OVER THE past three years the courts have had many opportunities to interpret NEPA. The Act has been involved in 149 separate litigations, some of which have produced several opinions. Yet chapters IV, V, and VI abundantly confirm that the bulk of these interpretations focuses on the one short action-forcing provision set out in § 102(2) (C). As important as that section is, its role is nevertheless an essentially subservient one. An archive of disregarded assessments that bring about no real improvement in federal decision making might satisfy § 102(2) (C), but would fail NEPA as a whole. Aware of this possibility, the courts have endorsed a wider judicial role in ensuring that final agency decision making actually reflects NEPA's substantive policy.

In addition to interpreting the information and disclosure requirements of § 102(2) (C), the courts have spelled out how that information must be "considered" by the agency in making its final decision. The use to which environmental information is put in decision making is fully reviewable, and the impact statement plays an important role as part of the reviewable record of consideration. Furthermore, several courts have held that courts may review agency decisions to determine if they are in accord with NEPA's substantive policy.

The role in federal decision making of action-forcing requirements other than § 102(2) (C) has been discussed by the courts, which in a few instances have partially rested injunctive relief on them. The key provisions are §§ 102(2) (A), (B), and (D), and occasionally (G) and (E). Subsection 102(2) (D) — the "alternatives" section — is much like § 102(2) (C) in function, while §§ 102(2) (A) and (B) impose new and totally different requirements on the agencies. These require a qualitative change in decision-making processes which the courts may find difficult to enforce.

Finally, we consider NEPA when the agencies are not resisting its application but are actually attempting to rely upon it for authority to take an environmentally protective action. In theory NEPA is a more potent force in the hands of government than in the hands of parties suing the government. Its potential in this respect has not yet begun to be realized, but cases like Zabel v. Tabb,¹ the first case in which a federal agency sought to assert its NEPA mandate, in the long run may be more important for better federal decision making than the suits against the government.

CALVERT CLIFFS', BALANCING, AND THE REVIEWABLE OBLIGATION TO CONSIDER IMPACTS

The District of Columbia Circuit opinion in Calvert Cliffs'² held that § 102 duties were subject to a strict standard of compliance and that agencies were further obligated to "consider" in good faith the environmental information which they developed. In the court's opinion, "consideration" required a trading off or balancing of environmental factors against economic and technical ones. Other decisions endorse this requirement and go further than Calvert Cliffs' in defining the use of the § 102 process to create a record for reviewing agency consideration of environmental values. The "balancing analysis," however, has inherent drawbacks, which are discussed in the final portion of this subsection.

Calvert Cliffs'

Before Judge Skelly Wright's opinion for the District of Columbia Circuit in Calvert Cliffs' Coordinating Committee v. Atomic Energy Comm'n,³ courts applying NEPA generally limited themselves to narrow constructions of NEPA's action-forcing requirements.In Calvert Cliffs' NEPA received its first comprehensive judicial analysis by a circuit court. Despite certain important modifications and extensions, the Calvert Cliffs' interpretation has been accepted as the definitive judicial gloss on NEPA. It has been more frequently cited, analyzed,⁴ and relied upon than any other NEPA decision, as the preceding chapters have shown.

The specifics of the court's holding are not of principal concern here. They relate to the way in which the Atomic Energy Commission's procedures implementing NEPA failed to meet the Act's requirements.⁵ The deficiencies identified in the procedures flowed from the court's finding that the § 102 duties were subject to a strict standard of compliance that could only be relaxed if they conflicted [3 ELR 50100] with other agency duties imposed by statute. The opinion caused a furor within the commission and in Congress because of its impact on the commission's ongoing program of nuclear facility licensing.⁶ The furor subsided after passage of an amendment to the Atomic Energy Act which allows somewhat speeded-up environmental clearance for already-constructed facilities.⁷

In his opinion, Judge Wright gave full attention to NEPA's substantive requirements. He pointed out that § 101(a) sets forth the Act's basis substantive policy: the federal government must "use all practicable means and measures" to protect environmental values. He also cited language from § 101(b) which indicated that the substantive policy was a flexible one which "may not require particular substantive results in particular problematic instances." Finally, he contrasted the flexible policy requirements with the inflexible, strict standard of compliance which Congress established for the Act's action-forcing procedures.

With these foundations, the court then relied upon both NEPA's procedural and its substantive sections to elaborate how the fruits of the Act's lengthy § 102 procedure must be used to reach a decision that accords with NEPA's substantive policy. Judge Wright stated, "perhaps the greatest importance of NEPA is to require … agencies to consider environmental issues just as they consider other matters within their mandates."⁸ He further remarked:

Only once — in § 102(2) (B) — does the Act state, in terms, that federal agencies must give full "consideration" to environmental impact as part of their decision making processes. However, a requirement of consideration is clearly implicit in the substantive mandate of § 101, in the requirement of § 102(1) that all laws and regulations be "interpreted and administered" in accord with that mandate, and in the other specific procedural measures compelled by § 102(2). The only circuit to interpret NEPA to date has said that "[t]his Act essentially states that every Federal agency shall consider ecological factors when dealing with activities which may have an impact on man's environment." Zabel v. Tabb, 5th Cir., 430 F.2d 199, 211 (1970). Thus a purely mechanical compliance with the particular measures required in § 102(2) (C) & (D) will not satisfy the Act if they do not amount to full good faith consideration of the environment…. The requirements of § 102(2) must not be read so narrowly as to erase the general import of §§ 101, 102(1) and 102(2) (A) & (B).⁹

The concept of "consideration" is difficult to define; its use only once in NEPA does not help matters. Interpretations may range from the view that the agency cannot act without painstaking attempts to avoid the impacts in question, to the view that the agency decision maker must simply be aware of the impact which his decision may have. The court in Calvert Cliffs' defined the concept in terms of a balancing or trading off of environmental factors against economic and technical ones. Relying primarily upon §§ 102(2) (A) and (B), the court found that "NEPA mandates a rather finely tuned and 'systematic' balancing analysis."¹⁰ As the court more fully explained:

NEPA mandates a case-by-case balancing judgment on the part of federal agencies…. 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…. In some cases, the benefits will be great enough to justify a certain quantum of environmental costs; in other cases, they will not be so great and the proposed action may have to be abandoned or significantly altered…. The point of the individualized balancing analysis is to ensure … that the optimally beneficial action is finally taken.¹¹

The role of the courts in reviewing agency consideration of environmental factors is plainly stated in Calvert Cliffs' in terms of review of compliance with all of NEPA's § 102 provisions, especially §§ 102(2) (C) and (D). "The requirement of consideration 'to the fullest extent possible' sets a high standard for the agencies, a standard which must be rigorously enforced by reviewing courts."¹² Again, "if the decision was reached procedurally without individualized consideration and balancing of environmental factors — conducted fully and in good faith — it is the responsibility of the courts to reverse."¹³ Hence the details of the manner in which an agency conducted is final decision-making process will be subject to close judicial scrutiny under NEPA. The courts may ask to be satisfied that actual consideration of the factors specified in NEPA's substantive policy has taken place.

Further discussing the role of the courts, Judge Wright suggested that even if the procedural duties are properly carried out, the substantive provisions of § 101 may enable the courts to review the actual decision made on its merits. Such review would be limited, however, in the Calvert Cliffs' view, to whether the decision was arbitrary or clearly gave insufficient weight to environmental values. No further indication was given of how the substantive provisions of § 101 might limit agency decision making within these standards of review as a matter of law.

Without purporting to define the content of the reviewable record, the court indicated that the formal § 102(2) (C) statement and the description of alternatives required by § 102(2) (D) would be the focal items on review. Although the court said that the requirements for an impact statement and a description of alternatives provide "evidence that the mandated decision making process has in fact taken place,"¹⁴ it apparently did not intend to restrict review merely to the record compiled under § 102. Other evidence showing actual failure to consider environmental factors, or consideration that in fact showed environmental factors to outweigh competing factors, presumably would still be admissible under the Calvert Cliffs' test, as Daly v. Volpe illustrates.¹⁵ Also, there is no convincing indication that the court thought that the impact statement should include justifications for the proposed action, so that all the factors would appear balanced side by side in a single document (see further discussion on pages 254 ff.).

The Record on Review

Other court decisions approve the Calvert Cliffs' view that agencies must actually consider environmental factors and that such consideration is judicially reviewable, although they have not added significantly to Judge Wright's interpretation of the balancing analysis. They further confirmthat NEPA contributes to the reviewable administrative record of decision making. The attractiveness of the § 102 process has in fact created a problem, because some courts would like the impact statement to be able to serve as the entire record of final decision making, a role the statement would be hard pressed to play.

In Ely v. Velde¹⁶ the Fourth Circuit explained at some length that NEPA required the agency to develop a record which showed that it had complied with relevant procedures and had actually considered the factors specified. Although ultimate decision making was [3 ELR 50101] entrusted to the agency, it could not keep its thought process "under wraps." The impact statement was considered an important part of the reviewable record.

With regard to NEPA, the statutory requirement of a "detailed statement … on the environmental impact of the proposed action" places a heavy burden on the LEAA [Law Enforcement Assistance Administration]. To enable a court to ascertain whether there has been a genuine, not a perfunctory compliance with NEPA, the LEAA will be required to explicate fully its course of inquiry, its analysis, and its reasoning.¹⁷

The Second Circuit first touched upon the issue in Greene County Planning Board v. Federal Power Comm'n.¹⁸ However, the court simply assumed that the impact statement constituted part of the reviewable record of agency consideration. In discussing §§ 102(2) (A), (D), and (E), the court remarked that these sections meant that NEPA's scope extended "far beyond" the requirements that the agency must "consider environmental factors and include those factors in the record subject to review by the courts."¹⁹

In subsequent opinions in Hanly v. Kleindienst,²⁰ the Second Circuit in "Hanly I" seized upon review of an agency decision not to prepare an impact statement and remarked that "in the context of an act designed to require federal agencies to affirmatively develop a reviewable environmental record," a perfunctory explanation of the agency's refusal to prepare a statement would not suffice.²¹ The agency still had to show through a reviewable record (defined in some detail by Hanly II)²² that it had properly considered environmental factors, although an impact statement might not have to be prepared.

The position of the Eighth Circuit is the same, judging by its conclusions on review of the Gillham Dam case.²³ In deciding that an "arbitrary and capricious" standardapplied to review of substantive questions in NEPA cases, the court referred to "the complete record, including the environmental impact statement and the transcript of the proceeding below."²⁴ The recent opinion of the Eighth Circuit in a similar case, Environmental Defense Fund v. Froehlke,²⁵ confirms this interpretation.

Finally, the formal impact study supplies a convenient record for the courts to use in reviewing agency decisions on the merits to determine if they are in accord with the substantive policies of NEPA.²⁶

Similarly, the three-judge panel in City of New York v. United States²⁷ reviewed an agency impact statement and other materials, specifically finding that compliance did not fall short of "the level of refined and systematic consideration required by NEPA, cf. Calvert Cliffs'."²⁸ A dictum treated the issue of the standard to be applied in reviewing decision making subject to NEPA. Because the APA normally subjects Interstate Commerce Commission decisions regarding railway abandonment such as was at issue in this case to the substantial evidence test, the question arose whether, as part of the record, the commission's environmental determinations would be subject to the same standard. Judge Friendly thought not, for the reason that many federal actions subject to NEPA involve informal decision making not subject to the higher APA standard. Nevertheless, he avoided actually deciding the issue, because he found that substantial evidence existed supporting the commission's decision.²⁹ The dissenter thought the dictum was inadvisable, since it was directed to an issue that was neither briefed nor argued.

The cases are split on the major issue whether the impact statement should be able to serve as the full record of the final agency decision, or whether it is only one component of that record.If it serves as the former, then it must include the data and reasoning which support the agency's action, along with its assessment of possible environmental impacts. The issue has come up in a number of cases regarding agency cost-benefit analyses.

The decision in Calvert Cliffs' has been read to imply that the impact statement should include at least some discussion of how costs and benefits were balanced.³⁰ But as discussed above, the court was using "cost benefit" language loosely and did not seem to mean that cost-benefit analyses or techniques should be transferred into the § 102 process. Nor should the decision in Natural Resources Defense Council v. Morton³¹ be interpreted to enlarge the role of the impact statement in showing how the balancing was done, simply because the court remarked that the impact statement provides "a basis for" evaluation of benefits in light of environmental risks and for comparison of any net environmental risk with the risks entailed by alternatives.³² Both Calvert Cliffs' and Morton are consistent with the view that the impact statement should focus on providing information for the environmental risk — and conceivably the environmental benefit — portion of the balancing analysis.

Other cases, however, are more explicit and are in direct conflict. The district court in the Gillham Dam case indicated that claims of economic benefit, as well as a critical analysis of these claims by opponents, should be included in order to make the impact statement complete.³³ A similar stance was taken on remand by the district court in Lathan v. Volpe,³⁴ which found that cost-benefit analysis was an appropriate part of statements on highway projects.³⁵ The contrary view has been stated by the court in Environmental Defense Fund v. Armstrong:³⁶ "We find no such requirement in the NEPA that any such cost-benefit analysis be conducted or included in the EIS."³⁷

The merits of the point of view expressed in Armstrong must be weighed against the merits of the view of the Gillham Dam and Lathan district courts. The two main advantages of compiling one "decision document" are that such a document creates a single written reviewable project justification, and that formal cost-benefit analyses, heretofore thought to be beyond the courts' reach, may possibly be examined as part of the impact statement, Against these considerations must be pitted the danger that the inclusion of the analyses will allow project justifications and economic and technical considerations to swallow up environmental impact analysis. This latter result clearly was not wished by Congress. In agencies whose primary expertise will remain oriented to the engineering and economic aspects of development projects for some time to come, such a change in emphasis invites the use of the § 102 process for developing the reasons why projects should go forward. NEPA creates a special preliminary procedure, the fruit of which — an environmental impact statement — "shall accompany the proposal through existing agency review processes."³⁸ This preliminary procedure should remain a one-sided inquiry, whatever the use made of cost-benefit analyses developed for other purposes.³⁹

The Council on Environmental Quality, aware of the risk that [3 ELR 50102] self-serving project justifications could destroy the focus of the impact statement, nevertheless concludes that § 102(2) (C) should include some identification of the nonenvironmental interests favoring the project. A "succinct recital" of these interests would alert the President, Congress, and the public to their nature.⁴⁰ But the reviewable record presumably would still include the full project justification in whatever form it appears. The difference between an adequate statement and an adequate record for review would continue to be significant under the CEQ view; the CEQ solution apparently is not intended to merge the two.⁴¹

A Critique of "Balancing"

The judicially enforceable requirement that agencies actually consider environmental impacts when final decisions are made is an important bridge between NEPA's informational requirements and its goal of changing the outcome of agency decisions. Yet on closer examination the Calvert Cliffs' "balancing analysis" leaves doubt that it is the kind of directive that will cause agencies to comply with NEPA to the full extent suggested by the Act's substantive requirements and its legislative history.

The court's endorsement of the balancing approach meant at the very least that the agencies have to comply in earnest with Congress' intent to affect final agency decision making. What the endorsement may mean beyond that is more doubtful. The court avoided detailed consideration of how the balancing should be carried out or of how the kinds of techniques described in §§ 102(2) (A) and (B) might be eveloped and used. The agencies' obligations, if any, to be specific about how incommensurable costs and benefits were traded off, or how weights were assigned to both quantifiable and nonquantifiable factors, were not discussed. Nor did the court indicate that NEPA's substantive policy required anything more than equal treatment among competing national priorities and goals.

Hence the court apparently intended only to convey the common sense notion of "trading off' when competing interests must be equitably balanced. Its reliance on phrases like "finely tuned," "systematic," and "optimally beneficial" is misleading when applied to such a rough-and-ready process. The analogy to precisely calibrated scales suggests a degree of certainty which the agencies cannot possibly attain without more guidance as to the relative importance of various factors,⁴² and without more information of a kind and extent which, as NEPA's legislative history acknowledges, does not yet exist.⁴³ Furthermore, basic agency missions set priorities and create conflicts which Calvert Cliffs' does not help resolve. To point out that Congress added an additional, environmental mandate to existing agency missions does nothing to resolve the head-on clashes which inconsistent mandates create.⁴⁴

In these circumstances, an agency faced with making a decision that is consistent with Calvert Cliffs' will most likely resolve uncertainties in favor of the priorities set out in its original grant of authority, at least until Congress or the courts give it more specific directions, or until the longer-run NEPA goals begin to take effect.⁴⁵ NEPA may have the effect in the meantime of causing a better record supporting the basic decision to be made and new information about environmental impacts to be assembled, but it may not actually achieve its ultimate purpose of changing the congressionally recognized tendency of federal decision making toward environmental neglect and destruction.

Certainly in light of its reliance on §§ 102(A) and (B), the court could not have intended to sharpen the balancing process by approving the wholesale importation into the NEPA process of formal cost-benefit analysis techniques, such as those for evaluating water resources projects.⁴⁶ Moreover, the possibility of agency manipulation of decisional factors, and of their weights, is as great for these more "precise," economically oriented techniques as it is for the as-yet unrefined techniques called for by NEPA. (See discussion on pages 265 ff.) To its credit, the Atomic Energy Commission has made an energetic attempt to develop better decisional techniques in the wake of Calvert Cliffs', but even a cursory scan of its suggested catalogue of factors shows both the difficulty of putting environmental incommensurables into the decisional balance and the consequent possibilities for manipulation which exist.⁴⁷

The balancing process thus appears to deliver only half of NEPA's loaf. Required to to no more than show that they have engaged in a defensible tradeoff, the agencies can still make environmentally destructive decisions, although they now may do so with a fuller awareness of the destruction which could be caused. As we next discuss, the courts appear uneasy about how NEPA's ultimate purposes may still be frustrated. They may be ready to look further into NEPA's substantive requirement for reviewable standards which further NEPA's legislative intent by more carefully limiting the kinds of decisions which agencies may make.

SUBSTANTIVE DUTIES

The cases confirm that NEPA is more than a full-disclosure law; it was intended to bring about substantive changes in agency decision making. Following Calvert Cliffs' lead, the courts have assumed a role in ensuring that such changes occur through judicial review of the agencies' "consideration" of environmental factors. These same cases suggest, however, that the requirement of mere consideration may not define the limit of NEPA's judicially enforceable substantive duties.

The courts may find more "law to apply"⁴⁸ as they read the Act closely in light of its legislative history. The substantive provisions of NEPA, especially §§ 101(a) and (b), present a challenge in this regard because of their broad language. Yet that language is not mere preamble, nor was Congress satisfied to limit its statement of policy to the vague requirement that agencies must use all practicable means consistent with other essential national policies to protect the environment. In § 101(b) Congress specified six detailed goals for the federal government to attain in order to carry out the Act's general policy.⁴⁹ When read in conjunction with the legislative history and with the Act's other provisions, particularly the requirement of § 102(1) that all other federal policies and laws must be interpreted and administered "to the fullest extent possible" in conformity with NEPA's policy, the six provisions of § 101(b) suggest that Congress said more about the freedom of agencies to consider and trade off environmental values than the courts have yet fully recognized.

The court in Calvert Cliffs' limited its comments on judicial enforcement [3 ELR 50103] of NEPA's substantive requirements to observing:

The reviewing courts probably cannot reverse a substantive decision on its merits … [under § 101] unless it be shown that the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values.⁵⁰

Nevertheless, this dictum indicates that in the opinion of the Calvert Cliffs' court, § 101 was not drawn in such broad terms that it contained no "law to apply." Final agency decision making would not, in this court's view, be committed entirely to agency discretion.

Without citing Calvert Cliffs', the district court in its first opinion in Akers v. Resor⁵¹ found that the Corps' decision to proceed with a stream channelization project was reviewable on its merits. Citing the Supreme Court in Citizens to Preserve Overton Park v. Volpe,⁵² the court said that it was "clear" that the action was reviewable because review had not been prohibited by statute and had not been committed by statute to the Corps' discretion. The decision to proceed with the project could be enjoined if it was arbitrary, not otherwise in accordance with law, or failed to meet statutory procedural requirements. Relying upon § 101(b) and § 102(1), the court found that the plan for mitigating the adverse impact of part of the project, as submitted to Congress in 1963, was insufficient. The court remarked that the 1963 mitigation pan might satisfy the requirements of the Fish and Wildlife Coordination Act,⁵³ but it did not satisfy NEPA's requirement that that Act be administered in accordance with NEPA [§ 102(1)], nor did it satisfy NEPA's requirements [§ 101(b)] "that all Federal plans and programs be improved to attain environmental objectiveness."⁵⁴ Thus apparently the Corps had to request congressional appropriations that would enable it to carry out a modified project which better accomplished NEPA's substantive objectives.

The recent opinion of the Eighth Circuit affirming the district court's decision in the Gillham Dam case fully articulated the view that NEPA imposes judicially reviewable substantive requirements.⁵⁵ Although the circuit court affirmed the district court opinion allowing the project to continue, it held that the merits of the Corps' decision to proceed were reviewable under § 101 and § 102(1) on the arbitrary and capricious standard.

The language of NEPA, as well as its legislative history, make it clear that the Act is more than an environmental full-disclosure law. NEPA was intended to effect substantive changes in decision making. Section 101(b) of the Act states that agencies have an obligation "to use all practical means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs and resources" to preserve and enhance the environment. To this end, § 101 sets out specific environmental goals to serve as a set of policies to guide agency action affecting the environment….⁵⁶

… Given an agency obligation to carry out the substantive requirements of the Act, we believe that courts have an obligation to review substantive agency decisions on the merits. Whether we look to common law or the Administrative Procedure Act, absent "legislative guidance as to reviewability, an administrative determination affecting legal rights is reviewable unless some special reason appears for not reviewing…." Here, important legal rights are affected. NEPA is silent as to judicial review, and no special reasons appear for not reviewing the decision of the agency. To the contrary, the prospect of substantive review should improve the quality of agency decisions and should make it more likely that the broad purposes of NEPA will be realized [citation and footnote omitted].⁵⁷

… The standard of review to be applied here and in other similar cases is set forth in Citizens to Preserve Overton Park v. Volpe…. The reviewing court must first determine whether the agency acted within the scope of its authority, and next whether the decision reached was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. In making the latter determination, the court must decide if the agency failed to consider all relevant factors in reaching its decision, or if the decision itself represented a clear error in judgment. Where NEPA is involved, the reviewing court must first determine if the agency reached its decision after a full, good faith consideration and balancing of environmental factors. The court must then determine, according to the standards set forth in §§ 101(b) and 102(1) of the Act, whether "the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental values … [citations to Overton Park and Calvert Cliffs' omitted].⁵⁸

The Eighth Circuit interpreted NEPA decisions in three other circuits as supporting its view,⁵⁹ while only one circuit was thought be be at variance.⁶⁰ It also stated that its conclusion was supported by the "analogous" decision of the Supreme Court in Overton Park and by several scattered district court decisions.⁶¹

Turning to the Corps' decision to proceed with thedam, the circuit court remarked that ordinarily the matter would be remanded to the trial court for review, but that in this case remand would not be necessary because the complete record, including the impact statement and the transcript of the proceeding, was before the court. In a very brief discussion the court rejected plaintiffs' contention that the decision to complete the dam was arbitrary and capricious. The court apparently focused upon § 101(b) (4), which requires the agencies to "maintain, wherever possible, an environment which supports diversity, and variety of individual choice," and balanced the sacrifice of diversity against the benefits of flood control. In rejecting plaintiffs' argument, the court said:

We have reached this conclusion after a serious consideration of the arguments in favor of and against completion of the project. In large part this has necessitated a balancing, on the one hand, of the benefits to be derived from flood control, and, on the other, of the importance of a diversified environment.⁶²

In holding broadly that NEPA creates substantive duties reviewable under the arbitrary and capricious standard, and that in this instance the Corps' decision was within the bounds of its discretion, the court failed to construe the applicable NEPA section so that the constraints on the balancing process which it imposed as a matter of law were better articulated. In Overton Park, to which the Eighth Circuit analogizes its Gillham Dam opinion, the Supreme Court construed the Parklands Statutes⁶³ in a manner which rather precisely defined the record which the government would have to show in the district court before it could proceed with construction of the highway link at issue in that case. The secretary of transportation had to balance countervailing factors, but the Court's interpretation of the heavy favor which he had to show by law to parklands preservation radically changed the department's earlier view of the balancing to be performed. In the Gillham Dam case, the particular circumstances which justified a reduction in the diversity of the natural environment remained uncertain. There is "law to apply," the court has said, but the court has not articulated its requirements.

By refusing to remand, the circuit court avoided having to spell out how review of the Corps decision should be conducted. This is unfortunate in light of the district court's observation that "in the instant case it is clear that the damming of the Cossatot will reduce 'diversity and variety of individual choice.'"⁶⁴ The circuit court stated that a reviewing court must decide, among other things, whether the agency "clearly gave insufficient weight to environmental values." Yet it does not suggest what the weight accorded the district court's finding must be as a matter of law.

In the Gillham Dam case, the Eighth Circuit sustained the decision [3 ELR 50104] of the district court and did not remand. Two weeks later in its opinion reversing and remanding a case involving a stream channelization project along the Cache River,⁶⁵ the Eighth Circuit actually did remand with instructions to review the substantive agency decision on its merits to determine if it accorded with NEPA. The court also found that the impact statement which theCorps had prepared was inadequate and that congressional appropriations for the project did not mean that Congress implicitly exempted the project from the requirements of NEPA.

The circuit court rejected plaintiffs' assertions that the Corps' cost-benefit determination was reviewable under 33 U.S.C. § 701a of the Flood Control Act of 1934, the Corps' governing "cost-benefit statute." But in rejecting plaintiffs' claim, the court made the following observation of utmost significance to subsequent judicial review of public works projects:

We do not think that the statement of policy in § 701a can be used as a vehicle for continuing evaluation of the project by the courts.

We point out, however, that the relief requested by the plaintiffs under § 701a is partially available under NEPA. To fully comply with NEPA, the Corps must reappraise the costs and benefits of the project in light of the policies of environmental protection found in NEPA. As we have stated, a decision to proceed with channelization is reviewable in the District Court to determine whether the actual balance of costs and benefits struck by the agency according to the standards of §§ 101 and 102 of NEPA was arbitrary or clearly gave insufficient weight to environmental factors.⁶⁶

In a brief opinion the Fourth Circuit recently remanded Conservation Council of North Carolina v. Froehlke⁶⁷ for review under NEPA's substantive provisions, instructing the district court to enjoin any environmentally detrimental activity pending completion of that review. Thus it would appear that at least three circuits — the Fourth, the Eighth, and the District of Columbia — favor review under §§ 101 and 102(1).

In Sierra Club v. Froehlke (Trinity River-Wallisville Dam)⁶⁸ a federal district court took the important step of applying NEPA point by point to the Corps of Engineers' decision-making process and to the method which the Corps adopted for determining the cost-benefit ratio for the federal water resources projects at issue. Casting aside views that the cost-benefit ratio was to be reviewed solely by Congress and that the courts lacked jurisdiction to examine it, Judge Bue found that the determination "intertwined" environmental and nonenvironmental factors so that NEPA applied. "When the claimed ratio is composed, in part, of environmental amenities which Congress has required under current law to be given careful attention and consideration, then the courts have an obligation to act, where necessary."⁶⁹

The court did not rest its decision specifically upon deficiencies in the cost-benefit ratio computation. A prima facie case for noncompliance with NEPA had been established on narrower grounds involving inadequacies in the Wallisville Dam impact statement and procedures regarding its circulation for comment. However, the court did say:

Because the Wallisville impact statement and the record which relates to both projects [Trinity River Project; Wallisville Dam] indicate that the [benefit-cost] balance struck was "arbitrary" and "clearly gave insufficient weight to environmental values," under Calvert Cliffs' … substantial in-depth revision by the Corps in this area will be required prior to the acceptance of either the Wallisville or the Trinity Project impact statement.⁷⁰

The court was quite specific about the inadequacies of the original cost-benefit determination. Our brief summary cannot do justice to the court's rather lengthy treatment of the issues. In the court's view, selected environmental benefits of the project had been identified by the Corps, quantified in dollars, and added to the benefit side of the calculation, while similar environmental costs or losses if construction were completed had not been quantified or included at all. Some factors quantified as "benefits" seemed to the court to be open to considerable doubt, particularly recreational benefits, which it analyzed in detail. The estimated productive life span of the project, the applicable discount rate, the dimensions of the geographic area over which specified benefits were to be measured, all received skeptical analysis from the court.

Having charged the Corps to do a much better job, the court went on to interpret NEPA as in part specifying the steps which the Corps had to take toward this goal. After intimating that the CEQ perhaps had authority under NEPA to develop a new cost-benefit methodology,⁷¹ and chastising all of the federal government for delaying three years the development of adequate techniques for taking account of difficult-to-quantify environmental factors, the court specified methodological steps to be taken and concluded by requiring the Corps to bring its

… Procedures to the attention of Congress, the appropriate federal agencies, and the Council on Environmental Quality in order that appropriate policy decisions may be made to assist the Corps and the Court in assessing the completeness of environmental impact statements. These will include the determination of proper methods for quantifying and evaluating environmental amenities.⁷²

The courts stand on the threshold of an important new chapter in NEPA's judicial interpretation. Perhaps they will be content with a general review of compliance with § 101; its broad language may discourage extensive detailed interpretation. On the other hand, Calvert Cliffs' vague requirement that agencies "consider" and balance environmental factors may not prescribe a decision-making process that can obtain the rather explicit results desired by Congress when it enacted NEPA. If the courts cannot effectively review agency compliance with NEPA's basic purposes, they may become impatient with repeated reviews of procedural compliance and cursory substantive reviews, and begin to interpret § 101 and § 102(1) in ways which more precisely define the allowable scope of agency discretion.

In spite of the broad language of § 101, it is not too difficult to see where there may be "law to apply." The problem of preserving diversity, for one, was discussed in NEPA's legislative history, and it received close attention in the Gillham district court. For another, § 101 strongly suggests a nondegradation policy, which, when interpreted in light of the plain wording of the statute and its legislative history, may restrict agency decision making to the preservation and enhancement of environmental quality, especially where pollution is the degradation threatened. Of course that policy would not require that no tree be cut or that no river be dammed. But it might require that forest management practices that allow slow degradation be discarded, or that an overall river "improvement" project be modified or abandoned. Further, the specific requirements of § 101 may be interpreted as altering the way in which developmental benefits are to be weighed. This seems to be the thrust of the Corps cases in the Fourth and Eighth Circuits and of Sierra Club v. Froehlke (Trinity River-Wallisville Dam). The requirements of NEPA's § 101(b)(3), which calls for the attainment of "the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences," together with the requirements of §§ 101(b)(5) and (6), may become a new "cost-benefit statute" for agency decisions on all manner of federal projects. In this way the courts may provide the specificity which Calvert Cliffs' failed to attain.

THE OTHER ACTION-FORCING PROVISIONS

Section 102(2) includes seven other action-forcing provisions besides § 102(2)(C). Sometimes these sections are construed as ancillary to § 102(2)(C), but already the courts have made clear that they have their own distinct, additional roles to play. This is [3 ELR 50105] especially true of §§ 102(2)(A) and (B), which specify that agency planning and decision-making processes, and the methods and procedures used in them, must be systematic and interdisciplinary and must take unquantified amenities into account. Sections 102(2)(D) and (G) emphasize the fact-finding characteristics of § 102(2)(C), rather than planning and decision making, but they, too, have purposes separate from § 102(2)(C).

These sections have great significance for agency procedures and methodologies that are not easily challenged in a lawsuit. The state of the art in the "design arts" is still very unclearly defined, even among the key professionals involved, such as architects and planners. Hence the agencies' own willing use of these sections offers the most promise over the long run that the intent behind them will be realized. We have included this brief discussion of judicial interpretations of the sections to show that the courts will probably play the maximum role available to them.

The courts have confirmed that the "major federal action" requirement in § 102(2)(C) applies only to the preparation of impact statements. The other seven action-forcing provisions are exempt. This point of view is endorsed in Hanly v. Kleindienst,⁷³ where the court further reasoned that if § 102(2)(D) were limited to major federal actions, it would merely duplicate § 102(2)(C)(iii). Similar logic is implicit in Citizens for Reid State Park v. Laird,⁷⁴ where although the action was not large enough for an impact statement, the court specifically found that §§ 102(2)(A), (B), and (D) were satisfied. A strong dictum to the same effect appears in City of New York v. United States.⁷⁵

Sections 102(2)(A) and (B) have been construed in three circuit court decisions. In Calvert Cliffs' the court relied upon them to buttress its finding that NEPA required consideration of environmental values through the balancing process (see discussion above). Judge Wright said that §§ 102(2)(A) and (B) clarified the types of environmental consideration compelled by NEPA, pointing out that "appropriate" consideration does not give agencies discretion to undervalue environmental factors in decision making. NEPA requires consideration cappropriate" to the problem of protecting the environment, not "appropriate" to the whims of federal agencies. The court quoted Senator Jackson's floor remarks on § 102(2)(B): "Subsection 102(2)(B) requires the development of procedures designed to insure that all relevant environmental values and amenities are considered in the calculus of project development and decision making."⁷⁶ Finally, the court suggested that compliance with §§ 102(2)(A) and (B) must precede compliance with § 102(2) (C).⁷⁷

The Second Circuit's second decision in Hanly v. Kleindienst (Hanly II)⁷⁸ also stated that § 102(2)(B) applies before the threshold determination whether to prepare a statement is made under § 102(2)(C). The court found that the agency had satisfied § 102(2) (A) by employing architects familiar with the design requirements of the project area and by attempting to harmonize the facility with existing structures. The court found that § 102(2)(B) had not been satisfied, however, because that section required the agency to give adequate public notice of the proposed action and an opportunity to present facts relevant to the § 102(2)(C) threshold determination, neither of which the agency had done. While the court noted that a public hearing did not have to be held, it did suggest that a formal hearing would be advisable in many instances. By using the § 102(2) (B) requirements as a vehicle for deciding whether an impact statement had to be prepared, the court did not mean to imply that that section was merely ancillary to § 102(2)(C). The court specifically stated that the agency had to comply with § 102(2)(B) in any event.

The earlier Second Circuit decision in Scenic Hudson II⁷⁹ briefly considered §§ 102(2)(A) and (B), but not with the same sympathetic reception generally accorded them. In Scenic Hudson II the court held that the interdisciplinary requirement of § 102(2)(A) was satisfied by the FPC's public hearings which had been conducted after the previous remand. During these hearings testimony was taken from a variety of disciplines, but no impact statement was prepared. As Justice Douglas stated in his dissent from the denial of certiorari, the onus for implementing the interdisciplinary approach fell upon the intervenors and private parties opposing the project.⁸⁰ But the court was faced with a case which it had remanded five years previously for consideration of environmental values under the Federal Power Act § 10(a), a precursor of NEPA. Under such circumstances, the majority may have intended to ratify the results of the hearings but not necessarily the procedures utilized. Future projects might possibly be held to a stricter standard under § 102(2)(A). Indeed, reliance on intervenors or parties for compliance with NEPA seems now to be precluded by the Second Circuit's decision in Greene County⁸¹ (see discussion pages 186 ff.).

In addition to the three circuit court decisions, several district court opinions have considered the requirements of §§ 102(2)(A) and (B). In the Gillham Dam case,⁸² the court rejected the argument that § 102(2)(A) applied to new projects only. Despite the fact that Gillham Dam was authorized in 1958, and that it was 63 percent completed, the court thought that it was not too late to utilize an interdisciplinary approach when preparing the impact statement.⁸³ Further, the court applied § 102(2)(B) in requiring the Corps to include additional factors in the impact statement on the "negative" or "loss" side. A statement of water quality loss resulting from destruction of the free-flowing stream must be included, the court stated, at least where the Corps claimed benefits of enhanced water quality from construction of the dam.⁸⁴ Similarly, criticism of the Corps' economic claims by those opposing the project also belonged in the impact statement.

The court in Akers v. Resor⁸⁵ focused on the benefit side of the cost-benefit analysis carried out in that case. Because increased crop production was included in Akers as a benefit of flood protection, the Department of Agriculture, which often pays farmers not to cultivate existing lands, should have been consulted.⁸⁶ Hence an "interdisciplinary approach" under § 102(2)(A) must include comments from agencies having jurisdiction over areas affected by a project. The Akers court also held that consideration of unquantified values must be based upon "reasonable" assumptions.The Corps made an unreasonable assumption when it concluded that the value of lost opportunities for hiking and bird watching could be ignored because most of the land affected was privately owned.

The court in the Tennessee-Tombigbee case⁸⁷ stated that §§ 102 (A) and (B) were designed to ensure that the full cost — social, economic, and environmental — of agency action will be known. Quoting legislative history, the court reasoned that §§ 102(2)(A) and (B) must be applied in early stages of planning. The court held that § 102(2)(B) does not necessitate the use of particular techniques, such as computers, but is satisfied if the methodology used "effectively measures life's amenities in terms of the present state of the art." Here, a six-man scientific team conducting a rigorous examination of the project satisfied §§ 102(2)(A) and (B). The team was led by a civil engineer with a master's degree in water resource management and included two sanitary engineers, a civil engineer who was also a biologist, and two additional biologists. The team gathered data from the Corps and outside sources, consulted sixty persons or agencies, circulated a draft impact statement to twenty state and federal agencies, and analyzed the comments received. However, the Corps did not conduct field studies and relied solely on available scientific data and literature. Yet this was sufficient, the court held, [3 ELR 50106] in the absence of any showing by plaintiff that such data did not provide an adequate basis for assessment. Similarly, lacking any evidence of bias, the court found that the fact that all members of the team were from the Corps was insignificant. The court could not require more, considering the difficulty of enforcing a methodological approach to a project which began 16 years ago and which was substantially completed at the time of suit.

The decision in Environmental Defense Fund v. Hardin⁸⁸ interpreted §§ 102(2)(A) and (G) broadly, although the court did not have to solve the difficult problem of enforcing its interpretation. In this case the court held that the research conducted by the Department of Agriculture on the use of the pesticide Mirex to control fire ants satisfied §§ 102(2)(A) and (G). Section 102(2)(A) makes the completion of an "adequate" research program a prerequisite to agency action, adequacy being determined by the scope of the proposed project and by the extent potential adverse effects are indicated by existing knowledge. NEPA, the court continued, "envisions" that the evolution of projects will be the result of research efforts rather than that research will be utilized to rationalize projects already proposed.⁸⁹ Section 102(2)(A) requires a research effort which reflects the "current state of the art" of relevant scientific inquiry, and the research results, together with adequate documentation, belong in the impact statement. Finally, the court indicated that § 102(2) (G) directs agencies to undertake research of a "broader scope" than was traditionally within their jurisdiction.⁹⁰

We now turn to the judicial glosses which have been put on § 102 (2)(D). These have been largely concerned with the relationship of that section to the similar requirement imposed by § 102(2)(C) (iii). Does § 102(2)(D) require more extensive analysis of alternatives than § 102(2)(C)(iii), less extensive analysis, or the same analysis? What affirmative agency action is required by § 102(2)(D), either alone or in conjunction with § (C)(iii)?

In both Committee to Stop Route 7 v. Volpe⁹¹ and Natural Resources Defense Council v. Morton,⁹² § 102(2)(D) was utilized in conjunction with § 102(2)(C)(iii) to require a more extensive discussion of alternatives than was originally undertaken by the agencies. In Route 7 the district court held that an impact statement on a small segment of highway was not an adequate consideration of alternatives as required by §§ 102(2)(C)(iii) and (D).⁹³ The D.C. Circuit in Morton utilized § 102(2)(D) and § 102(2)(C)(iii) to require the Department of the Interior to consider a broad range of alternatives which could satisfy short-term energy requirements in lieu of of offshore drilling. The court rejected Interior's argument that both sections did not require a discussion of environmental consequences or that the department need consider only alternatives that it had the authority to adopt.

While neither Morton nor Route 7 differentiates § 102(2)(C)(iii) from § 102(2)(D), the "reasonableness" standard of Morton was applied exclusively to § 102(2)(D) by the Eighth Circuit in the Gillham Dam case. Citing Morton favorably, the Eighth Circuit stated that § 102(2)(D) requires more extensive treatment of alternatives than § 102(2)(C)(iii), although the court said that this did not mean an analysis under § 102(2)(D) should not be included in the impact statement.⁹⁴ The court concluded that a 37-page discussion of alternatives in a 200-page impact statement satisfied the broader requirement.

The district court decision in Conservation Council of North Carolina v. Froehlke⁹⁵ also suggested that the required discussion of alternatives under § 102(2)(D) is broader than under § 102(2)(C) (iii). The court held that § 102(2)(C)(iii) does not necessarily have to represent the complete analysis of alternatives, noting that while § 102(2)(D) requires agencies to "study, develop and describe" alternatives, § 102(2)(C)(iii) only requires agencies to include a meaningful reference to alternatives that will identify problems for the responsible federal official.⁹⁶

ZABEL V. TABB: AGENCY RELIANCE ON NEPA

A revealing fact about NEPA's three years in the courts is that federal agencies have rarely relied upon it to defend their actions in taking environmentally protective measures. The agencies have not creatively used NEPA's substantive requirements as authority for promulgating environmentally protective guidelines, for denying permits and licenses, and for proposing changes in legislative authority. Yet NEPA not only binds the agencies, it also frees them to take action. "[A federal agency] … is not only permitted, but compelled, to take environmental factors into account."⁹⁷

The case of Zabel v. Tabb⁹⁸ is an exception which proves the rule. In Zabel the plaintiff had applied to the Corps of Engineers for a dredge-and-fill permit in 1966, had seen it denied in 1967, and had convinced the federal district court to compel issuance of the permit in 1969. In 1970 the Fifth Circuit reversed. The decisive issue was whether the Corps had authority to deny the permit on any ground other than interference with navigation. The court held that the Fish and Wildlife Coordination Act⁹⁹ and NEPA authorized the Corps to condition or deny a permit on environmental grounds alone. Further, the court held that "although the Congressional command was not in existence at the time the permit in question was denied, the correctness of that decision must be determined by the applicable standards of today."¹⁰⁰

The Corps had relied upon the Fish and Wildlife Coordination Act to deny the permit. The Fifth Circuit observed that the enactment of NEPA gave "added impetus" to the Fish and Wildlife Coordination Act's requirements for consultation and consideration. The government's memorandum on the significance of NEPA to the case, however, gave NEPA an extremely narrow reading, one which ignored the expansion of basic agency mandates which Congress intended.¹⁰¹ The circuit court gave the Act a more liberal reading than the government apparently wished.

To our knowledge, Zabel has virtually no progeny in which the government has defended federal action on the ground that NEPA enabled a measure to be taken. Reliance on NEPA has occurred in administrative adversarial proceedings, although we do not know the full extent of such reliance, which appars to be very slight. The two instances given here, therefore, must be viewed as illustrative, not exhaustive.

In In re Archer,¹⁰² the Board of Land Appeals of the Department of the Interior relied upon NEPA in turning back a challenge to restraints that Interior had imposed on mineral prospectors, requiring them to protect and restore prospecting sites. The board said, "such requirements are reasonably related to the environmental ethic of this department and to the obligation of this Department under … [NEPA]."¹⁰³ A subsequent board opinion, however, seems to assume that in a ruling adverse to the environment, no obligation exists to reconcile the result with NEPA.¹⁰⁴

In Burlington Northern, Inc. Abandonment¹⁰⁵ Burlington Northern Railroad sought Interstate Commerce Commission approval to abandon an 11-mile section of track lying mostly within the city of [3 ELR 50107] Seattle. Intervenors sought to block the piecemeal disposition of the right-of-way, desiring that it be preserved as a park for a bicycle and pedestrian path. The commission found that NEPA required it to consider environmental effects along with traditional considerations of public convenience and necessity in reviewing the request for abandonment. The commission found that it could not require the company to dedicate the land to public use without working a confiscatory result, but it did delay permission to abandon for 90 days in order to allow any interested party to purchase the property at a price less than that which would be paid were condemnation proceedings carried out. The commission cited City of New York v. United States,¹⁰⁶ in which the commission was required to comply with NEPA in an earlier abandonment proceeding. One may speculate that the earlier litigation compelling the commission to comply with NEPA had an effect on its administrative decision in Burlington.

Administrative cases where the agencies have refused to read NEPA broadly are more typical of general agency attitudes. A particularly bad instance of such an attitude is In re El Paso Natural Gas Co.,¹⁰⁷ where the Federal Power Commission found that it did not have to comply with NEPA in approving a natural gas curtailment plan. A curtailment plan establishes priorities for denying gas to customers during a shortage. In the commission's view § 102(2) (C) was inapplicable because the plan might lie dormant for many years or never be used. Moreover, because the impacts which might occur under the plan lie in the future, the commission could not say what environmental consequences might ensue.¹⁰⁸

Attorneys need hardly be reminded that a judicial order requiring an administrative agency to exercise its discretion in a particular way is virtually impossible to obtain. Yet the kind of judicial relief which would stimulate affirmative federal use of NEPA is of this nature. In one administrative proceeding the Natural Resources Defense Council tried to evade this rule by asking the Civil Aeronautics Board to comply with § 103 of NEPA, which, NRDC argued, required the CAB to spell out how it might use its statutory authority to set rates and approve mergers and air routes in a way which furthered the national environmental policy. In dismissing the petition, the board put the burden right back on NRDC:

In short, the Board believes that its approach to environmental problems is in full compliance with the policies of NEPA. While we are always receptive to suggestions for improvement, the instant complaint falls far short of the type of concrete proposals that would assist us in refining our procedures.¹⁰⁹

Formal but nonadversarial reliance on NEPA as a basis for federal action has occurred in a few instances. Executive orders establishing the Refuse Act Permit Program, regulating the use of off-road vehicles on public lands, and barring the use of poisons in federal predator control programs have drawn on NEPA as part of their statutory authrity.¹¹⁰ The Forest Service has modified the manner in which it will implement the multiple use concept, relying in part on NEPA.¹¹¹ It has also relied in part on NEPA in issuing proposed regulations governing mining on national forest lands.¹¹² Similar reliance has been attributed by the CEQ to the Corps of Engineers for its dredge-and-fill permit rules, and to the Atomic Energy Commission for its rules which require licensees to account more carefully for long-term environmental costs.¹¹³

The instances in which federal agencies affirmatively assert their power under NEPA to take environmentally protective actions will probably be more important in the long run than the instances in which NEPA is forced upon them in citizens' lawsuits. Courts in general pay special attention to the agency's interpretation of its power under an enabling statute. Although NEPA is a special case because it applies to all agencies, nevertheless the courts would probably be impressed with an agency's claim to act where that claim is not in its obvious self-interest. Hence it is especially discouraging that to date the government has made very little affirmative use of the legal authority provided it by NEPA.

1. 430 F.2d 199, 1 ELR 20023 (5th Cir. 1970), cert. denied, 401 U.S. 910 (1971).

2. Calvert Cliffs' Coordinating Committee v. Atomic Energy Comm'n, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972).

3. Appendix B.

4. B. Cohen and J. Warren, Judicial Recognition of the Substantive Requirements of the National Environmental Policy Act of 1969, 13 B.C. IND. & COM. L. REV. 685 (1972); N. Landau, A Postscript to Calvert Cliffs', 13 B.C. IND. & COM. L. REV. 705 (1972); A. Murphy, The National Environmental Policy Act and the Licensing Process: Environmentalist Magna Carta or Agency Coup de Grace?, 72 COL. L. REV. 963 (1972); D. Tarlock, Balancing Environmental Considerations and Energy Demands: A Comment on Calvert Cliffs' Coordinating Committee, Inc. v. AEC, 47 IND. L.J. 645 (1972); Comment, Landmark Decision on the National Environmental Policy Act in Calvert Cliffs' Coordinating Committee, Inc. v. Atomic Energy Commission, 1 ELR 10125 (August 1971); Comment, Calvert Cliffs' Coordinating Committee v. AEC and the Requirement of "Balancing" under NEPA, 2 ELR 10003 (January 1972); Casenote, 13 B.C. IND. & COM. L. REV. 802 (1972); Casenote, 52 BOSTON U.L. REV. 425 (1972); Casenote, 24 FLA. L. REV. 814 (1972); Casenote, 60 GEO. L.J. 1353 (1972); Casenote, 20 KANS. L. REV. 501 (1972); Casenote, 25 VAND. L. REV. 258 (1972); B. Boyer, A Re-evaluation of Administrative Trial-type Hearings for Resolving Complex Scientific and Economic Issues, Staff Report to the Chairman of the Administrative Conference of the United States (Dec. 1, 1971).

5. The specific holdings of Calvert Cliffs' are set out succinctly in the headnote to the case in the ENVIRONMENTAL LAW REPORTER:

The regulations promulgated by the AEC to comply with the procedural obligations imposed upon federal agencies by the National Environmental Policy Act of 1969 violate the Act's requirements as follows: (1) the AEC's refusal to independently review the nonradiological environmental impact of nuclear power plant operations upon which state or other federal agencies have already passed conflicts with NEPA's mandate to the relevant agency to assess the complete environmental costs of its action on a case-by-case basis; (2) the AEC's failure to require hearing board review of nonradiological environmental factors unless affirmatively raised by outside parties or staff members violates the Commission's affirmative duty to consider environmental values at every stage of the decision-making process; (3) the AEC's refusal to consider nonradiological environmental factors at hearings officially noticed before March 4, 1971 violates NEPA's mandate that such factors be taken into account by each agency to the fullest extent possible from the time the act went into effect on January 1, 1970; (4) the AEC's refusal to consider alteration of plans, backfitting or construction halts for nuclear facilities which were granted construction permits prior to the effective date of NEPA but for which operating licenses have not yet been granted, so as to allow for interim modifications of these facilities consonant with environmental values, is inconsistent with the Commission's duty to fully consider action which will avoid environmental degradation. The case is therefore remanded to the AEC for proceedings consistent with the court's opinion. NEPA imposes a substantive duty upon every federal agency to consider the effects of each decision upon the environment and to use all practicable means, consistent with other essential considerations of national policy, to avoid environmental degradation. The act also imposes procedural obligations which assure that the substantive duty is properly performed. These procedural duties are not inherently flexible. They require agency compliance to the fullest extent unless there is a clear conflict with the agency's other statutory authority. 1 ELR 20346.

6. JOINT COMM. ON ATOMIC ENERGY, SELECTED MATERIALS ON THE CALVERT CLIFFS' DECISION, ITS ORIGIN AND AFTERMATH, 92D CONG., 1ST SESS. (Joint Comm. Print February 1972); SENATE COMM. ON INTERIOR AND INSULAR AFFAIRS, EFFECT OF CALVERT CLIFFS' AND OTHER COURT DECISIONS UPON NUCLEAR POWER IN THE UNITED STATES, SERIAL NO. 92-28, 92D CONG., 2D SESS. (Comm. Print 1972).

7. 42 U.S.C. § 2242, Pub. L. No. 92-307, 86 Stat. 191 (June 2, 1972). The authority granted to the AEC to issue temporary operating licenses on completion of expedited review procedures expires on October 30, 1973.

8. 449 F.2d at 1112, 1 ELR at 20347.

9. 449 F.2d at 1112, note 5, 1 ELR at 20347, note 5.

10. 449 F.2d at 1113, 1 ELR at 20348.

11. 449 F.2d at 1123, 1 ELR at 20353.

12. 449 F.2d at 1114, 1 ELR at 20348.

13. 449 F.2d at 1115, 1 ELR at 20349.

14. 449 F.2d at 1114, 1 ELR at 20348.

15. It might be asked what would happen if there was evidence that the statement was not considered in good faith in the review process. In Calvert Cliffs' the failure was only potential, lying in the structure of Rule 13. (10 CFR Part 50, App. D, at 249, cited in Calvert Cliffs', 449 F.2d at 1117, 1 ELR at 20350.) One case deals with an actual instance of such failure. Daly v. Volpe, Appendix B, found that inadequate consideration means that NEPA had not, been complied with:

The state's first draft environmental impact statement was inadequately considered by FHWA. Indeed, the decision approving route E-3 came the first business day following receipt of the statement. The statute contemplates more deliberation than the time required to use a rubber stamp. 350 F. Supp. at 259, 2 ELR at 20445.

Daly also indicated that later statements did not correct the deficiency, since the statement is to serve as the basis for the decision, not an after-the fact justification.

16. 321 F. Supp. 1088, 1 ELR 20082 (E.D. Va.), rev'd, 451 F.2d 1130, 1 ELR 20612 (4th Cir. 1971).

17. 451 F.2d at 1139, 1 ELR at 20615.

18. 455 F.2d 412, 2 ELR 20017 (2d Cir.), cert. denied, 41 U.S.L.W. 3184 (Oct. 10, 1972).

19. 455 F.2d at 419, 2 ELR at 20020 (2d Cir. 1972).

20. Hanly v. Mitchell, __ F. Supp. __, 2 ELR 20181 (S.D.N.Y.), rev'd (Hanly I), 460 F.2d 640, 2 ELR 20216 (2d Cir.), cert. denied, 41 U.S.L.W. 3247 (Nov. 7, 1972), sub nom. Hanly v. Kleindienst, __ F. Supp. __, 3 ELR 20016 (S.D.N.Y.), rev'd (Hanly II), __ F.2d __, 2 ELR 20717 (2d Cir. 1972).

21. 460 F.2d at 647, 2 ELR at 20220.

22. __ F.2d __, 2 ELR 20717.

23. Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 728, 1 ELR 20130 (E.D. Ark. 1970-71), __ F. Supp. __, 2 ELR 20260 (E.D. Ark.), 342 F. Supp. 1211, 2 ELR 20353 (E.D. Ark.), aff'd, 470 F.2d 289, 2 ELR 20740 (8th Cir. 1972).

24. 470 F.2d at 301, 2 ELR at 20745.

25. The Cache River case, __ F.2d __, 3 ELR 20001 (8th Cir. 1972).

26. __ F.2d at __, 3 ELR at 20003.

27. 337 F. Supp. 150, 2 ELR 20275 (E.D.N.Y.), 344 F. Supp. 929, 2 ELR 20688 (E.D.N.Y. 1972).

28. 344 F. Supp. at 939, 2 ELR at 20689.

29. 344 F. Supp. at 940, 2 ELR at 20690.

30. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY, THIRD ANNUAL REPORT 245 (August 1972), citing language at 449 F.2d at 1113-14, 1 ELR at 20348.

31. 337 F. Supp. 165, 2 ELR 20028 (D.D.C.), 337 F. Supp. 167, 2 ELR 20089 (D.D.C. 1971), motion for summary reversal denied, 458 F.2d 827, 2 ELR 20029 (D.C. Cir.), dismissed as moot, 337 F. Supp. 170, 2 ELR 20071 (D.D.C. 1972).

32. 458 F.2d at 833, 2 ELR at 20032 (D.C. Cir.).

33. Environmental Defense Fund v. Corps of Engineers, Appendix B, 325 F. Supp. at 761, 1 ELR at 20142.

34. 455 F.2d 1111, 1 ELR 20602 (9th Cir. 1971), modified on rehearing, 455 F.2d 1122, 2 ELR 20090 (9th Cir.), 350 F. Supp. 262, 2 ELR 20545 (W.D. Wash. 1972).

35. 350 F. Supp. at 266, 2 ELR at 20547.

36. __ F. Supp. __, 2 ELR 20604 (N.D. Cal.), __ F. Supp. __, 2 ELR 20735 (N.D. Cal. 1972).

37. __ F. Supp. at __, 2 ELR at 20738.

38. NEPA, § 102(2)(C), Appendix A.

39. Comment, supra note 4, at 2 ELR 10003, 10004-05.

40. CEQ Third Annual Report, supra note 30, at 245-46.

41. Sierra Club v. Froehlke (Trinity River-Wallisville Dam), Appendix B, illustrates another aspect of the problem. The court viewed the impact statement as a "decision document," yet it was only part of the voluminous record, which filled 13 book boxes with 246 separate items ranging from a few pages to several thousand pages each (court's footnote 1).

42. E.g., the Supreme Court's interpretation of the "parklands statutes," 49 U.S.C. § 1653(f) (1966); 23 U.S.C. § 138 (1968), in Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1971) (fully cited in Appendix B).

43. E.g., SENATE COMM. ON INTERIOR AND INSULAR AFFAIRS, NATIONAL ENVIRONMENTAL POLICY ACT OF 1969, S. REP. NO. 91-296, 91st Cong., 1st Sess. 3, 9 (research and monitoring functions now transferred to other sections from S. 1075, § 201), 10 (CEQ as providing "early warning" through study and analysis; date to be provided in annual report) (July 9, 1969).

44. NEPA §§ 103-105, Appendix A. See Joint Hearings Before the Senate Comm. on Public Works and the Comm. on Interior and Insular Affairs, Serial No. 92-H32, 92d Cong., 2d Sess. 394-410 (colloquy between Senators Baker and Buckley and Mr. Cramton), 455-56 (colloquy between Senator Buckley and Mr. Anderson) (March 1, 7, 8 and 9, 1972).

45. Tarlock, supra note 4 at 658.

46. Cohen and Warren, supra note 4 at 698. See Hammond, Convention and Limitation in Benefit-Cost Analysis, 6 NAT. RES. J. 195 (1966); E. Devine, The Treatment of Incommensurables in Cost-Benefit Analysis, 42 LAND ECONOMICS 383 (August 1966); J. Knetsch et al., Federal Natural Resources Development: Basic Issues in Benefit and Cost Measurement, Natural Resources Policy Center, George Washington University (May 1969); C. Cicchetti et al., Benefits or Costs? An Assessment of the Water Resources Council's Proposed Principles and Standards, Department of Geography and Environmental Engineering, Johns Hopkins University (March 1972). For further bibliography on cost-benefit determinations, see A. Priest and R. Turvey, Cost-Benefit Analysis: A Survey. 75 THE ECONOMIC JOURNAL 683 (1965).

47. See Comment, supra note 4, and AEC documents cited, 2 ELR at 10005.

48. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 410, 1 ELR 20110, 20112 (1971), construing the Administrative Procedure Act, 5 U.S.C. § 701(a)(1) and (2), very narrowly. The APA states that review is foreclosed where "agency action is committed to agency discretion by law." The Supreme Court borrows the phrase "law to apply" from the legislative history of § 701. See S. REP. NO. 758, 79th Cong., 1st Sess. 26 (1945).

49. NEPA, § 101, Appendix A.

50. 449 F.2d at 1115, 1 ELR at 20349.

51. 339 F. Supp. 1375, 2 ELR 20221 (W.D. Tenn.), __ F. Supp. __, 3 ELR 20157 (W.D. Tenn. 1972).

52. Appendix B.

53. 16 U.S.C. §§ 661-666.

54. 339 F. Supp. at 1380, 2 ELR at 20223.

55. Environmental Defense Fund v. Corps of Engineers, Appendix B.

56. 470 F.2d at 297, 2 ELR at 20743.

57. 470 F.2d at 298, 2 ELR at 20744.

58. 470 F.2d at 300, 2 ELR at 20745.

59. 470 F.2d at 299, 2 ELR at 20744 note 15. District of Columbia Circuit: Calvert Cliffs', Natural Resources Defense Council v. Morton, Committee for Nuclear Responsibility v. Seaborg. Second Circuit: Scenic Hudson Preservation Conference v. Federal Power Comm'n (Scenic Hudson II), Hanly v. Mitchell (Hanly I). Fourth Circuit: Ely v. Velde [and now one must add Conservation Council of North Carolina v. Froehlke]. All of these cases are fully cited in Appendix B.

60. The Tenth Circuit in National Helium Corp. v. Morton, 326 F. Supp. 151, 1 ELR 20157 (D. Kan. 1971), aff'd, 455 F.2d 650, 1 ELR 20478 (10th Cir. 1971).

61. Lathan v. Volpe, Brooks v. Volpe, Citizens for Reid State Park v. Laird, Morningside-Lenox Park Ass'n v. Volpe, Environmental Defense Fund v. Corps of Engineers (Tennessee-Tombigbee), all cited in Appendix B.

62. 470 F.2d at 301, 2 ELR at 20745.

63. Supra note 42.

64. 325 F. Supp. at 755, 1 ELR at 20140.

65. Environmental Defense Fund v. Froehlke (Cache River Project), Appendix B.

66. __ F.2d at __, 3 ELR at 20005.

67. 340 F. Supp. 222, 2 ELR 20155 (M.D.N. Car.), aff'd, __ F.2d __, 2 ELR 20259 (4th Cir. 1972), __ F.2d __, 3 ELR 20132 (4th Cir. 1973).

68. Appendix B.

69. Text supra the court's footnote 346. See also cost-benefit materials cited supra note 46.

70. Text infra the court's footnote 339.

71. Discussion supra court's footnotes 347, 424, and discussion immediately preceding final "Summary and Holding" at end of opinion.

72. "Summary and Holding of this Court" at end of opinion.

73. Hanly II, Appendix B, __ F.2d at __, 2 ELR at 20723.

74. 336 F. Supp. 783, 2 ELR 20122 (D. Me. 1972).

75. Appendix B, 337 F. Supp. at 158, 2 ELR at 20276.

76. 449 F.2d at 1113 note 9, 1 ELR at 20348 note 9.

77. 449 F.2d at 1114, 1 ELR at 20348.

78. Appendix B.

79. Scenic Hudson Preservation Conference v. Federal Power Comm'n (Scenic Hudson I), 354 F.2d 608, 1 ELR 20292 (2d Cir. 1965), cert. denied sub nom. Consolidated Edison Co. of New York v. Scenic Hudson Preservation Conference, 384 U.S. 941 (1966); Scenic Hudson II, 453 F.2d 463, 1 ELR 20496 (2d Cir. 1971), cert. denied, 407 U.S. 926, 2 ELR 20436 (1972).

80. 407 U.S. at 932, 2 ELR at 20437.

81. Greene County Planning Board v. Federal Power Comm'n, Appendix B.

82. Environmental Defense Fund v. Corps of Engineers, Appendix B.

83. 325 F. Supp. at 756-57, 1 ELR at 20140-41.

84. 325 F. Supp. at 761, 1 ELR at 20142.

85. Appendix B.

86. __ F. Supp. at __, 3 ELR at 20158.

87. Environmental Defense Fund v. Corps of Engineers, 331 F. Supp. 925, 1 ELR 20466 (D.D.C. 1971), 348 F. Supp. 916, 2 ELR 20536 (N.D. Miss. 1972).

88. 325 F. Supp. 1401, 1 ELR 20207 (D.D.C. 1971).

89. 325 F. Supp. at 1404, 1 ELR at 20208.

90. Id.

91. 346 F. Supp. 731, 2 ELR 20446 (D. Conn.), motions to amend the judgment denied, __ F. Supp. __, 2 ELR 20612 (D. Conn. 1972).

92. Appendix B.

93. 346 F. Supp. at 740, 2 ELR at 20449.

94. 470 F.2d at 296, 2 ELR at 20743.

95. Appendix B.

96. 340 F. Supp. at 228, 2 ELR at 20157.

97. Calvert Cliffs', Appendix B, 449 F.2d at 1112, 1 ELR at 20347.

98. Appendix B. See Comment, National Environmental Policy Act of 1969: A Mandate to the Corps of Engineers to Consider Ecological Factors. Zabel v. Tabb, 430 F.2d 199 (5 Cir. 1970), 50 Bos. UNIV. L. REV. 616 (1970).

99. 16 U.S.C. §§ 661-666.

100. 430 F.2d at 213, 1 ELR at 20030. See also Bankers Life and Casualty Co. v. Village of North Palm Beach, Florida, __ F.2d __, 2 ELR 20528 (5th Cir. 1972).

101. ELR Dig. No. [40], Doc. I.

102. In re J. D. Archer, Before the Department of the Interior, Board of Land Appeals, 1 ELR 30035 (May 26, 1971).

103. 1 ELR at 30035.

104. In re Alfred E. Koening, Before the Department of the Interior, Board of Land Appeals, 2 ELR 30002 (Oct. 26, 1971). See Comment, Interior Board of Land Appeals Confirms Right of Access to Mining Claims Across Public Lands, 2 ELR 10015 (February 1972).

105. Burlington Northern, Inc., Abandonment between Freemont and Kenmore, King Co., Wash., Before the Interstate Commerce Comm'n, 2 ELR 30034 (October 5, 1972).

106. Appendix B.

107. In re El Paso Natural Gas Co., Order Denying Motion to Terminate Proceeding and to Require Staff to Prepare and Circulate Environmental Impact Statement, Before the Federal Power Comm'n, 2 ELR 30025 (Aug. 22, 1972).

108. 2 ELR at 30026.

109. Complaint of the Natural Resources Defense Council, Before the Civil Aeronautics Board, 1 ELR 30045 (July 26, 1971).

110. CEQ Third Annual Report, supra note 30 at 227.

111. Forest Service, Emergency Directive No. 1 (Nov. 9, 1971), Title 2100, Forest Service Manual.

112. Released to selected recipients March 23, 1971. See Comment, supra note 104, 2 ELR at 10016.

113. CEQ Third Annual Report, supra note 30 at 227.

3 ELR 50099 | Environmental Law Reporter | copyright © 1973 | All rights reserved