cities, urban renewal activities, water and sewer, open space and public facilities assistance) Bonneville Power Administration Bureau of Sport Fisheries and Wildlife Interstate Commerce Commission Law Enforcement Assistance Administration National Aeronautics and Space Administration National Capital Planning Commission Office of Economic Opportunity (Office of Management and Budget) Agency for International Development International Boundary Commission (U.S.-Canada) International Boundary Water Commission (U.S.-Mexico) Federal Aviation Administration Federal Highway Administration Urban Mass Transportation Administration (St. Lawrence Seaways Development Corporation) As of mid-November, about two-thirds of the major agencies and commissions and three-fourths of the sub-agencies on the above list had not made their procedures final. However, the procedures for some important agencies with large environmental impacts were complete or near completion, and the CEQ reports a noticeable increase in procedures submitted as ELR goes to press. This increased rate of submissions is due certainly in part to a terse one-page memorandum dated November 2, 1971 in which Chairman Train reminded delinquent agencies of their responsibilities, concluding: "Continued failure of any agency to establish these procedures can only attract unfavorable Congressional and public comment and possible legal difficulties." Some agencies which have been authorized by statutes otherr than NEPA to take account of environmental values in their decision-making processes have experienced delays in merging NEPA's requirements with those of this pre-existing legislation. The experience of the Federal Highway Administration, crystallized in its experience with the recently promulgated Policy and Procedures Memorandum 90-1, is indicative of the situation faced by several otherr [1 ELR 10170] agencies as well. A less common cause for delay is experienced by agencies with several distinct programs administered by different sub-agencies with overlapping jurisdictions. An example of such distinct but intersecting programs is found in HUD where the new community and public housing programs may result in the location of a public housing project in a new community. Sorting out the environmental responsibilities of the various agency components involved in such joint projects can be as difficult within an agency as it is between agencies. The difference is that intra-agency relationships of this sort must be predicted and provided for with regularity in the guidelines drawn up by the sub-agencies themselves. Other reasons given for agency delay include, not surprisingly, the press of otherr agency work, inadequate or untrained staffing, and the slow process of intra-agency or inter-agency consultation which requires more time than CEQ has allowed. Yet ELR's survey revealed that with the exception of certain agencies in which environmental awareness and movement were hardly discernible, delay tended to reflect, not bureaucratic inertia, or recalcitrance in the face of a statute which promises to revolutionize agency practices, but a healthy caution about neglect of NEPA procedures and about possible difficulties later if field offices do not take the steps necessary to comply adequately with NEPA. For some agencies, education of field personnel to NEPA's requirements has been a major problem. Litigation initiated by citizens groups has aided at least one agency in this difficult educational process. A spokesman for HUD said that the decision of Oregon Federal District Court in Goose Hollow Foothills League v. Romney, 1 ELR 20492 (D.Ore. Sept. 9, 1971), finding NEPA applicable to a HUD-funded university dormitory construction project has prompted a greater interest in NEPA requirements at the operational level. The manner in which two departments and their component agencies are complying with CEQ guidelines will illustrate the kinds of problems which ELR encountered in its survey. As ELR went to press the Department-wide procedures were on the Secretary's desk for signature. It was unclear if Secretary Hardin's resignation would prompt him to leave the procedures for the approval of his successor. All component agencies, except the Forest Service (USFS), the Rural Electrification Agency (REA), the Soil and Conservation Service (SCS), and the new Animal and Plant Health Services (APHS) will rely on the Department-wide procedures. USFS's, SCS's and REA's guidelines are final, except that SCS's guidelines are contingent upon the departmental guidelines' being approved. APHS guidelines will be completed by November 30th. Calvert Cliffs definitely influenced the Department's review of procedures; however, the Department's position is that its earlier guidelines adequately met the interpretation of NEPA which Calvert Cliffs advanced. Agriculture has emphasized intra-departmental consultation, and, according to an agency spokesman, it takes time to have "so many facets reviewed by so many people." Departmental guidelines are final and have been published in the Federal Register. The Economic Development Administration (EDA) is in the fourth phase of revision of a short EDA Directive on NEPA compliance that heretofore has been buried among otherr agency procedures and has not generally been made public — "the full set of our Directives is about four feet thick," according to an Administration spokesman. The Directive should be reissued within one to two months. The Directive, when reissued, will be brief and will establish a filter mechanism for catching significant agency actions to which full § 102 treatment can be applied under NEPA and CEQ guidelines, which will be controlling in almost every instance. The Administration is obligated by OMB memorandum A-95 to coordinate its NEPA compliance with the Office of Management and Budget. The Administration spokesman would not comment directly on the impact of Calvert Cliffs' or otherr factors which might have caused the delay. Commerce's Maritime Administration complied by issuing final guidelines on November 8th. No particular reason was offered for being late, even though the Administration has made only cosmetic changes in CEQ guidelines before largely adopting them as its own. The National Bureau of Standards is waiting for the Department to advise it what to do. The Train memorandum of November 2, supra, caused concern in the Bureau. Dr. Robert Ferguson, who is in charge of developing Bureau procedures, will try to incorporate by reference CEQ and Commerce guidelines, in order to keep the Bureau's procedures simple for the few 102 statements which the Bureau will have to prepare. The National Oceanographic and Atmospheric Administration will be quite late in setting up its separate procedures. In the meantime, NOAA will rely upon departmental guidelines and upon some rough internal guidelines hastily assembled before the new Office of Ecology and Environmental Conservation was set up last May. However, when procedure formulation begins in earnest, two separate matters will be emphasized: how to prepare statements, and more importantly, how to prepare comments on otherr agencies' statements. NOAA expects to be inundated with 102 statements for its comment. On the otherr hand, an attorney with environmental responsibilities in the Office of General Counsel for Commerce stated that NOAA will not need guidelines in addition to those which Commerce has now made final. The major problem facing the environmental lawyer [1 ELR 10171] in connection with NEPA procedures is their unavailability. Frequently, agencies do not publish their procedures in the Federal Register, nor do they otherrwise make them publicly available in agency press releases or publications (e.g., NOAA and EDA, supra.). CEQ has discussed the possibility of publishing procedures forwarded to it in the Register, whether or not the agencies publish them independently. If CEQ takes this step it will do so after having repeatedly urged the agencies to publish their own rules under their own procedures. It is not clear that agencies are required to publish these procedures by the Administrative Procedures Act. In any event, ELR will continue its practice of publishing procedural compliance guidelines, in accordance with the policy set out in the January, 1971 issue, at 1 ELR 46007. As soon as this round of procedural revisions is complete, ELR will publish them in the same manner as it published earlier procedures at 1 ELR 46007-46047. ELR users whose present needs for information about agency 102 compliance procedures are not met by this comment should contact the Editor-in-Chief for the current status of guidelines for the agency of interest. In the future NEPA compliance guidelines will be published as they are released by the agencies. 1 ELR 10167 | Environmental Law Reporter | copyright © 1971 | All rights reserved |