The comment is often made that the states are experimental laboratories for environmental legislation.¹ In the instance of the National Environmental Policy Act of 1969 the opposite has been the case. The federal government has served as an experimental laboratory for the various states. The experiment has proven successful, and that states are now adopting their own "little NEPAs." It is the purpose of this article to summarize the state provisions.

Seventeen jurisdictions have followed the federal lead.² Ten states and Puerto Rico have legislatively adopted little NEPAs of general application,³ two states have legislatively adopted little NEPAs of limited application,⁴ and four states have administratively promulgated NEPA equivalents.⁵

Some reference to the provisions of the National Environmental Policy Act⁶ is necessary to an analysis of state measures patterned upon it. NEPA did several things. It (1) established a national policy for the environment;⁷ (2) created certain "action-forcing" devices to insure that the policy was implemented;⁸ and (3) established a Council on Environmental Quality.⁹ It is with the second of these categories that this article is most concerned.

In his statement on the Senate floor urging passage of NEPA in 1969, the measure's author, Senator Henry Jackson of Washington, termed the bill "the most important and far-reaching environmental and conservation measure ever enacted by the Congress."¹⁰ To insure that the policies and goals defined in the act were infused into the ongoing programs and actions of the federal government, there were established what he termed "action-forcing" procedures.¹¹ These included the directive to all federal agencies to administer their laws in conformity with NEPA's policies, to assure consideration of the environmental impact of their actions, and to consult those with expertise.¹² This article will analyze the extent to which states have adopted provisions dealing with (1) policy (both establishment of it and an obligation to adhere to it); (2) environmental impact considerations, [3 ELR 50091] with specific reference to environmental impact statements;¹³ and (3) consultation with those with expertise.¹⁴ The article will conclude with an analysis of some of the ways on which individual state laws have built upon or otherwise departed from the federal pattern.

I. Policy

Implementable policy provisions require both a declaration of that policy and an obligation to adhere to it.

A. Declaration of Policy

The declarations of policy are vital. It is those stated goals which the various action-forcing mechanisms are intended to achieve. Indeed, in the most far-reaching of state environmental policy act cases, Friends of Mammoth v. Mono County,¹⁵ the California Supreme Court rested its construction of operative provisions in part upon the policy statements at the beginning of the act.

The "purpose" and "policy" provisions of NEPA are found in sections 2¹⁶ and 101.¹⁷ These provisions are tracked almost verbatim in the laws of Indiana,¹⁸ Montana,¹⁹ and Washington.²⁰ Connecticut,²¹ Puerto Rico,²² and Wisconsin²³ have provisions clearly patterned upon those of NEPA. California's policy provisions depart from but are no less rigorous than those of NEPA.²⁴ The other states with legislatively adopted environmental policy acts of general application, Massachusetts,²⁵ New Mexico,²⁶ North Carolina,²⁷ and Virginia,²⁸ all have policy provisions watered-down in varying degrees from the NEPA original.

B. Obligation to Follow Policy

Every state statute and executive order imposes some obligation to follow the state's environmental policy. NEPA's primary directive is found in § 102(1) requiring that to the fullest extent possible policies, regulations, and laws be "interpreted and administered" in accordance with the National Environmental Policy.²⁹ This obligation is reinforced by sections 101(b) (requiring the federal government to use "all practicable means" to implement stated policies)³⁰ and 102(2) (B) (requiring "appropriate consideration" to environmental values along with economic and technical considerations).³¹ The federal provisions [3 ELR 50092] are essentially repeated in the laws of Indiana,³² Montana,³³ Puerto Rico,³⁴ and Washington.³⁵ The main thrust of NEPA's provisions appears in the legislation adopted by New Mexico,³⁶ North Carolina,³⁷ and Wisconsin.³⁸ California's provisions are not patterned on the federal ones, but must be seen as at least their substantial equivalent.³⁹ The laws of Connecticut,⁴⁰ Massachusetts,⁴¹ and Virginia⁴² impose lesser obligations.

II. Environmental Impact Considerations

The requirement that environmental effects of decisions be considered through the device of the environmental impact statement is surely the most innovative and far-reaching of NEPA's provisions.⁴³ In one form or another all seventeen of the jurisdictions to have followed the federal lead make use of the EIS. Section 102(2) (C) of NEPA requires all agencies of the federal government to:

(C) Include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on —

(i) The environmental impact of the proposed action,

(ii) Any adverse environmental effects which cannot be avoided should the proposal be implemented,

(iii) Alternatives to the proposed action,

(iv) The relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and

(v) Any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.⁴⁴

An evaluation of the state EIS provisions requires examination of several aspects of the scope of their coverage:(a) the elements of the state EIS; (b) whether an EIS is required for local government as well as state government activity; and (c) the breadth of the EIS requirement in terms of (i) extent of governmental activity covered and (ii) whether private activity is covered.

A. Elements of the State Environmental Impact Statement

Section 102(2) (C) of NEPA requires the environmental impact statement to contain the five elements quoted above.⁴⁵ Those same elements are required by the laws of Indiana,⁴⁶ Montana,⁴⁷ New Mexico,⁴⁸ Puerto Rico,⁴⁹ and Washington,⁵⁰ as well as by the Hawaiian executive order.⁵¹ The legislation of several states goes beyond the federal act, requiring additional elements. For instance, both California⁵² and North Carolina⁵³ list as a separate requirement "Mitigation measures proposed to minimize the impact." Virginia has a similar provision.⁵⁴ The Michigan executive directive imposes a comparable requirement: "The possible modifications to the project which would eliminate or minimize adverse environmental effects, including a discussion of additional costs involved in such modifications."⁵⁵ While mitigation is implicit in federal law,⁵⁶ the explicit requirement leaves no doubt about its applicability.

California law imposes another requirement which, while also implied under the federal guidelines,⁵⁷ seems [3 ELR 50093] too important a matter to leave solely to administrative interpretation. The element is "the growth-inducing impact of the proposed action."⁵⁸ The concept embodied in the requirement, that of consideration of secondary consequences, is surely one of the lessons repeatedly learned in this time of environmental awareness. Not only does a highway or an airport cause certain environmental disruptions incident to its construction, and not only do the automobiles or aircraft which use it cause certain air and noise pollution consequences, but the facility itself fosters population growth and resulting land use changes. We have only to look at the cities sited at harbors and along rivers and railroads and at the strip development along highways to realize that these secondary consequences of a facility may be the most profound ones. California's explicit requirement that these impacts be evaluated greatly enhances the vitality of the legislation.

The Wisconsin law has an element of quite another sort, clearly designed to insure consideration of the benefits, particularly economic, of the proposal. The EIS is to contain "details of the beneficial aspects of the proposed project, both short term and long term, and the economic advantages of the proposal."⁵⁹ Connecticut imposes a requirement which combines the Wisconsin approach with some of the phraseology of NEPA's section 102(2) (C) (iv). Each EIS is to include "an analysis relating the costs and benefits of the proposal over the short term to the costs and benefits over the long term."⁶⁰

The other state laws and administrative orders are abridgements of NEPA's section 102(2) (C), containing some but not all of the elements.⁶¹

B. Applicability of State Law to Local Governments

In the United States the most pervasive of environmental regulations, land use decisions, have traditionally been the prerogative of local government. Zoning, planning, conditional uses, building permits, and variances touch citizens more directly than any other laws pertaining to the environment.⁶² Much of the real impact of a state's EIS requirements must therefore depend upon the twin questions of whether those requirements extend to local government and to public permission of private activity (discussed infra, para. 1 (c)).⁶³

Only the laws of California,⁶⁴ Massachusetts,⁶⁵ Puerto Rico,⁶⁶ and Washington⁶⁷ appear to impose environmental impact statement requirements upon local governments. North Carolina permits local governments to require environmental impact statements for "major development projects,"⁶⁸ but the authorization has not received much use.⁶⁹

C. Applicability of State Law in Terms of (a) Extent of Governmental Activity Covered and (b) Whether Private Activity is Covered

The other essential of a law that reaches all decision making that significantly affects the human environment is that its scope extend to public permission of private activity. The CEQ Interim Guidelines issued a few months after the enactment of NEPA made clear that the federal law did extend to actions involving federal funding or permitting private activity.⁷⁰ (This scope of NEPA was reiterated in the Guidelines issued a year later.⁷¹) In the Interim [3 ELR 50094] Guidelines of April, 1970, the Council on Environmental Quality defined "actions," NEPA's operative term, as follows:

(a) "Actions" include but not limited to:

(i) Recommendations or reports relating to legislation and appropriations;

(ii) 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 assistance;

Involving a Federal lease, permit, license, certificate or other entitlement for use;

(iii) Policy — and procedure making.⁷²

The Interim Guidelines assume immense importance for state acts because they were adopted prior to the enactment of any of the state laws.⁷³ The definitions in the federal act and in these regulations became part of the legislative history of the state laws and must be considered in interpreting them.⁷⁴

What then is the reach of the state acts?Of the environmental impact statement requirements of general application, that of California explicitly applies to publicly permitted private activity.⁷⁵ Those of Montana,⁷⁶ New Mexico,⁷⁷ Puerto Rico,⁷⁸ Washington,⁷⁹ and Wisconsin⁸⁰ follow the federal act's phraseology.⁸¹ Indiana is also patterned upon NEPA's 102(2) (C)⁸², but another section explicitly states that the act is not to apply to licenses or permits.⁸³ Connecticut's act is restricted to projects directly undertaken by state agencies or funded in whole or in part by the state.⁸⁴ North Carolina's legislation requires environmental impact statements on proposals for legislation and "actions involving expenditure of public monies."⁸⁵ (As noted above, the North Carolina statute also authorizes local governments to require statements for public or private "major development projects."⁸⁶) Virginia's law is still more constricted, applying only to major state facilities which state agencies propose to construct.⁸⁷ (Highway and road construction is specifically excluded.⁸⁸) The Massachusetts law bars specified governmental entities from commencing "any work, project, or activity" which may cause environmental damage until the report has been prepared.⁸⁹

Of the two state executive orders of general application⁹⁰ that of Michigan refers to state agency "activities," but the individual elements of the EIS are phrased in terms of "action."⁹¹ That of Hawaii extends to legislative proposals and other major state "actions or projects utilizing State funds and/or State lands."⁹²

Other state provisions are restricted by type of activity or by geography. The Nevada law requires permit applications for public utility facilities to include a summary of environmental impact studies, and the state is mandated to consider alternatives as part of environmental impact.⁹³ Arizona's provision is a Game and Fish Commission policy extending to water-oriented development projects.⁹⁴ The Delaware law is geographically restricted. As part of that state's comprehensive Coastal Zone Act, permits are required for manufacturing land uses and expansions or extensions of non-conforming uses within the [3 ELR 50095] coastal zone.⁹⁵ Requests for such permits must be accomplied by environmental impact statements.⁹⁶

III. The Obligation to Consult

Section 102(2) (c) of NEPA imposes an obligation on the responsible federal official to consult with and obtain the comments of any federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved.⁹⁷ This provision was one of the action-forcing measures described by Senator Jackson.⁹⁸ It is repeated with only slight modification in the laws of California,⁹⁹ Connecticut,¹⁰⁰ Indiana,¹⁰¹ Massachusetts,¹⁰² Montana,¹⁰³ North Carolina,¹⁰⁴ Puerto Rico,¹⁰⁵ Washington,¹⁰⁶ and Wisconsin.¹⁰⁷

IV. State Legislative Department From NEPA

The state environmental policy acts have built upon NEPA, some adding considerably to it. The difference in the elements required (para. 2(a), supra) and in the scope of the acts' coverage (paga. 2(c), supra) have already been discussed.The other provisions novel to particular jurisdictions are best discussed in the context of the particular states.

Of the various little NEPA's, none has generated as much controversy or received as much attention as the California Environmental Quality Act.¹⁰⁸ The state act was clearly patterned upon NEPA,¹⁰⁹ but had its points of difference. The most important of these was the use of the term "project" instead of "'action' as the act's operative term."¹¹⁰

When the act became effective in November, 1970,¹¹¹ the question whether "project" extended to public permission of private activity was left as the major unresolved issue. In June, 1971, the State Resources Agency proposed but did not adopt guidelines limiting the scope of the act essentially to public works projects.¹¹² In September of that year the Attorney General filed a petition asserting that indeed the act's scope did extend to public permission of private activity.¹¹³ He stated that the policy statements of the Act (which referred to the regulation of private activity) could not be implemented were its scope to be constricted so as to exclude such activity.¹¹⁴ The Attorney General further noted that the term "project" as it was used in the CEQ Interim Guidelines had to be seen as part of the state act that was patterned upon the federal one.¹¹⁵ Those Guidelines define "project" as one of the three components of the term "action" (see para. 2(c), supra), a concept which includes public permission of private activity.¹¹⁶ The question remained unresolved.

The following year the Friends of Mammoth, an association of homeowners, resolved to preserve their area, which would be characterized by the California Supreme Court as "one of the nation's most spectacularly beautiful and comparatively unspoiled treasures."¹¹⁷ A developer proposed to build some six condominiums, each with a height of from six to eight stories.¹¹⁸ The Mono County Planning Commission approved conditional use permits and building permits for the first two of these structures.¹¹⁹ The relief sought by the Friends of Mammoth at the administrative level and in the lower courts was denied.¹²⁰ They appealed to the California Supreme Court, which stayed the developer's activities pending its disposition of the matter.¹²¹ At this point the Attorney General of California and the Sierra Club¹²² entered the [3 ELR 50096] case as amici curiae, essentially asserting the position previously taken by the Attorney General in his petition.¹²³

On September 21, 1972, the court decided the case.¹²⁴ Speaking for a six to one majority Justice Stanley Mosk wrote, "The EQA was designed to be a milestone in the campaign for 'maintenance of a quality environment for the people of this state now and in the future.'"¹²⁵ The court discussed the legislative history, the policy section, and the use of the term "project" in NEPA's Interim Guidelines. In order to "afford the fullest possible protection to the environment within the reasonable scope of the statutory language," the court concluded that the legislature necessarily intended to include "private activities for which a government permit or other entitlement for use is necessary."¹²⁶ Before an environmental impact report becomes required, the government must have "some minimal link with the activity, either by direct proprietary interest or by permitting, regulating, or funding private activity."¹²⁷

An uproar resulted.¹²⁸ Amid widely publicized building freezes¹²⁹ and a certain amount of "manufactured hysteria"¹³⁰, the various interest groups converged on the legislature, which was reconvening after a recess. Recognizing that there were legitimate problems associated with the transition to full implementation of the Environmental Quality Act as interpreted in Mammoth, bipartisan leadership¹³¹ resolved to put together a bill which would take into account the justifiable concerns of each interest group. This would not be easy, since legislation to take immediate effect in California requires a two-thirds vote of each house. Any group which could muster one-third plus one of one house could scuttle the consensus. The resulting bill, which while not completely satisfactory to anybody, gave everybody what they felt they most needed. The outcome is the present California Environmental Quality Act, the most complex of the state environmental policy acts.

Business and labor were given a 120 day moratorium as lead time to gear up for the new procedures.¹³² Unless they were under judicial challenge, past actions were validated to provide certainty.¹³³ Guidelines were to be adopted by the State Resources Agency within 60 days,¹³⁴ and conforming guidelines by all other state and local agencies in another 60 days,¹³⁵ so that at the end of the 120 day moratorium there would be regulations to make more specific the terms of the Environmental Quality Act.¹³⁶ In order that there might be a date after which construction could proceed without being subject to further challenge, statutes of limitation were added to the act.¹³⁷

Local government, which would have to bear the main brunt of administering the act, supported the moratorium, the guidelines, and the statute of limitations. A provision was added to the act making the environmental impact statement requirement apply to discretionary as distinct from ministerial projects,¹³⁸ the argument being that an EIS was an aid to discretion and should be prepared at the time such discretion was exercised rather than, for example, when a clerk was later performing a ministerial function. Finally, government agencies received explicit statutory authority to pass on the cost of preparing the environmental impact statement to the applicant.¹³⁹ This results in internalizing the environmental costs of the project rather than burdening the general taxpayer. The provision reads:

A public agency may charge and collect a reasonable fee from any person proposing a project subject to the provisions of this division in order to recover the estimated [3 ELR 50097] costs incurred by the public agency in preparing an environmental impact report for such project.¹⁴⁰

The environmentalists' clearest victory was in preserving the Environmental Quality Act and the Mammoth decision, both of which had been threatened in the uproar following the decision. Indeed, the legislature explicitly wrote the Supreme Court's holding into the legislation¹⁴¹ and stated that this was declaratory of existing law.¹⁴² The environmentalists further succeeded in closing a loophole in the act. The Environmental Quality Act had provided that any city or county with a conservation element of a general plan need not prepare an EIS.¹⁴³ The potential for widespread avoidance of the environmental impact statement process was ended with the deletion of the exception.¹⁴⁴

California's appellate courts have not been lax in implementing the act. In a case involving a project which would increase a water district's capacity, the Court of Appeal followed federal law to establish the proposition that the adequacy of an environmental impact report would be reviewed by the courts.¹⁴⁵ In a recent case another district of the Court of Appeal also relied upon federalprecedents to treat Los Angeles' continuing and expanding extraction of water from wells in Inyo County as an ongoing project requiring anenvironmental impact report.¹⁴⁶ The report, said the court, is to be "an environmental 'alarm bell' whose purpose it is to alert the public and its responsible officials to environmental changes before they have reached ecological points of no return."¹⁴⁷ Public agencies must "pause, even though belatedly, to focus their attention upon and give primacy to ecological considerations."¹⁴⁸ The court concluded:

Only if such careful and balanced review precedes [public agency] action can they assure that the inheritance of nature from man's yesterday is not subjected to the unintended abuse of today to the irreversible loss of tomorrow.¹⁴⁹

Federal courts can also construe state environmental policy acts. Keith v. Volpe¹⁵⁰ involved a suit in federal district court to bar both federal and state defendants from continuing with a highway project until there was compliance with both NEPA and the California Environmental Quality Act. The court found the resemblance between the two laws to be "so uncanny" that the same considerations ought to govern the applicability of both to the freeway in question.¹⁵¹

The New Mexico act has also received appellate judicial attention. In a recent case involving alleged noncompliance by a state agency with the state's environmental policy act, the court of appeals disposed of the state's argument:

Appellee contends that to elevate this section "to the status of a condition precedent to the exercise of an agency's regulatory functions would, in effect, suspend, amend, or modify the authority of an agency to act pursuant to its specific statutory mandate pending performance of the obligations imposed." That is precisely what the Legislature intended.¹⁵²

As the federal case law has devoted considerable attention to the substantive obligations of NEPA,¹⁵³ so have the state enactments and court decisions. Some are explicit. For instance the Massachusetts law provides:

Any determination made by an agency of the Common-wealth shall include a finding describing the environmental impact, if any, of the project and a finding that all feasible measures have been taken to avoid or minimize said impact.¹⁵⁴

Similarly the California Law governing the State Lands Commission¹⁵⁵ provides that the Commission "shall not lease any of the lands under its jurisdiction unless it shall [3 ELR 50098] have made a finding at a public meeting that such lease will not have a significant detrimental environmental effect."¹⁵⁶

The Nevada Utility Environmental Protection Act provides similar guarantees. Approval of a utility facility requires a finding that the facility "represents the minimum adverse environmental impact" considering technology, economics, and alternatives.¹⁵⁷

Like the federal act,¹⁵⁸ California's environmental policy act of general application contains no specific provision pertaining to the decision which follows preparation of the EIS, but the legislative purpose has been said by the California Supreme Court to require implementation:

Obviously if the adverse consequences to the environment case be mitigated, or if feasible alternatives are available, to proposed activity, such as the issuance of a permit, should not be approved.¹⁵⁹

Two of the acts have useful provisions that deserve mention.¹⁶⁰ North Carolina's legislation authorizes any state agency to call on any of the public institutions of higher learning for assistance.¹⁶¹ A provision in the Massachusetts act deals innovatively with the problem of funding the environmental impact review by commenting agencies. The legislation provides that funds made available for a project may be transferred to other agencies for the purpose of meeting the expenses incurred in evaluating the environmental impact report.¹⁶²

Conclusion

The National Environmental Policy Act of 1969 has been characterized as our most important legislative act of the decade and as the nation's "environmental constitution."¹⁶³ In the words of one state court, it was "surely intended" that NEPA's state progeny "would fulfill as important a role and have as profound an impact as the national act."¹⁶⁴

1. See, e.g., Council on Environmental Quality, Second Annual Report 37-38 (August 1971).

2. In preparing this article I am indebted to the following sources for lists of state environmental impact requirements: Center for California Public Affairs, Survey of State Environmental Policy Acts, dated February 1, 1973; Environmental Law Institute, 1 ELR 10177; Council on Environmental Quality, Third Annual Report; Office of Planning and Research of the State of California, List of States with EIS Requirements; Trzyna, Environmental Impact Requirements in the States, prepared for Office of Research and Monitoring, Environmental Protection Agency, reprinted in Council on Environmental Quality, 102 Monitor, Vol. 3, No. 3, April 1970, at 21 et seq. (hereinafter cited as Trzyna).

3. California (Pub. Res. Code § 21000 et seq.), ELR 43010; Connecticut (Pub. Act. No. 73-562, approved June 22, 1973, see footnote 5 infra); Indiana (§ 35-5301 et seq.); Massachusetts (C.30, § 61 et seq.); Montana (§ 69-6501 et seq.); New Mexico (§ 12-20-1 et seq.); North Carolina (Sess. Laws — 1971, Chap. 1203); Puerto Rico (T. 12 § 1121 et seq.); Virginia (Chap. 384, approved March 15, 1973); Washington (§ 43.21 C010 et seq.); and Wisconsin (Chap. 273, Laws of 1971).

4. Delaware (7§ 7001 et seq.); Nevada (§ 704.820 et seq.).

5. Arizona (Game and Fish Commission policy of July 2, 1971; Policy Memo, Requirements for Environmental Impact Statements, of June 9, 1971; Hawaii (Executive Order of Governor, August 23, 1971); Michigan (Executive Directive 1971-10, issued by Governor); and Texas (Policy for the Environment adopted January 1, 1973). Connecticut's law takes effect February 1, 1975. (Pub. Act. No. 73-562, supra, note 3, § 8.) There is presently in effect an executive order. (Exec. Order No. 16 issued by Governor Oct. 14, 1972.)

[Ed.'s note. As this article was being written yet another state law was added to the growing list of "little NEPA's." On July 1, 1973, the Maryland Environmental Policy Act of 1973 (Ch. 702, Md. Laws of 1973) went into effect. Under the provisions of the Act state agencies (but not local and private agencies) are required to file environmental effects reports for state actions substantially affecting the environment.]

6. 42 USC § 4321-4347.

7. NEPA, § 101.

8. NEPA, § 102.

9. NEPA, § 202.

10. 115 Cong. Rec. 40416 (Dec. 20, 1969).

11. Id. See Calvert Cliffs v. AEC, 449 F.2d 1109, 1113, 1 ELR 20346, 20348 (D.C. Cir. 1971); Greene County Planning Board v. FPC, 455 F.2d 421, 415, 2 ELR 20017 (2d Cir. 1972), cert. den. 41 U.S.L.W. 3184 (1972); E.D.F. v. Corps of Engineers, 470 F.2d 289, 294, 2 ELR 20740, 20742 (8th Cir. 1972).

12. 115 cong. Rec. 40416, supra note 10; see Council on Environmental Quality, Third Annual Report, supra note 2, at 222-224.

13. The terms "environmental impact statement" and "environmental impact report" are used synonymously in this article.

14. The scope of the article does not extent to the creation of state agencies patterned upon the Council on Environmental Quality since pre-existing or independently created state agencies may fulfill the function.

The following illustrate the variety of approaches followed. Montana's state environmental policy act creates an Environmental Quality Council, a majority of whose members are state legislators. (§ 64-6508.) The balance consists of the Governor or his designee and members of the public appointed by the Governor. (Ibid.) New Mexico's Council on Environmental Quality follows the federal pattern of three executive appointees with environmental backgrounds. (§ 12-20-2.) Puerto Rico's Board on Environmental Quality combines three public members appointed by the Governor who are to have environmental backgrounds with four state officers as ex-officio members. (T.12 § 1129.) Connecticut's legislation creating a Council on Environmental Quality preceded its environmental impact legislation. Appointments to the nine-member council are made by the Governor, the Speaker of the House, and the President Pro Tempore of the Senate. (§ 22a-11.) The executive orders of both Hawaii and Michigan place the environmental impact coordinating requirements upon existing state agencies. (Hawaii Executive Order, supra, note 5, § 2; Michigan Executive Directive, supra, note 5, p. 2.).

15. 8C3d 247, 256, 4 ERC 1593, Mod. 1705, 2 ELR 20673 (Cal. Sup. Ct. 1972).

16. 42 USC § 4321.

17. 42 USC § 4331.

18. §§ 35-5301-5302.

19. §§ 69-6502-6503. The Montana enactment goes further than the federal one. While NEPA shows a congressional recognition that "each person should enjoy a healthful environment" (§ 101(c)), Montana's legislative assembly recognizes that "each person shall be entitled to a healthful environment." (§ 69-6503(b)).

20. §§ 43.21C010-020. Washington goes yet a step further than Montana with a legislative recognition that "each person has a fundamental and inalienable right to a healthful environment" (§§ 43.21C.020(3)).

21. Pub. Act No. 73-562, supra note 3, §§ 1-2; also see Chap. 439, § 22a-1.

22. T.12 §§ 1122-1123. Puerto Rico's law has interesting changes of wording that may result from double translations. For instance NEPA's "healthful … surroundings" (§ 101(b) (2)) turns up in Puerto Rico's law as "salubrious … landscapes" (T.12 § 1123(b) (2).

23. Chap. 273, Laws of 1971, § 1.

24. Public Resources Code §§ 21000-21001. Like Montana and Washington some of the California provisions evidence a stronger state commitment to environmental protection than do their federal counterparts. For instance Pub. Res. Code § 21001(d) provides that it is state policy to "[e]nsure that the long-term protection of the environmental shall be the guiding criterion in public decisions." The Legislature intends that regulatory activities be carried out "so that major consideration is given to preventing environmental damage." (Pub. Res. Code § 21000(g)). State policy requires taking "all action necessary to protect, rehabilitate, and enhance the environmental quality of the state." (Pub. Res. Code § 21001(a).).

25. C.30, § 61.

26. § 12-20-1.

27. Chap. 1203, Sess. Laws — 1971, §§ 2-3.

28. Chap. 384, supra note 3, § 1(a).

29. 42 USC § 4332(1).

30. 42 USC § 4331(b).

31. 42 USC § 4332(2) (B). Also note sections 103 through 105, 42 USC §§ 4333-4335.

32. §§ 35-5302(b), 5303(1), 5303(2) (b).

33. §§ 69-6503(a), 6504(a), 6504(b) (2).

34. T.12§§ 1123(b), 1124(1), 1124(2) (B).

35. §§ 43.21C.020(2), 43.21C.030(1), 43.21C.030(2) (b).

36. §§ 12-20-6.

37. Chap. 1203, Sess. Laws — 1971, § 4.

38. Chap. 274, Laws of 1971, §§ 1(3), 1.11(1).

39. Pub. Res. Code §§ 21000-21001; c.f., Friends of Mammoth v. Mono County, supra note 15.

40. Pub. Act. No. 73-562, §§ 1(b), 2(a).

41. C.30, § 61.

42. Chap 384, approved Mar. 15, 1973, § 6.

43. Perhaps the success of the environmental impact statement requirements in the courts is due in part to the receptivity of some judges not otherwise hospitable to environmental interests to what they perceive as procedural conditions precedent to specified government action.

Of course the EIS requirement in both NEPA and the state acts is restricted to those cases where the action significantly affects the environment, 42 U.S.C. § 4332 (2) (C); Guidelines, infra note 45, § 5 (b).

44. 42 USC § 4332(2) (C).

45. The guidelines issued by the Council on Environmental Quality expand upon and further define the requirements. 36 Fed. Reg. 7724-7729 (April 23, 1971), § 6. These have recently been revised and reissued. See 38 Fed. Reg. 20549 (Aug. 1, 1973), ELR 46003.

46. § 35-5303(2) (c).

47. § 69-6504(b) (c).

48. § 12-20-6(c).

49. T.12 § 1124(c) (C). The wording differs slightly but not substantively.

50. § 43.21C.030(2) (c).

51. Executive Order, supra note 5, § 1(b).

52. Pub. Res. Code § 21100(c).

53. Chap. 1203, Sess. Laws — 1971, § 4(2) (c).

54. Chap. 384, Approved March 15, 1973, § 2(3): "Measures proposed to minimize the impact of the proposed construction."

55. Executive Directive, supra note 5, § 4.

56. The CEQ Guidelines, supra note 45, under their discussion of alternatives require a rigorous explanation and objective evaluation of alternative actions that might avoid "some or all of the adverse environmental effects …" § 6(a) (iv).

57. Id., § 6(a)(ii). In discussing the impact of a proposed action on the environment the Guidelines state:

Both primary and secondary significant consequences for the environment should be included in the analysis. For example, the implications, if any, of thue action for population distribution or concentration should be estimated and an assessment made of the effect of any possible change in population patterns upon the resource base, including land use, water, and public services, of the area in question.

58. Pub. Res. Code § 21100(g).

59. Chap. 274, Laws of 1971, § 1.11(2) (c) (6).

60. Pub. Act No. 73-562, § 2(c); see Executive Order, supra note 5, § 3.

61. Arizona, Game and Fish Commission Policy, supra note 5; Connecticut, Pub. Act No. 73-562, § 2(b), also see Executive Order, supra note 5, § 2; Delaware, 7 § 7002(c), also see 7 §§ 7004(b)(1), 7005; Massachusetts, C 30, § 62 (the Massachusetts law requires that state implementing regulations conform to NEPA, § 62); Michigan, Executive Directive, supra, note 5; Nevada, §§ 704.870(1) (b), 704.890(1) (c); North Carolina, Chap. 1203, Sess. Laws — 1971, § 4(2) (other than the additional element listed in note 53 the law differs from NEPA only in requiring that the "adverse effects" be "significant" (§ 4(2) (b)); Virginia, Chap, 384, approved March 15, 1973, § 2.

62. Though one may speculate that in many parts of the country implementation of the Clean Air Amendments of 1970 will rival land use decisions as most directly affecting the day to day lives of individual citizens. 42 USC § 1857 et. seq.

63. The scope of this article does not extend to environmental impact requirements imposed by local governments independent of any state law. However, it is my understanding that some local entities have adopted such procedures.

64. Pub. Res. Code §§ 21150-21154.

65. C.30 § 62 (applies to "any political sub-division" of the Commonwealth).

66. T.12 § 1124(2). While other references in § 1124 are to the "Commonwealth," the EIS requirement is placed on "all agencies of the government." § 1125 then refers, under "duties of government agencies," to every "agency, municipality and instrumentality of the government."

67. § 43.21C.030(2) (applies to "all branches of government of this state, including state agencies, municipal and public corporations, and counties.").

68. Chap. 1203, Sess. Laws — 1971, § 8. "Major Development Projects" includes but is not limited to shopping centers, subdivisions and other housing developments, and industrial and commercial projects, but does not extend to projects of less than two contiguous acres. § 9(4).

69. Trzyna, supra note 1, at 28. As of mid-1972 only one local government had acted.

70. 35 Fed. Reg. 7390, 1 ELR 46001 (April 30, 1970), § 5(a).

71. Supra note 45 § 5(a).

72. Supra note 70, § 5(a).

73. The Interim Guidelines were published in the Federal Register of April 30, 1970 (supra note 70). The first "little NEPA" was that of Puerto Rico, enacted June 18, 1970.Trzyna, supra note 2, at 28. The first state law was that of California. Trzyna, supra note 2, at 24. It was passed by the Legislature on August 21, 1970, was signed by the Governor on September 18, 1970, and took effect November 23, 1970. (See California Legislature, Assembly Final History, 1970, Reg. Sess., p. 637.)

74. See Friends of Mammoth v. Mono County, supra note 15, c.3d at 261-262, 2 ELR at 20676. The Wisconsin act explicitly writes the Federal Guidelines into state law. Chap 274, Laws of 1971, § 1.11(2) (c).

75. Pub. Res. Code § 21065; see Friends of Mammoth v. Mono County, supra note 15. A separate California statute prohibits the State Lands Commission (which has jurisdiction over certain public lands and certain other lands subject to public trusts) from leasing any lands under its jurisdiction until it has prepared an environmental impact report. Pub. Res. Code § 6371.

76. § 69-6504(b) (3).

77. § 12-20-6(c).

78. T.12 § 1124(2) (C).

79. § 43.21C.030(2) (C).

80. Chap. 274, Laws of 1971, § 1.11(2) (c). A separate Wisconsin statute authorizes the Department of Natural Resources to require an applicant for a permit or statutory approval to submit an EIS if the area affected exceeds 40 acres or the estimated cost of the project exceeds $25,000. Chap. 273, Laws of 1971, § 23.11(5).

81. See discussion under notes 70-74 and accompanying text.

82. § 35-5303(2) (C).

83. § 35-5306.

84. Pub. Act No. 73-562, § 3. The same provision appears in the Executive Order adopted in 1972, supra note 5.

85. Chap. 1203, Sess. Laws — 1971, § 4(2).

86. See notes 68-69 and accompanying text.

87. Chap. 384, approved Mar. 15, 1973, §§ 2.1(b). Major state facility is defined in terms of costing one hundred thousand dollars or more to complete.

88. Id., § 1(b).

89. C.30, § 62.

90. Also see note 84. The Texas provision appears to be phrased in terms of suggesting, not mandating. Trzyna, supra note 2, at 29.

91. Executive Directive, supra note 5.

92. Executive Order, supra note 5, § 1(b).

93. §§ 704.870(1)(b); 704.890(1) (c).

94. Game and Fish Commission policy, supra note 5.

95. 7 § 7005(a).

96. Id., §§ 7002(c), 7005(a).

97. 42 USC § 4332(2) (C).

98. Supra note 12.

99. Pub. Res. Code §§ 21104, 21153.

100. Pub. Act No. 73-562, § 6(a).

101. § 35-5303(2) (c).

102. C. 30 § 62.

103. § 69-6504(b) (3).

104. Chap. 1203, Sess. Laws — 1971, § 4(2).

105. T. 12 § 1124(2) (C).

106. § 43.21 C030(2) (d).

107. Chap. 274, Laws of 1971, § 1.11(2) (d).

108. Pub. Res. Code § 21000, et seq.

109. Friends of Mammoth v. Mono County, supra note 15, 8 C.A.3d at 260-261, 2 ELR at 20676; Environmental Defense Fund v. Coastside County Water District, 27 C.A.3d 695, 701, 2 ELR 20593, 20594 (Calif. Ct. of App. 1972); Keith v. Volpe, 352 F. Supp. 1324, 1336-1337, 2 ELR 20425, 20430 (C.D. Cal. 1972).

110. Pub. Res. Code §§ 21100, 21151.

111. Supra, note 73.

112. State of California, Office of the Secretary for Resources, Proposed Guidelines for the Preparation and Evaluation of Environmental Impact Statements Under the California Environmental Quality Act of 1970 (June 21, 1971).

113. Attorney General of the State of California, Petition, In re Proposed Guidelines for the Preparation and Evaluation of Environmental Impact Statements Under the California Environmental Quality Act of 1970 (September 3, 1971).

114. Id., at 18.

115. Id., at 14-20.

116. See Notes 72-74 and accompanying text.

117. Friends of Mammoth v. Mono County, supra note 15, 8 C.3d at 253, 2 ELR at 20673.

118. Id., 8 C.3d at 252, 2 ELR at 20673.

119. Id., 8 C.3d at 252, 271, 2 ELR at 20673.

120. Id., 8 C.3d at 252-253, 2 ELR at 20673.

121. Id., 8 C.3d at 253, 2 ELR at 20673.

122. Id., 8 C.3d at 258-259, 2 ELR at 20675. The Sierra Club was represented by the Center for Law in the Public Interest.

123. Supra note 112.

124. Friends of Mammoth v. Mono County, supra note 15, 8 C.3d at 247, 2 ELR at 20673.

125. Id., 8 C.3d at 252, 2 ELR at 20673.

126. Id., 8 C.3d at 259, 2 ELR at 20675.

127. Id., 8 C.3d at 263, 2 ELR at 20676.

128. The Supreme Court denied Mono County's petition for rehearing, but did modify its opinion to emphasize that the act only applied when the project may have a significant effect on the environment. Id., 8 C.3d, at 271-273.

129. The imposition of which received considerably more publicity than their removal.

130. The Attorney General's phrase to describe one element of those particularly vocal about the decision.

131. Specifically Attorney General Evelle J. Younger, a Republican, and Assemblyman John Knox, a Democrat, author of the Environmental Quality Act, and Chairman of the Assembly Local Government Committee.

132. Pub. Res. Code § 21171.

133. Pub. Res. Code § 21169-21170. See San Francisco Planning and Urban Renewal Ass'n v. Central Permit Bureau, 30 C.A.2d 922, 931, (Calif. Ct. of App. 1972).

134. Pub. Res. Code § 21083, see §§ 21083.5-21087.

135. Pub. Res. Code § 21082.

136. An attack on earlier procedures used by one state agency, the Public Utilities Commission, was dismissed by the Supreme Court as premature given the newly enacted mandate to adopt guidelines. Desert Environment Conservation Ass'n v. PUC, 8C.3d 739 (Cal. S.C. 1973). However, the Court went out of its way to note that regulations not consistent with the statute would be subject to judicial challenge. Id., at 742-743.

The guidelines are presently under attack as not in compliance with the Environmental Quality Act in a proceeding brought under the original jurisdiction of the Supreme Court. Center for Law in the Public Interest, Inc., and League of Women Voters of California, Inc. v. Livermore, as Secretary of the Resources Agency, L.A. 30168, filed June 29, 1973.

137. Pub. Res. Code § 21167. The statutes vary from 30 to 180 days with some situations (i.e., an attack in the decision itself) apparently not covered.

138. Pub. Res. Code § 21080.

139. Pub. Res. Code § 21089.

140. Id. Also see note 162 and accompanying text. There are four other provisions which were inserted at the request of local government. The first permits the agency to require the applicant to submit "data and information." Pub. Res. Code § 21160. The second adopts the federal "lead agency" concept, so that if permits are needed from more than one agency, only one EIS need be prepared. Pub. Res. Code §§ 21067, 21165. The third provision states that when a state agency orders a local agency to carry out a project, any EIS prepared by the local agency shall be limited to consideration of those factors and alternatives which will not conflict with the state order. Pub. Res. Code § 21154. The fourth provision insures that existing California standards of judicial review are employed. Pub. Res. Code §§ 21168, 21168.5, and 21168.7.

141. Pub. Res. Code § 21065.

142. Calif. Legis., Chap. 1154, Stats. 1972, § 17.

143. Calif. Legis., Chap. 1433, Stats. 1970, § 21151.

144. Pub. Res. Code § 21151.

145. Environmental Defense Fund v. Coastside County Water District, supra note 109.

146. County of Inyo v. Yorty, 32C.A.3d 795, 3 ELR 20513 (Cal. Ct. of App. 1973).

147. Id., 32 C.A. 3d at 810, 3 ELR at 20517.

148. Id., 32 C.A.3d, at 814, 3 ELR at 20518.

149. Id.

150. Supra note 109, 352 F. Supp. 1324, 2 ELR 20425 (C.D. Cal. 1972).

151. Id., 352 F. Supp. at 1337, 2 ELR at 20430.

152. City of Roswell v. New Mexico Water Quality Control Commission, 3 ELR 20181 (N.M. Ct. of App. 1972).

153. See, e.g., Environmental Defense Fund v. Corps of Engineers, supra note 11, 470 F.2d at 297-300, 2 ELR at 20743-20744 (8th Cir. 1972); Environmental Defense Fund v. Froehlke, 473 F.2d 346, 352, 353, 3 ELR 20001, 20004 (8th Cir. 1972); Conservation Council v. Froehlke, 473 F.2d 664-665, 3 ELR 20132 (4th Cir. 1973).

154. C. 30 § 61.

155. Supra note 75.

156. Pub. Res. Code § 6371.

157. § 704.890(1)(c).

158. Supra note 153.

159. Friends of Mammoth v. Mono County, supra note 15, 8 C.3d at 263, note 8, 2 ELR at 20676, note 8.

160. Two of the laws have peculiarities as to effective dates. The Connecticut Act does not go into effect until February 1, 1975. Pub. Act No. 73-562, § 8. The North Carolina law ceases to be in effect September 1, 1973, absent affirmative legislative action. Chap. 1203, Sess. Laws — 1971, § 12.

161. Chap. 1203, Sess. Laws — 1971, § 4(3).

162. C30, § 62. Also see note 140 and accompanying text.

163. City of Roswell v. New Mexico Water Quality Control Commission, supra note 152, 3 ELR at 20183.

164. Id.

3 ELR 50090 | Environmental Law Reporter | copyright © 1973 | All rights reserved