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5 ELR 50005 | Environmental Law Reporter | copyright © 1975 | All rights reserved The National Environmental Policy Act: Reprinted from The Fifth Annual Report of the Council on Environmental Quality — Chapter 4. (GPO 1974)"The public interest requires doing today those things that men of intelligence and good will would wish, five or ten years hence, had been done," declared Edmund Burke nearly two centuries ago. At the turn of this decade, in pursuit of the public interest, Congress passed the National Environmental Policy Act1 — a comprehensive national policy for restoring, protecting, and enhancing the quality of our environment. In NEPA, Congress declared that "each person should enjoy a healthful environment, and … each person has the responsibility to contribute to the preservation and enhancement of the environment." Congress also authorized and directed that "to the fullest extent possible … the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act." And focusing on the decisionmaking processes of Federal departments and agencies, Congress ordered that agencies prepare an environmental impact statement in connection with every major action which significantly affects the environment. Congress further ordered that this environmental analysis accompany the corresponding proposal through the agency's decisionmaking process and that agency officials carefully consider it at each stage. In passing the law, Congress demanded no less than a major new way of thinking and acting by the executive agencies of the Federal Government. Nearly 5 years have passed since NEPA was enacted. Two years ago, in our Third Annual Report, we reviewed the initial impact of the law and discussed the process of change which it had initiated.2 Evolution has continued during the ensuing period. Overall, what began as a sharp departure from previous practice has become with time an increasingly accepted and integral part of the Federal decisionmaking process. To a significant, (if still incomplete) degree, NEPA has succeeded in its objective of incorporating an environmental perspective into the decisionmaking process of Federal agencies. Beyond that, the approaches of NEPA have spread beyond the Federal Government and have been adopted by state and local governments and even by other nations. This chapter updates and expands on the perspective presented in the Council's Third Annual Report. The first section looks back over the last 5 years at the process by which Federal agencies adapted their activities to the law. The next sections cover significant events during the past year in administration of the law and in judicial interpretation of its requirements. Next discussed are the development of state NEPA's and the adoption of the impact statement process by foreign countries. The chapter concludes with some thoughts on what the future may hold for the environmental impact statement process. Evolution of NEPA — The First Five Years When the first 5 years of NEPA are examined, three broad stages of development are evident: an initial period, during which Federal agencies became aware of the Act; a transition period, in which agencies came to understand and adapt to its requirements; and the present period, in which NEPA is increasingly being integrated into the fabric of agencies' programs. Development of Awareness — 1969-70 The first stage in the development of NEPA began in the spring of 1969 and lasted about a year. During consideration of the bill that ultimately became NEPA, Congress saw a need to modify Federal administrative practice so as to encourage the development and use of environmental analysis in agency decisionmaking. On April 16, 1969, it was first suggested that an "action forcing mechanism" be inserted that would prod agencies to pay heed to the policies and goals of the Act.3 This suggestion led to the requirement that agencies prepare environmental impact statements on their major actions that significantly affect the environment. NEPA was signed by the President on January 1, 1970. Initially, the agencies were generally unaware of the requirements of the Act. When the requirements were pointed out, most agencies adopted the position that NEPA did not apply to them at all — at least not to most of their programs — or, if it did apply, an impact statement could be prepared by their administrative staff as a finishing touch when the project went forward for final agency approval. This first stage ended in April 1970 with the initial major court decision under the Act — the Trans-Alaska Pipeline case.4 In this case, the court determined that the Secretary of the Interior could not grant permits for the construction of a road to be used in connection with construction of the pipeline, until he had met the requirements of NEPA. The decision gave reality and importance to NEPA, and it focused attention within agencies on the specific requirements of section 102(2) (C) of the Act. The Transition Period — 1970-73 The transition period began in the spring of 1970 and lasted approximately 3 years. During this period agencies came to grips with the fact that NEPA had to become a regular part of their activities. At first, many agencies attempted to comply with the Act on an ad hoc basis. Frequently, an agency would decide to prepare an impact statement only when challenged by the public for its failure to do so. The period was market with uncertainty and, in some cases, disruption. A number of basic questions surfaced during this period. What was meant by the concept "major Federal action significantly affecting the environment"? When in the development of a project must an environmental impact statement be prepared? What must the impact statement contain? How were environmental consequences to be forecast? To assist agencies in developing answers, CEQ issued three sets of instructions. In April 1971, CEQ's interim guidelines (issued a year earlier) were revised to provide expanded guidance on the timing of the preparation of a statement and its use in the agency's decision process.5 In May 1972, CEQ issued a set of recommendations on the contents of statements and on procedures for their preparation and circulation to other agencies and the public.6 In August 1973, CEQ issued a further revision of its guidelines, establishing a detailed structure and comprehensive set of policies for the overall operation of the process.7 These three sets of directives built on the rapidly expanding base of agency experience and codified the major court decisions that were being handed down. By the summer of 1973, with these instructions in hand, most of the early uncertainty over NEPA's requirements had been resolved. Experience of the AEC — The experiences of agencies during this transition period varied widely. Nonetheless, to understand the difficulties of the transition, it is useful to focus on how one agency wrestled with the requirements of the Act. Under the Atomic Energy Act of 1954,8 the Atomic Energy Commission was given the regulatory responsibility to insure that peaceful uses of atomic energy do not result in undue risks to public health and safety. With regard to nuclear power plants, a comprehensive licensing process was established under which applicants were required to obtain first a permit to construct a plant and then a license to operate it.9 At the time NEPA was enacted, an applicant for a construction permit was required to submit a detailed technical study of the proposed site, the design of the facility, and the operating procedures whish would be followed. After technical review by the AEC's regulatory staff, this application was submitted to the Advisory Committee on Reactor Safeguards (ACRS), a special group of experts established by Congress to advise the Commission on nuclear safety matters. After a mandatory hearing in which the public was invited to participate, an initial decision was issued by the Advisory Committee, which was then subject to review by the Atomic Safety and Licensing Appeal Board or by the Commission itself. Finally, when an application for the operating license was filed, normally about 2 years later, the regulatory staff and the ACRS again conducted a comprehensive safety review.10 If there was sufficient public interest, a hearing was held. After enactment of NEPA, the AEC determined that the licensing of nuclear power plants was a "major Federal action significantly affecting the quality of the environment" and that an impact statement was required.At the same time, AEC made an initial policy decision to implement NEPA within the framework of its ongoing regulatory program and to emphasize in the statement the radiological impact of the proposed facility. With regard to other environmental impacts, such as the thermal effects of the discharge of power plant cooling water, the AEC determined to accept certification of state of regional water quality agencies as adequate evidence that there would not be an adverse effect on the environment. AEC also made the decision to undertake environmental analysis only on new applications, determining that no environmental issues could be raised at hearings on nuclear power plants noticed prior to March 1971. In short, the AEC initially determined that its NEPA analysis would be initiated prospectively for new power plants coming forward for licensing, and that its analysis would concentrate primarily on issues relating to radiation.11 Calvert Cliffs' — In July 1971, in one of the major NEPA decisions, the U.S. Court of Appeals for the District of Columbia ruled in the Calvert Cliffs' case that the AEC procedures were unacceptable.12 The court declared that the AEC must undertake an independent evaluation and balancing of a variety of environmental factors, such as thermal effects, notwithstanding the fact that other Federal or state agencies had certified that their own environmental requirements would be satisfied. In each case, the benefits of the licensing action were to be assessed and weighed against the environmental costs, and alternatives were to be considered that would affect the balancing of values. The decision also made clear that the Act was not to be read as requiring only an impact statement that might be properly prepared but later ignored. The court noted that the Act also mandates a careful and informed decisionmaking process. Environmental information was to be sought, reported, and, most importantly, used in making agency decisions. The decision further required that contested as well as uncontested proceedings must undergo an independent substantive review of environmental matters, and that environmental issues must be considered in connection with all nuclear power reactor licensing decisions which took place after January 1, 1970, the effective date of NEPA. The court also required a NEPA review for construction permits issued prior to January 1, 1970, in cases where an operating license had not yet been issued. Thus the decision in Calvert Cliffs' significantly broadened the range of issues which the AEC was required to consider in discharging its NEPA responsibilities. It also directed that this analysis be undertaken for many nuclear power plants initiated prior to the enactment of NEPA. In August 1971, the AEC announced that it would not appeal the decision but would accept the judicial mandate and address NEPA responsibilities as defined by the court. In making the announcement, the Chairman of the AEC stated that [T]he effect of our revised regulations will be to make the Atomic Energy Commission directly responsible for evaluating the total environmental impact, including thermal effect of nuclear power plants, and for assessing this impact in terms of the available alternatives in the need for electric power. We intend to be in a position to be responsive to the concerns of conservation and environmental groups as well as other members of the public.At the same time, we are also examining steps that can be taken to reconcile a proper regard for the environment with the necessity of meeting the nation's growing requirements for electric power on a timely basis.13 Impact of Calvert Cliffs' — The impact of the Calvert Cliffs' decision on the licensing and regulatory functions of the AEC was immediate and far-reaching. The broadened regulatory responsibilities required development of new technical expertise in the AEC as well as in industrial organizations, and it necessitated the development of new technical and cost-benefit analysis concepts. Further, the Calvert Cliffs' decision required the development of new procedural processes to provide for the participation of the applicant, other agencies, and the public in the environmental review process. As an immediate problem, the Calvert Cliffs' decision resulted in a backlog of 110 nuclear power plants and 10 nuclear facilities requiring expanded or new environmental reviews. Whereas previously the AEC had devoted about one-half a man-year per case for NEPA review, after Calvert Cliffs' it invested 2 to 5 man-years for each application. Fortunately, the AEC had previously been involved in environmental research because of its environmental protection responsibilities with respect to nuclear material; hence the agency was able to draw on well-experienced people among its own employees and at three of its laboratories — Argonne, Oak Ridge, and Pacific Northwest — to meet this new workload. It new procedure involved, for each environmental report received from an applicant, the formation of a review team, consisting of members of the regulatory staff and environmental scientists from the laboratories. These teams included specialists in the major scientific and engineering disciplines involved in evaluating environmental impact, normally ecology, hydrology, biology, radiation, health physics, meteorology, and chemical, mechanical, civil, and nuclear engineering. A single team, after reviewing the reports, undertook field and library research and wrote the impact statement, using all available information. If additional field data were required, the team recommended to the applicant that it produce them. In addition, the organization of regulatory personnel in Washington was altered. Within 4 months of the Calvert Cliffs' decision, about 200 people were involved in environmental review efforts.14 In order to facilitate the new environmental reviews, the AEC developed a series of guides for industry which defined the information necessary for evaluating environmental impacts. One of the series was the guide for preparation of environmental reports for nuclear power plants.15 This guide specified for the license applicant the kinds of information required in the preparation of his environmental report, including: (1) the site and reactor characteristics; (2) power needs in the area; (3) the environmental effects of site preparation; (4) plant and transmission facilities construction; (5) the environmental effects of plant operation; (6) effluent and environmental measurements and monitoring; (7) the environmental effects of accidents; (8) the economic and social effects of plant construction [5 ELR 50007] and operation; (9) alternative energy sources and sites; and (10) plant design alternatives. An objective of the guide was to assure that the applicants would provide all of the required data in the first submission of the report and thus avoid uncertainties and time-consuming delays. The applicant's environmental report was required to demonstrate, through the cost-benefit analysis of the proposed plant, how in the applicant's judgment, the aggregate benefits outweighed aggregate costs. Upon receipt of an acceptable environmental report, the AEC multidisciplinary teams would perform detailed evaluation of the potential environmental impact of the proposed nuclear power plant and the environmental cost-benefit analysis. The AEC also adopted new approaches to public hearings. Rules, restructured for the conduct of licensing procedures, were aimed at assuring early and maximum participation of interested parties, timely availability of all relevant information, and effective and expeditious progress during the procedural steps in the hearing process. The application of the NEPA review procedures has resulted over the past 3 years in many modifications and changes in nuclear plant design, including redesign of intake structures and major cooling systems, modifications ofthe thermal plume and the radiological and the chemical waste systems, rerouting of transmission lines, installation of fish screens, redesign of causeways, revision of environmental monitoring plans, and new studies of alternative cooling systems.16 The years 1971 to 1973 placed particular strains on the AEC. The agency had to analyze the large number of plants in the licensing pipeline as well as new applications coming before it. But by mid-1974, the backlog had been surmounted and the changes required of the AEC regulatory program had been put into effect. The initial uncertainty and disruption had been overcome. Integration of NEPA into Agency Operations The third stage of NEPA development began for many agencies with the promulgation of CEQ's guidelines in August 1973. With the early uncertainties about NEPA clarified, the task was to weave the policies and procedural requirements of NEPA into each agency's programs. For many agencies, this stage is not yet complete. What must ultimately emerge is a consideration of the environmental implications of an agency's activities as an integral component of the agency's normal decisionmaking process. Naturally, the experiences of agencies differ. However, the Forest Service provides an interesting example of the integration of NEPA into the fabric of an agency's operations. The Forest Service is one of the Nation's oldest natural resource agencies. It is responsible for national leadership in forestry. Its activities include the management, protection, and development of the 187-million-acre National Forest System to produce wood, water, forage, wildlife, and recreation; and cooperation with state foresters, private owners of forest lands, wood processors, and private and public agencies in all aspects of forestry management. When NEPA was enacted, the Forest Service saw it as supportive of the Service's conservation ethic and fully consistent with its existing responsibilities as contained in the Organic Act of 1897 and the Multiple Use-Sustained Yield Act of 1960.17 The Forest Service also perceived procedural similarities to existing practices. For example, the Service had for some years required multiple use surveys and impact surveys similar to environmental statements before undertaking actions such as major timber harvesting contracts, although the surveys had not required either formalized public review or a broad analysis alternatives. Because of these similarities, some officials of the Forest Service were tempted to view NEPA as not affecting their agency. This view did not prevail. Instead, the decision was made to implement fully the new law. A year after the passage of the Act, the Chief of the Forest Service said: "We are going through a period of interpreting the requirements of the Act. During this period, we must lean over backward to comply with both the letter and the spirit of this law and we must do our best to learn how to work with it…."18 As a first step, the Forest Service integrated the mandates of NEPA into its formal statement of objectives and policy. Framework for the Future, issued in early 1970,19 including protection and improvement of the quality of air, water, soil, of natural beauty, and of open space, among the agency's major objectives. The Forest Service then developed instructions for implementing the impact statement requirements. The agency discovered that it could not develop a simple definition of major actions requiring a statement; therefore, a case-by-case evaluation of proposed actions against several criteria was required. With experience, the Forest Service was later able to identify certain activities that almost always require an impact statement, among them land use plans, new winter sports sites, major pesticide programs, and activities in roadless areas. In 1971, the Forest Service issued detailed procedural instructions to its field offices on preparing and processing impact statements.20 Since it is essential that environmental factors be considered early in planning and decisionmaking, the Forest Service decided to integrate the preparation of impact statements into its land use planning process. Late in 1971, the multiple use and land use planning system was completely revised in order to merge it with the requirements of NEPA.21 Later, on the basis of an interdisciplinary study, the Forest Service adopted a "unified planning and decisionmaking concept" (UPD),22 which changed the planning approach for the use of a forest area. In the past, decisions governing the use of an area for activities such as timber harvesting, grazing, mining, and recreation had been made more or less independently. Under UPD, decisions governing these different uses of an area were made together. NEPA was a major factor in the development of this integrated approach. Setting policy was not the same as implementing it. The process of adapting to the new requirements and procedures took time because it affected the efforts of many Forest Service personnel. Since the Forest Service is highly decentralized, the responsibility for preparing impact statements was delegated to its field offices. Moreover, the effect of Forest Service policies was to require some form of environmental analysis on virtually all actions. For all major actions, an environmental impact statement (EIS) was prepared; for minor actions, environmental analysis covering the same major points as an EIS served as primary documentation for decisions and actions. As a result, the Forest Service policies and procedures required a very large number of Forest Service personnel to become involved in NEPA, not as a separate function or activity but as an integral part of planning and decisionmaking. Thus, rather than creating a separate organizational structure for NEPA, an Environmental Coordinator in Washington with only a small staff was assigned oversight, coordination, and leadership responsibility for NEPA. After this approach proved successful, similar positions were designated in the field. NEPA also brought about major changes in the ways in which the Forest Service related to the public. Prior to NEPA, the public, especially the local public, were "informed" of Forest Service decisions. Rarely were they meaningfully involved in decisionmaking. Although some personnel are still reluctant to involve the public, the Forest Service has made major changes since NEPA in its attitudes and practices. Different forms of public participation are now used, depending on the situation and the stage of planning. In local areas, citizens are now invited early in a planning process to provide ideas and help identify issues and alternatives. Incorporation of NEPA public involvement requirements has broadened the "public" which is involved, making it possible for interested citizens to participate in decisions on projects proposed for any part of the [5 ELR 50008] country. Coupled with the requirement under NEPA to analyze alternatives to a proposal, this arrangement has resulted in the consideration of a much wider range of possible uses for a forest area than had occurred in the past. The new approach to the environment has created more than procedural and administrative changes. It has also stimulated substantive review of Forest Service management practices, especially timber management.23 Since the passage of NEPA, a number of studies have examined timber cutting practices from a long-term environmental perspective. The Forest Service itself has undertaken studies of the Bitterroot National Forest, the Monongahela National Forest, the Wyoming National Forests, as well as a nationwide survey of National Forest timber management.24 Major reviews by authorities outside the Forest Service have included a study of clear-cutting by the deans of five forestry schools, an investigation of clear-cutting on public lands by a Senate subcommittee, an investigation by the West Virginia legislature of timber harvesting in the Monongahela National Forest, and a study of management practices of the Bitterroot National Forest in Montana by a team of scientists from the University of Montana. In addition to timber management, other Forest Service responsibilities were affected by NEPA. In 1970, a comprehensive national survey of range ecosystems was initiated. This survey, completed in 1972, provides new guidance for the most productive and environmentally sound management of range lands. In 1974, the Service proposed the first regulations to control indiscriminate and damaging mineral prospecting and development activities on National Forest lands. Because of the nature of its activities, the Forest Service recognized the value and need for program impact statements as early as 1971. Statements have been prepared on a variety of activities, including timber management, vegetation management, and pesticide use. One of the most complex program statements involved the review of National Forest roadless areas. At the broadest level, an environmental analysis of all Forest Service activities is currently being prepared. Called "The Environmental Program for the Future," this study is examining public needs and demands on the National Forests and defining alternatives for accomplishing objectives. It is the most ambitious comprehensive effort that the Forest Service has yet attempted. In conclusion, NEPA has had a major impact on the Forest Service. The agency took a broad and positive view toward implementation of the Act, went far beyond a narrow concern with the Section 102 requirement, and integrated each step in the NEPA process — from initial environmental analysis through preparation of draft environmental statements, involvement of the public, analysis of comments, and preparation of final statements — into the planning and decisionmaking process. This is not to say that all difficulties have been resolved. Legal action is pending on several issues, and the quality of land use plans and impact statements can still be improved. Nonetheless, the overall picture is extremely encouraging in terms of the integration of NEPA into the fabric of the agency's operations. Administrative Developments — 1973-74 On August 1, 1973, CEQ issued new guidelines for the operation of the environmental impact statement process.25 The guidelines (which are reproduced in Appendix D of this report) were discussed in detail in last year's Annual Report. They establish the basic structure and procedures governing the preparation of impact statements. They set forth the required contents of a statement and the responsibilities of parties reviewing and commenting on a draft statement. They also set forth NEPA's policies governing agencies' involvement of the public, and agencies' use of an impact statement in their decisionmaking process. Section 1500.3(a) directs agencies to review their NEPA procedures and revise them as may be necessary in order to conform to the guidelines. During this past year, many agencies engaged in a major effort to revise their procedures for the implementation of NEPA. Table 1 sets forth the status of agencies' NEPA procedures, as of August 1, 1974, as well as citations to those procedures. [5 ELR 50009]
[n2.] These procedures, while issued in proposed from, are currently being followed on an interim basis. While an agency's NEPA procedures are important, they form only the skeleton for the operatoin of the agency's environmental impact statement process. Of greater importance is an understanding by agency staff of the purpose and goals behind NEPA and of methods for making environmental analyses and assessing the signifiocance of the results generated. The past year saw major progress in this direction. Simultaneous with the development of new NEPA procedures, agencies conducted numerous training sessions, workshops, and seminars for their staffs. Over 100 separate meetings were held across the United States, involving a total of several thousand agency personnel. These meetings were aimed at explainting the basic tools and understanding necessary to integrate the spirit of the impact statement process into an agencyu's operations. During this past year, several studies were completed or initiated on selected aspects of the impact statemenmt process. These efforts were directed at agency implementation of the NEPA process, at selected case studies, and at the development of better methodologies for predicting the environmental consequences of different actions. NEPA Process Studies — At the beginning of the year, CEQ commissioned separate in-depth studies of the impact of NEPA on the decisionmaking processes of the Forest Service, the Bureau of Land Management (BLM), and the Department of the Navy.26 These studies emphasized the relationship between the agencies' normal planning, implementation, and control procedures and the environmental impact statement process. Impediments to full implementation of NEPA were investigated. Forest Service procedures were found to comply substantially with both the letter and spirit of NEPA and with the Council's guidelines. As noted earlier, NEPA has been merged into the Forest Service planning system to form a single integrated process. The study concluded that the quality of the land use plans and analysis could still be improved, in particular through collection of better sociological and economic information. BLM has supplemented its planning system at critical points to fulfill NEPA's requirements and is now developing additional changes in the system to better emphasize environmental values. BLM has not generally prepared environmental statements on its management framework plans, believing that statements can be more effectively prepared on specific actions later in its decision process. The study recommended that impact statements should be prepared on these plans. BLM's implementation of NEPA has been highly centralized. The study recommended that authority to decide whether a statement should be prepared and to approve the release of the statement be delegated to the official otherwise responsible for the proposed action. Within the BLM, NEPA has produced increased public participation in the Bureau's planning activities. The study of the Department of the Navy illustrated the importance of the attitudes of senior agency officials. The report identified a widespread concern about the environment at the Navy's intermediate and lower management levels and documented substantial efforts to prevent environmental problems before they arose. The report attributed this to the interest of senior agency officials in carrying out Navy projects in a manner designed to avoid environmental damage. The report noted, however, that the degree of integration of the procedural requirements of NEPA varies from program to to program, in part because of the different time frames available for the preparation of underlying documentation. Taken together, the studies provide concrete information on the efficacy of different approaches which several agencies have taken in [5 ELR 50010] the establishment of their impact statement process. NEPA Case Studies — In addition to these studies of the NEPA process, several case studies of the impact of NEPA on particular projects were completed during the year. A study of the Army Corps of Engineers' proposed Oakley reservoir in southern Illinois was compiled by Roger W. Findley at the University of Illinois.27 A study' of the Corps' New Melones reservoir in California was compiled by John Randolph at Stanford University.28 In addition, CEQ has recently contracted for several case studies on how NEPA influenced the development of specific projects. The major objective in each instance will be to show how NEPA can, in a particular situation, help improve the design of a project. CEQ intends to publish these case studies as they become available. Methodologies for Environmental Analysis — Section 102(2)(B) of NEPA requires that agencies identify and develop methods and procedures which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical values. At the time NEPA was passed, few methodologies existed for making environmental forecasts. That situation is changing. The Environmental Protection Agency has begun to prepare detailed methodologies for analyzing the environmental aspects of different types of projects. During the past year, handbooks on how to analyze a highway project and how to write an impact statement for a sewage treatment plant project were prepared.29 EPA plans during this next year to develop handbooks for water resource projects, nuclear power plants, airports, and urban transportation systems. The Institute for Ecology (TIE), under a grant from the Ford Foundation, is also engaged in developing methodologies for analyzing the environmental effects of different types of projects. Using teams composed primarily of university faculty and graduate students, TIE has prepared detailed reviews of selected impact statements. During the coming year, TIE plans to draw on the expertise gained in these reviews to develop substantive guidelines for writing impact statements for various categories of projects. Although EPA traditionally applied the environmental impact statement process to its program of grants for construction of municipal sewage treatment facilities, there had been substantial uncertainty whether NEPA was meant to apply to the agency's regulatory activities. In enacting the 1972 Amendments to the Federal Water Pollution Control Act, Congress specified that no actions of the Administrator under the Act required impact statements except grants for waste treatment facilities and permits for discharges from new sources.30 In 1973 and 1974, several courts reviewed the application of NEPA's impact statement requirements to actions of the Administrator under the Clean Air Act31 and the Federal Insecticide, Fungicide, and Rodenticide Act.32 In every case, the court concluded that EPA's actions were not subject to the impact statement requirement, primarily on the ground that EPA prepares the "functional equivalent" of an impact statement in the documentation supporting its actions.33 And in June 1974 Congress provided in the Energy Supply and Environmental Coordination Act that no action taken under the Clean Air Act shall be deemed a major Federal action significantly affecting the quality of the human environment within the meaning of NEPA.34 As a result, it now appears that EPA is legally not required to prepare impact statements in connection with its regulatory activities. Nonetheless, in May 1974 EPA announced that it would voluntarily prepare impact statements on a variety of regulatory actions.35 EPA concluded that the objective of NEPA — to build into each agency a careful consideration of all environmental aspects of its proposed actions — could be beneficially applied to many of EPA's regulatory functions. Under this new policy, which became effective October 15, 1974, impact statement will be prepared in connection with such actions as the establishment of national ambient air quality standards, the designation of sites for ocean dumping, and the cancellation of a pesticide registration. Statistics on the Impact Statement Process By June 30, 1974, four and a half years after NEPA was enacted, environmental impact statements had been prepared on 5,430 agency actions. Final impact statemenmts had been completed for 3,344 of these actions. Draft impact statements had been issued for the remaining 2,086 actions. Last year's Annual Report indicated a downward trend in the annual number of impact statements being prepared. The number of new statements filed with CEQ declined from a high of 1,949 in 1971 to 1,371 in 1972 and 1,148 in 1973. However, a projection of the figures for the first 6 months of 1974 indicates a slight increase in the number of statements likely to be filed this year. It is still too early to be certain whether this projection from the submissions in the first half of 1974 represents the beginning of a change in the downward trend of the last 3 years. Figure 1 presents the number of impact statements which have been filed annually with the Council. Figure 2 presents the number of impact statements prepared by each agency from January 1, 1970, to July 1, 1974. Figure 3 presents the number of impact statements by type of project from January 1, 1970, to July 1, 1974. The Department of Transportation continues to file the largest number of statements. At the same time, both in absolute terms and as a proportion of the total number of statements filed by all agencies, DOT statements have decreased each year since 1971. For 1973, DOT statements numbered 432 and comprised 37 percent of all filings. For the first six months of 1974, DOT statements numbered 196 and accounted for 33 percent of all filings. Last year's Annual Report attributed this downward trend to better screening of insignificant actions by the Federal Highway Administration and the Federal Aviation Administration, and to the consolidation of numberous small highway statements into fewer, but broader, statements. These actions appear to be continuing. Even when DOT decides not to prepare a detailed statement, it still prepares a preliminary environmental analysis to support its decision on the proposed action. The Army Corps of Engineers is second in terms of the number of statements annually prepared by a single agency. The Corps filed 243 statements in 1973, as compared with 211 in 1972, and is currently preparing statements at the rate of 396 per year. This increase appears to result primarily from the Corps' decisions to prepare analyses on a large number of projects initiated prior to the enactment of NEPA, and also on a larger proportion of its operation and maintenance activities. Corps of Engineers statements presently comprise 21 percent of all new statement filings. During the last year, several agencies submitted impact statements for the first time. Among them were the Energy Policy Office (now the Federal Energy Administration),36 the Architect of the Capitol,37 [5 ELR 50011] and the Department of Labor.38 Environmental Impact Statements Filed Annually [See Illustration in Original] Environmental Impact Statements Filed Annually, by Agency, to July 1, 1974 [See Illustration in Original] Environmental Impact Statements Filed Annually, by Project Type [See Illustration in Original] Diversity of Impact Statements During 1973, impact statements were prepared for a broad range of actions, particularly in the energy field. The Energy Policy Office filed an impact statement on its priority system for the allocation of low-sulfur petroleum products.39 The Department of the Interior filed impact statements on the sale of oil and gas leases on the outer continental shelf,40 on the leasing of Federal lands for oil shale and geothermal development,41 and on its coal mining plans.42 The statements on coal development are the first of a number to come. Each of them will be examining, for a different part of the country, the physical effects of proposed strip mining, the feasibility of reclamation, the competition between mining and existing uses of the land and water, and the comparative environmental costs of using coal as opposed to other energy sources. During the last year, the Department of the Interior also prepared 28 environmental impact statements related to the Alaska Native Claims Settlement Act.43 The statements analyze the consequences of the incorporation of about 80 million acres of Alaskan lands still [5 ELR 50012] within the unreserved public domain into the National Park, National Forest, National Wildlife Refuge, and National Wild and Scenic Rivers systems. Several statements were prepared during the past year in the international area. One of the most important concerned the U.S. negotiating position at the United Nations Law of the Sea Conference which opened this summer in Caracas.44 While the major thrust of the statement was on modes of developing hard mineral deposits in the deep seabed, the wide-ranging concerns of the Conference in such areas as territoriality, free navigation, and fishing rights were also covered. The State Department also prepared an impact statement on U.S. alternatives to improve the quality of Colorado River water that flows into Mexico.45 Large U.S. diversions, combined with the high salinity of irrigation runoff, reduce the quality of the water that reaches Mexico to a level below that stimpulated by mutual agreement between the two countries. The proposed desalinization plant is discussed in Chapter 5. Impact statements covering state or local projects with major environmental implications also created intense interest this past year. For example, the Department of Transportation in 1973 issued a draft impact statement on the extension of interstate highway I-66 from suburban Virginia into Washington, D.C.46 Of major concern here is the impact of the proposed highway on the metropolitan area. The impact statement analyzed whether mass transit or a highway/mass transit combination could better meet the metropolitan area's transportation needs. The past year also saw a sharp increase in the number of "program statements," covering entire programs within an agency rather than a single action within the program, or the cumulative effects of a number of distinct but interrelated projects. For example, the Department of Agriculture analyzed its overall use of herbicides in various states and regions of the country through program statements,47 the Department of Commerce prepared a program statement on its overall program for the construction of new tankers;48 and the AEC filed a program statement on its development of the liquid metal fast breeder reactor.49 While program statements do not yet form a large proportion of the total number of statements, they offer an unprecedented opportunity to analyze major policy issues associated with the formulation of government programs. CEQ strongly encourages agencies to prepare such statements in the development of new programs and in the review or modification of programs already in operation. Judicial Developments — 1973-74 In a number of significant judicial developments during the past year, the courts elaborated on the rights of citizen groups to be compensated for their expenses in bringing a NEPA lawsuit, on the relationship between NEPA and land use planning, on the extent to which an agency can delegate the preparation of a statement, and on the standards to be applied in assessing the adequacy of an impact statement. Legal Expenses of Citizen Groups in Bringing NEPA Lawsuits American courts have traditionally barred recovery of legal expenses even by successful litigants. Only two narrow exceptions to this rule have generally been recognized. First, legal fees have been awarded in cases in which an opposing party has acted in bad faith, in order to punish the party's obdurate behavior.50 The second exception covers cases in which a suit has conferred benefit on members of a clearly ascertainable class and an award of fees would serve to spread the costs of the litigation among these beneficiaries.51 Recently, a third exception to the general rule has emerged. Several courts concluded that the interests of justice require fee shifting where the plaintiff has acted as a "private attorney general" vindicating an important public interest. In 1974, in Wilderness Society v. Morton,52 the U.S. Court of Appeals for the District of Columbia ordered that the legal expenses of the Wilderness Society, the Environmental Defense Fund, and the Friends of the Earth be paid for their efforts as "private attorneys general" in the Trans-Alaska Pipeline case.53 According to the court, not to award counsel fees in a case involving relatively little injury to single individuals but collectively great harm to important public interests could seriously frustrate the purposes of Congress. Where the law relies on private suits to effectuate Congressional policy in favor of broad public interests, attorney's fees are often necessary to ensure that private litigants will initiate such suits … Substantial benefits to the general public should not depend upon the financial status of the individual volunteering to serve as plaintiff or upon the charity of public minded lawyers.54 The court went on to say that: Our decision today may increase the willingness of skilled lawyers throughout the nation to undertake public interest litigation on behalf of unmonied clients with just, lawful, and important claims. This proposition we of course accept, and count it a happy result of our decision.55 The court observed that although the NEPA issue was resolved by Congress and not through litigation, the plaintiff's efforts in pursuing the issue deserved an award of attorney's fees. "Where litigation serves as a catalyst to effect change and thereby achieves a valuable public service, an award of fees may be appropriate even though the suit never proceeds to a successful conclusion on the merits."56 The court pointed out that the public's interests had been substantially furthered as a result of the litigation. First, the permit conditions for the pipeline had been altered to provide forsubstantial additional protection of the environment. Second, under the new permit the government would receive fair market value for the use of its land rather than allowing the land to be used free, as had been the practice in the past. And third, the pipeline company would now be strictly liable for damages resulting from its use of the right-of-way. According to the court, the lawsuit had resulted in development of a substantially better project, and the plaintiffs were entitled to recover their expenses for having brought this about. The court noted that, technically, only the Interior Department had violated the law. However, the court went on to point out that the Alyeska Pipeline Company had persuaded the government to grant the rights-of-way, had actively participated in the litigation, and "unquestionably was a major and real party at interest in this case."57 Accordingly, the court determined that the government and Alyeska should each bear one-half of the citizen groups' expenses. However, since sovereign immunity bars imposition of attorneys' fees against the United States (unless they are expressly provided for by an Act of Congress), only that portion to be borne by Alyeska could ultimately be assessed. Because of sovereign immunity, that part which would otherwise be borne by the government must be assumed by the citizen groups. In dissenting to the court's opinion, several judges stated that in their view the citizen groups had not conferred any public benefit [5 ELR 50013] by their actions. The judges pointed out that the lower court had ruled against the plaintiffs on the issue of the adequacy of the final impact statement and implied that, at most, they should only be considered potentially eligible for reimbursement for work in connection with the Mineral Leasing Act issue, on which they ultimately prevailed. Maryland-National Capital Park and Planning Commission v. Postal Service This case58 concerned the construction of a bulk mail facility for the U.S. Postal Service near Washington, D.C. The Maryland-National Capital Park and Planning Commission opposed construction of the facility and, in particular, urged that an environmental impact statement be prepared. The Corps of Engineers, as contractor for the U.S. Postal Service, prepared an environmental assessment and, on the basis of this assessment, concluded that no impact statement was required. All parties agreed that construction of the mail facility was a "major Federal action." Disagreement centered on whether the facility would "significantly" affect the environment. The U.S. District Court concluded that the Corps' determination that an impact statement was not required was not unreasonable,59 and the plaintiffs appealed the decision to the U.S. Court of Appeals for the District of Columbia. In rendering its decision, the Court of Appeals developed two major propositions.First, it pointed out that the proposed facility would be inconsistent with the local zoning for the facility site, and that this required an especially careful inquiry by the government into the potential significance of the project's environmental effects. The question of significance takes on a distinctive cast in the context of land-use planning. We think that much may turn on whether the Federal Government conforms to or deviates from local or regional regulations to land use…. When local zoning regulations and procedures are followed in site location decisions by the Federal Government, there is an assurance that that "environmental" effects as flow from the special uses of land — the safety of the structures, cohesiveness of neighborhoods, population density, crime control, and aesthetics — will be no greater than demanded by the residents acting through their elected representatives. There is room for contention, and there may even be a presumption, that such incremental impact on the environment as is attributable to the particular land use proposed by the Federal agency is not "significant" … When, on the other hand, the Federal Government exercises its sovereignty so as to over-ride local zoning protections, NEPA requires more careful scrutiny.60 CEQ, in § 1500.8(a)(2) of its guidelines, has pointed out the need for agencies to carefully inquire into the relationship between their proposed project and land use plans for the affected area. This decision highlights the need to do so, not only in the writing of an impact statement but also in making the threshold decision of whether a project will significantly affect the quality of the environment. The second major pronouncement by the Court of Appeals concerned the procedures to be followed in judicial review of an agency's "negative assessment." The court stated that, in general, three basic questions need to be addressed: First, did the agency take a "hard look" at the problem, as opposed to bald conclusions, unaided by preliminary investigation … Second, did the agency identify the relevant area of environmental concern … Third, as to problems studied and identified, does the agency make a convincing case that the impact is insignificant…61 The court in this instance was unable, on the basis of the information before it, to answer all the questions in favor of the government and thus remanded the case to the District Court for further investigation. The court's opinion makes it clear, however, that an agency must be able to demonstrate to a court, in any case of arguably significant environmental impact, that it has investigated the environmental effects of the proposed action. If an agency has decided not to prepare an impact statement, it must further be able to document, with analysis "as opposed to bald conclusions," that the effects of the proposed action will clearly not be significant. Agency Delegation of the Preparation of the Imact Statement During the last few years, legal challenges have been made to a number of impact statements because they were written by a private party or a state agency rather than the cognizant Federal agency. Plaintiffs have argued that NEPA requires a Federal agency to prepare its own impact statement and that this responsibility may not be delegated. According to plaintiffs, the delegation of the preparation of a statement to an interested outside party risks the production of a biased analysis rather than an objective independent study and thus contravenes the policies of NEPA. Courts have so far responded to these challenges with somewhat conflicting decisions. In Greene County Planning Board v. Federal Power Commission,62 the U.S. Court of Appeals for the Second Circuit held that the FPC's use, in connection with public hearings on an applicant's proposal, of the applicant's environmental analysis rather than an impact statement independently prepared by its own staff, violated the policies of NEPA. According to the court, The Federal Power Commission had abdicated a significant part of its responsibility by substituting the statement of [the applicant] for its own. The Commission appears to be content to collate the comments of other federal agencies, its own staff and the intervenors and once again to act as an umpire. The danger of this procedure, and one obvious shortcoming, is the potential, if not the likelihood, that the applicant's statement will be based upon self-serving assumptions.63 The court went on to point out that intervenors generally have limited resources, both in terms of money and technical expertise, and thus may not be able to provide an effective analysis of environmental factors. It was in part for this reason that Congress has compelled agencies to seek the aid of all available expertise and formulate their own position early in the review process.64 (emphasis added) In Conservation Society v. Secretary,65 the court reached a similar conclusion in holding that a highway impact statement prepared by a state highway agency and then reviewed by the Federal Highway Administration did not satisfy NEPA. According to the decision, NEPA requires that a statement be prepared by the responsible Federal agency, not the recipient of the proposed Federal aid. Several other cases, however, have reached somewhat contrary conclusions. In Life of the Land v. Brinegar,66 the U.S. Court of Appeals for the Ninth Circuit concluded that NEPA was satisfied by the Federal Aviation Administration's active participation in, and review of, an impact statement covering a proposed runway project, even though the statement was prepared by a private consulting firm which had a financial interest in the approval of the project. In Citizens Environmental Council v. Volpe,67 the U.S. Court of Appeals for the Tenth Circuit held that the Department of Transportation's review and adoption of a highway impact statement that was prepared by the state highway agency was consistent with the goals of NEPA. Similar conclusions were reached in Movement Against Destruction v. Volpe,68 Citizens v. Brinegar,69 Iowa Citizens for Environmental Quality v. Volpe,70 National Forest Preservation [5 ELR 50014] Group v. Butz,71 and Northside Tenants' Rights Coalition v. Volpe.72 At the present time, then, there appears to be some disagreement within the judicial system on the extent to which the preparation of an impact statement may be delegated to an interested private party or state agency. No court has yet held that a Federal agency may fully delegate the preparation of a statement to such an outside group. At least some review of the statement by the Federal agency appears necessary, as does assumption of responsibility by the Federal agency for the adequacy of the environmental analysis contained in the statement. At the same time, the courts appear to differ on the extent to which a Federal agency must engage in an independent environmental analysis. CEQ has traditionally not objected to delegation of the preparation of a statement in those instances where the Federal agency has maintained responsibility for the objectivity and adequacy of the statement.73 Efficient use of resources suggests that the party closest to the development of a project should engage in at least its preliminary environmental analysis. Where this party is a state or local government, the responsibility of the Federal agency is to ensure that environmental considerations are meaningfully integrated into the project's design. This requires at least some review of the project and the impact statement by the agency. But it does not require an agency in every case to engage in an independent preparation of the impact statement. At the present time (August 1974) Congress is considering delegation of the implementation of NEPA in connection with the Housing Act of 1974. This Act will provide for block grants to local units of government. In many cases, the local units of government will be able to use the grants without prior approval by the Department of Housing and Urban Development of the specific projects or programs to be financed. In such cases, the local unit of government will be required, under the Housing Act of 1974, to prepare an impact statement that would otherwise be required of HUD by NEPA. HUD will retain responsibility to assure that procedures providing for full review of environmental factors are faithfully followed. In general, HUD's involvement in the preparation of an impact statement under the Housing Act of 1974 will vary directly with the degree of its participation in the design or approval of the projects and programs which are funded. Where the party closest to the project is a private applicant, somewhat greater involvement by the Federal agency is required. Private projects frequently do not reflect the public's concern for the preservation and enhancement of the environment to the same extent as do state and local government projects. CEQ has thus not supported the practice of allowing private applicants for Federal permits to prepare the entire impact statement, which is in turn circulated by the agency as its own. Adequacy of an Impact Statement In a major court decision, National Helium v. Morton,74 the U.S. Court of Appeals for the Tenth Circuit ruled on the general test to be applied by a court in determining the adequacy of an agency's impact statement. The court pointed out that one must distinguish between judicial review of an agency's final decision for compliance with the Administrative Procedures Act75 and judicial review of the agency's environmental impact statement for compliance with NEPA. In carrying out this latter inquiry, the court held that the "rule of reason" is the appropriate standard. According to the court, [O]ur view is that the review of the FES [final environmental impact statement] is limited to the following: (1) Whether the FES discusses all of the five procedural requirements of NEPA. (2) Whether the environmental impact statement constitutes an objective good faith compliance with the demands of NEPA. (3) Whether the statement contains a reasonable discussion of the subject matter involved in the five required areas.76 After reviewing the impact statement prepared by the Department of the Interior, the court concluded that the statement was "fully acceptable." The court pointed out that NEPA should not be viewed as necessitating that the completion of an impact statement be unreasonably or interminably delayed in order to include all potential comments or the results of works in progress which might shed some additional light on the subject of the impact statement. Such a result would inordinately delay or prevent any decision in environmental cases. The court should look for adequacy and completeness in an impact statement, not perfection.77 NEPA has had unique and important effects on the international community. That this domestic law should have such an impact testifies to its particularly broad administrative scope and to its conceptual strength. U.S. agencies have directly contributed to the Act's international importance and influence through their own NEPA processes. At the same time a number of other countries have recognized that adoption of the impact statement mechanism can fill critical needs for forecasting environmental effects. Use of NEPA in International Affairs Impact statements of U.S. agencies can promote environmental quality in the international community in a variety of ways. First, because Section 102(2)(C) of NEPA applies to all U.S. agencies, several have prepared guidelines covering at least some of their activities abroad. This has been done by the State Department78 and the National Science Foundation.79 A second use for U.S. impact statements involves their preparation in draft prior to the conclusion of international agreements affecting the human environment. Thus, impact statements have been prepared for the Convention on the Prevention of Marine Pollution by Dumping Wastes and Other Matters,80 the Convention on International Trade in Endangered Species of Wild Fauna and Flora,81 the 1973 Convention on the Prevention of Pollution from Ships,82 and for the draft agreement which may emerge from the Law of the Sea Conference. Such statements give environmental and other groups the opportunity to assess the effects of, and to comment on, proposed international agreements before they are actually ratified. Finally, impact statements have international significance when they describe the international environmental effects of an action occurring within the United States. Impact statements have been filed for a number of internationally important activities, such as the Colorado River International Salinity Control Project, affecting Mexico, and the Bureau of Reclamation's Garrison Diversion project, in North Dakota, discussed in Chapter 5, which may cause water pollution problems in Canada. Such statements have been made available to other countries, as, for example, when the AEC's 1971 impact statement on the nuclear explosion in Amchitka, Alaska, was provided to the Japanese and Canadian governments. More formal procedures might be employed in the future whereby affected [5 ELR 50015] countries, especially neighboring nations, would be asked to submit comments that would be circulated and integrated into the NEPA process. Nongovernmental groups in other countries, with demonstrated interests, might also be asked to participate in the impact statement comment process. In each of these ways, the impact statement mechanism permits and encourages U.S. agencies to take a long-range international view of the environmental effects of their proposed actions. Influence of NEPA on Environmental Policies Abroad More subtle but perhaps more profound international effects of NEPA are evident from the attention being given to impact statements by other countries. This interest is remarkable because NEPA was designed to correct deficiencies in unique U.S. administrative procedures. However, because the Act in fact responded to problems of gaps in environmental forecasting and of closed agency decisionmaking found in many countries, its mechanisms have become widely studied outside the United States. Impact statements have been adopted or planned in Australia at both the state and the federal level. Experience there has focused on such states as Tasmania, where impact studies were required in 1973 and a public review process was established under the Director of Environmental Control.83 Other Australian states have adopted similar procedures. The Australian Federal Government has established an interim policy on impact statements for Federal projects, pending the enactment of new legislation. In Canada, federal environmental impact statement requirements were established by Environment Canada in April 1974.84 Israel also recently required its Environmental Protection Service to establish an impact statement procedure. In Europe no country has yet adopted the impact statement mechanism, although it has evoked considerable interest there. The West German Government, for example, has begun internal discussions on the ways in which impact statement processes might be adapted to its particular institutional and legal system. Other countries and the Organization for Economic Cooperation and Development have revealed similar interests. Impact statements have been less attractive to many European countries whose existing land use licensing or permit systems already provide extensive control over environmental abuse. Clearly the effect of the impact statement mechanism abroad will require careful consideration before it can complement the existing problems and procedures of other countries. Nevertheless, as a method for determining in advance the impacts of various alternative proposals and as a way in which to open the governmental decisionmaking process to new, outside scrutiny, it has already demonstrated its broad international appeal. Over the next several years there will be a great many opportunities within the international community to foster the increased understanding and usefulness of the impact statement process. State Environmental Impact Statement Requirements Since 1970, 21 states and the Commonwealth of Puerto Rico have adopted environmental impact statement requirements similar to those set forth in NEPA.85 Thirteen of the 21 states and the Commonwealth of Puerto Rico have legislatively adopted a comprehensive EIS requirement: California, Connecticut, Hawaii, Indiana, Maryland, Massachusetts, Minnesota, Montana, North Carolina, South Dakota, Virginia, Washington, and Wisconsin.86 Three states — Michigan, New Jersey, and Texas — have administratively promulgated a comprehensive EIS requirement.87 In addition, five states require preparation of impact statements on specific classes of projects.88 Arizona requires that impact statements be prepared for proposed water-oriented projects.89 Georgia requires an environmental analysis for certain toll road projects.90 In Nevada, there is a special provision relating to utility power plant siting.91 Nebraska's Department of Roads prepares impact statements on State-funded highway projects.92 Delaware requires the preparation of statements in connection with the issuance of permits under its Coastal Zone Act and its Wetlands Law.93 A number of American cities have also initiated environmental impact statement programs. New York City's Environmental Protection Administration, operating under an executive order,94 may require impact statements on designated city activities. In Bowie, Maryland, a city ordinance95 highlights the utility of environmental impact statements in local government decisionmaking. The Appendix to this chapter lists the states and local governments which, as of August 1, 1974, have adopted an impact statement [5 ELR 50016] process. For each state or local government, the Appendix contains citations to the legal authority for the process; any guidelines which have been issued as of August 1; and the name, address, and phone number of individuals who may be contacted for further information. At least 15 other states are now considering the establishment of impact statement requirements. To aid states in developing such legislation, the Council of State Governments approved a suggested State Environmental Policy Act.96 One state, New Mexico, recently repealed its environmental impact statement process, as discussed below. Although the various state programs differ from NEPA in several respects, most have used the Federal law as their model. To date, implementation of the state programs has moved slowly, and the visible benefits are still limited. Considering the very limited funds and staff allocated to implement the requirements, most state agencies seem to be putting forth a good effort. In the Council's view the state impact statement process has great potential. Statements prepared by state agencies and local governments usually cover projects that are not within the reach of the Federal impact statement process. In addition, statements prepared by state agencies and local governments may prove to be more responsive to local needs than the Federal statements have been. Integration of a state EIS process into a state's decisionmaking will take some time. Apart from the problem of resource constraints, many states have no tradition of providing detailed documentation and analysis to assist decisionmaking. Hence, the impact statement process has created uncertainties on the state level which do not exist at the Federal level. One major question with which states have been grappling is how the EIS should be used: Is it to be a policy tool or solely a means to document the impact of an individual project? This issue can be resolved, but where it remains unsolved, the integration of the EIS process into many state programs has been delayed. Most of the state acts and executive orders closely follow NEPA with respect to the required items to be discussed in the impact statement.Indeed, Puerto Rico, Indiana, and Washington follow exactly NEPA's list of items to be included in the EIS. Some states have added new elements which are likely to increase the utility of the document; the most significant of these are mitigation measures, growth-inducing impacts, and economic impacts. Massachusetts chose to narrow the scope of the impacts to be analyzed to those relating to natural environmental resources.97 Michigan, on the other hand, refers specifically to effects on "human life."98 Texas and Wisconsin explicitly require that the "beneficial" aspects of a proposal be discussed as well as the adverse impacts.99 The Minnesota law contains two innovative departures from the Federal model. The EIS must include an assessment of the "impact on state government of any Federal controls associated with the proposed actions" and a discussion of the "multistate responsibilities associated with the proposed actions."100 California's act was the first to require that the EIS include a discussion of the mitigation measures proposed to minimize the impact of a project.101 Similar clauses are included in the Maryland, Massachusetts, North Carolina, and Virginia acts and in the suggested State Environmental Policy Act approved by the Council of State Governments.102 NEPA itself does not specifically require this, but the NEPA Guidelines do discuss mitigation under the category of alternatives to the proposed action.103 The California law and the model act require an analysis of the "growth-inducing impact of the proposed action."104 Montana recently revised its guidelines to require consideration of growth-inducing impacts and the use of energy.105 A major addition to the Federal model is the inclusion of the economic impact of proposed actions. Connecticut, Michigan, Minnesota, Montana, and Wisconsin have adopted this requirement.106 Some local jurisdiction in California require an economic analysis in their impact statements. The Michigan order calls for, "[w]here appropriate, a discussion of the economic gains and losses including the effect on employment, income levels, property taxes, and the cost of alternatives to the proposed action."107 The Federal guidelines require only that an impact statement deal with "changed patterns of social and economic activities" in a discussion of the secondary consequences of a proposal.108 Applicability to State, Local, and Private Projects All of the state laws require impact statements for major actions or projects undertaken directly by state agencies. The states differ greatly, however, in their application of the impact statement process to local government actions and to private activities which require a governmental permit. Because some of the most significant controls over private actions, particularly those relating to the use of land, are administered by counties, cities, towns, and special purpose units of local government, the effectiveness of a state's impact statement is greatly dependent on whether it applies to local governments and to private activities. NEPA provides for impact statements to be prepared on actions "involving a Federal lease, permit, license certificate or other entitlements."109 This provision has been interpreted to mean that an impact statement may be needed for what is basically a private action, if a Federal permit is required, as in the Trans-Alaska Pipeline case. Most states utilize similar wording in corresponding portions of their laws, but the interpretations have not always been the same. Thus far California is the only state which has been preparing a significant number of EIS's on private actions and actions of local governments, accounting in large part for the approximately 6,000 impact statements prepared each year in the state. The California Supreme Court ruled in September 1972, in Friends of Mammoth v. Board of Supervisors of Mono County,110 that an EIS must be prepared before any governmental entity — a state agency or regional or local body — approves a private project which could have a significant effect on the environment. The court based its decision in large part on the ground that the Federal guidelines would require an impact statement under similar circumstances. The decision caused some confusion as to the status of private projects already in progress, and in December 1972, the California law was amended to provide a transition period for the implementation of the court's decision.111 A retroactive exemption was granted to some projects already built or under way, and a 120-day moratorium was instituted on the prospective implementation of the impact statement requirement in several cases.112 Prior to 1974, the Massachusetts Act specified that it applied only to state agencies, departments, boards, commissions, or authorities of [5 ELR 50017] the Commonwealth or any authority of any political subdivisions of the state.113 In 1974, however, the Act was amended so that it now extends, in certain instances, to "any work, project or activity of any private person, firm or corporation which may cause damage to the environment.114 The State's guidelines provide that an impact report must be prepared for any governmental activity "which involves the issuance of a lease, permit, license, certificate, or any entitlement for use by an agency."115 Washington's law applies to all branches of government of the State, "including State agencies, municipal and public corporations, and counties,"116 and the State's guidelines imply that private activities are subject to the EIS requirement. The Puerto Rico Act reads almost exactly the same. Michigan, Montana, and Wisconsin require that an impact statement be prepared on private activities for which a State permit is required.117 All of the states which apply the impact statement requirement to actions of local governments also specify that a statement must be prepared on private activities subject to approval by a public agency. The North Carolina law authorizes, but does not require, local governments to require an EIS for certain private projects,118 but this provision has had almost no use. Only one local government has to date adopted such a requirement;119 two others are currently attempting to establish this procedure. Some of the state laws and executive orders are not specific about the extent to which the EIS requirements apply to local governments or private projects. The Maryland law applies to state agencies "and any such bodies created by the state."120 The Minnesota law applies to major private actions "of more than local significance."121 The laws of some states which do not specifically extend the EIS requirement to local agencies do say that an impact statement must be prepared for governmental projects paid for in whole or in part by the state, recognizing that many local projects are built with state assistance. Other states specifically do not apply the procedure to private actions. The environmental policy adopted in Texas applies only to the 16 agencies which comprise the Interagency Council for Natural Resources and the Environment.122 The Virginia law applies only to state construction projects proposed by the executive branch of the state which cost over $100,000; it specifically excludes highway and road projects.123 Indiana's Environmental Policy Act specifically provides that it shall not be construed "to require an environmental impact statement for the issuance of a license or permit by any agency of the state."124 All states with an impact statement requirement have designated an agency to coordinate the program, or at least to develop detailed guidelines. Although there are some notable exceptions, the agency designated is usually an advisory body with no specific authority to ensure that other agencies (1) prepare impact statements on projects; (2) prepare the statements early enough in the planning process to be useful; (3) review impact statements; or (4) involve the public in preparation and review of projects. The agency also usually has no authority to affect the final disposition of a project. In Maryland and Washington the law does not provide for circulation of statements or any explicit provision for their review. In California, State and local agencies are required to file "notices of completion" of an impact statement with the Secretary of Resources,125 although there are no sanctions for failing to file these documents. The date of filing starts the statute of limitations period. The law specifically provides that failure to file notice with the Resources Agency "shall not affect the validity of the project." The law does not say what should be done with the notices of completion, and the Resources Agency currently takes no action other than to file them as a permanent record. There is no provision in California for administrative rejection of an inadequate EIS. As with NEPA, remedies for violation of the Act lie with the courts. Under the Hawaii Executive Order, the Governor "approves" the impact statement.126 In Massachusetts, the Secretary of Environmental Affairs issues a written statement indicating whether or not the environmental reports are adequate.127 In North Carolina, the Council on State Rules and Policies has the option of accepting the statement, approving it contingent upon changes specified by the Council, or submitting it to the Governor for final disposition.128 In Connecticut and Michigan, recommendations can be sent to the Governor for action on a project.129 In Virginia, the State Comptroller is directed not to release funds for a project if it does not meet environmental approval.130 The Minnesota Environmental Quality Council (EQC) has the authority to require that a statement be prepared if it receives a petition with 500 or more signatures and material evidence of the need for an environmental review.131 The EQC can also require revisions of inadequate impact statements and delay implementation of an action. It can "reverse or modify the decisions or proposals where it finds, upon notice and hearing that the action or project is inconsistent" with the broad statement of environmental policies and standards set forth in the law.132 Minnesota is the only state with such explicit powers to affect the disposition of projects. Its law is now being implemented, and the extent to which the EQC will exercise this power remains to be seen. Most states do not have accurate statistics on the extent to which the process is operating. Except for California and Washington, it appears that relatively few impact statements are being prepared. California estimates that 6,000 statements per year are being issued, and Washington estimates 200 statements per year. In the other states, the range is between 10 and 50 statements a year, in part because few statements are being required for private actions. In some states, no impact statements have been prepared because their laws have not yet been implemented. The burden of enforcing EIS requirements often falls on citizen groups. Like NEPA, most state laws and executive orders require that copies of impact statements be made available to the public. Several state laws do not make reference to the public at all. How citizens are in practice to be included in the EIS process is left to the state guidelines, which are often not specific. California's guidelines provide that agencies should make provisions in their procedures for wide public involvement.133 Michigan's [5 ELR 50018] regulations call for "maximum use of public involvement procedures and public hearings."134 North Carolina specifies that agencies should consult with the public "if deemed appropriate."135 Puerto Rico's guidelines state that an issuing agency may proceed with itsaction only after time has been allowed for public response to the final EIS. California, North Carolina, and Virginia periodically issue lists of impact statements that have been prepared during the preceding month. Wisconsin's law calls for notice of a hearing on a statement to be published in a newspaper in the affected area, and hearings are held on all impact statements.136 An attempt is made to involve the public early in the process by having environmental groups assist in preparing the environmental assessments. The Massachusetts guidelines direct agencies to give notice of a draft statement in a newspaper in the affected area and in a statewide paper.137 Massachusetts also uses the University of Massachusetts and the Institute for Man and His Environment to assist the State in the review of impacts statements. Minnesota requires in its regulations that public hearings be held on all draft impact statements. The State also has an early notice system to notify the public of pending State actions.138 In general, enforcement of the state impact statement process and involvement of the public has so far been spotty. Until the process is applied to a broad range of activities, and a number of statements are prepared and circulated to the public, experience at the Federal level indicates that the process is unlikely to have a substantial effect on individual projects or agency decisionmaking. Because California's Environmental Quality Act (CEQA) has had the broadest effect of any of the state "little NEPA's," it is useful to look at its implementation more closely. It has become one of the most important tools for land use control in California, mainly because of the court ruling that the law applies to private as well as public projects. Although the Act defines the environmental impact report (EIR) as an "informational document," CEQA has in actuality been a flexible device. Some California counties have used it as a regulatory measure, to test submitted plans after the fact. In other counties it has been used as a planning tool. Various alternative management approaches have been taken by the counties and the state agencies. On the state level, most draft EIR's are prepared by the individual agencies. On the local level, draft EIR's have been prepared either by the municipality or a consultant hired by it. The amendments in 1972 ended the practice whereby statements had been prepared by consultants hired by the developer. The draft EIR which is sent out for public review "must reflect the judgment of the lead agency."139 The impact report requirement seems to have been so widely applied to private activities that financial institutions in some counties have been requiring an environmental analysis as part of the preliminary feasibility appraisal of development projects proposed for financing. The very presence of the impact report process has had an effect on the mode of developer operation. For example, the Irvine Company, owners of the giant Irvine Ranch in Orange County, prepared an EIR on a completed grading project immediately after the Friends of Mammoth decision was handed down. The EIR showed that substantial adverse impacts had resulted that could have been mitigated or avoided. At the same time, the Irvine Company prepared an EIR on a community plan in another part of the ranch, but this one was prepared in conjunction with the planning of the project. A number of significant improvements in the plan resulted before the plan and the EIR were submitted for agency review. As a result of these experiences, the Irvine Company decided to incorporate environmental analysis into its in-house planning process. The City of Irvine, an incorporated area entirely enclosed within the boundaries of the Irvine Ranch, hired a consultant to review the draft EIR and to prepare the final statement. The City has recently decided that in the future it will also undertake responsibility for preparation of the draft EIR. Overall management of CEQA has been hindered to date by the lack of a State-level central staff with full-time responsibility for monitoring and enforcing compliance with the law. The regulations and procedures adopted by individual State agencies and local governments under CEQA are not currently reviewed, and some agencies have not yet adopted formal regulations for their EIR's. It also appears that not all of the EIR's are being filed with the Resources Agency, and comments on the EIR's are not always being obtained from agencies having relevant expertise. So far, almost no additional funds or positions have been allocated to State agencies for their EIR process. However, at the local level, staff have been added, and the law is being used to bring about beneficial changes in projects and policies. There has been one fatality among the state impact statement requirements. In 1971, New Mexico enacted its Environmental Quality Control Law, requiring an environmental impact statement to be included in "every recommendation or report on proposals for legislation and other state actions." The law created a Council on Environmental Quality but did not give it specific responsibility for the EIS process. Little attention was paid to the Act until a court case in November 1972. The court ruled in City of Roswell v. New Mexico Water Quality Commission140 that the Commission's regulations were adopted without compliance with the New Mexico Environmental Quality Act and were therefore void, since the Act applied to all State agencies, including those agencies that regulate the environment. Great confusion and concern ensued. As a result, the legislature in 1973 placed a 1-year moratorium on the impact statement requirement until June 1, 1974. It also directed the Council to make recommendations to the Governor as to whether the law should be retained, and to prepare a new environmental policy act for the 1974 legislature if deemed necessary. In November 1973, the Council recommended that impact statements should be required and developed a compromise bill which would in certain cases exempt some agencies from the EIS requirement. The Governor did not endorse this compromise bill in his message to the legislature. This was interpreted as an invitation for alternative bills to be introduced. Four more bills were soon introduced in the state senate, including a bill which was a repealer of the Environmental Quality Act. Another repealer bill was subsequently introduced, passed by both the House and the Senate, and signed by the Governor in February 1974. Thus, New Mexico's impact statement process was dissolved before it was ever actually implemented.141 To date, implementation of the state impact statement requirements has been slow, and the benefits derived are not yet substantial. Nevertheless, changes in individual projects, changes in agency thinking or policies, changes in developers' modes of operation, and increased public participation are evident in each state. State agencies, operating so far without sufficient funds or staff, are trying to carry out the mandate of the law or executive order in the least disruptive manner. To enable the process to function smoothly, questions of its application to private activities and how it will be enforced will have to be resolved. Overall, the impact statement requirement has great potential to help shape local projects so that they are in fact responsive to the environmental problems and concerns of the people they most directly affect. What are some of the likely developments over the next few years [5 ELR 50019] in environmental analysis in governmental decisionmaking? What major changes are in progress? What are the basic forces and trends, and where do they seem to be leading? The purpose of this concluding section is to speculate on the answers to these questions. Quality of Environmental Analysis Looking ahead at the next few years, the clearest and most probable major advance is likely to be in the quality of environmental analysis contained in impact statements. At the time NEPA was enacted, there was little understanding of how to do environmental forecasting. There had been no substantial demand or major sponsors for this type of knowledge, and there were few people with a background in environmental forecasting. Inevitably, therefore, during NEPA's first years, some impact statements were of poor quality and this in turn reduced the benefits of the impact statement process. This situation is rapidly changing. Substantial effort has recently been channeled into developing an understanding of how to forecast the major environmental effects of government activities. Federal agencies, universities, industry, consulting firms, environmental groups, and others are working out methodologies for carrying out environmental analysis. For example, EPA and the Institute of Ecology are developing substantive frameworks for the environmental analysis of certain types of governmental projects, such as highways and sewage treatment plants. The U.S. Geological Survey is studying the interrelationships between generic types of activities (such as construction) and their environmental effects. The Environmental Law Institute and the International Biological Program of the National Science Foundation are focusing on types of ecological systems, such as floodplains and coastal zones, in an attempt to find methodologies for forecasting the impact of man's activities on these environments. In addition to these long-term investigations into improving the quality of environmental analysis, a number of groups are working on methodologies and techniques for improving the quality of analysis in the short term. For example, CEQ, in cooperation with EPA, NSF, and the AEC, this year developed the MERES model, a tool for projecting the nature and quantity of air pollutants, water pollutants, solid waste, and land disruption associated with different forms of energy production. This model (which is discussed in more detail in Chapters 3 and 6) should help substantially in the quantification of the environmental effects of energy projects. Also this year, virtually all Federal agencies substantially involved in the field of energy — FEA, AEC, FPC, Interior, EPA, and CEQ — are jointly sponsoring a contract to develop a reference document containing the latest information on the environmental effects of every type of energy system. This document will be used in the development of impact statements for comparing a proposed action with the alternatives available. These efforts and others like them will result in increased ability to prepare useful and accurate environmental forecasts. While the pace at which these new tools will be adopted is unclear, the amount of resources annually expended in writing impact statements and the large increase in their usefulness that can be realized by developing substantive techniques and basic data required for their preparation, seems to assure further progress in improving the quality of impact statements. Scope of Environmental Analysis Impact statements usually analyze the initial or primary effects of a project, but they very often ignore the secondary or induced effects. A new highway located in a rural area may directly cause increased air pollution as a primary effect. But the highway may also induce residential and industrial growth, which may in turn create substantial pressures on available water supplies, sewage treatment facilities, and so forth. For many projects, these secondary or induced effects may be more significant than the project's primary effects. It has taken several years to recognize this shortcoming in the analysis contained in many impact statements. The problem now is to develop better methodologies for predicting secondary impacts. During this past year CEQ sponsored studies which investigated the secondary environmental effects likely to result from the establishment of deepwater ports and from the drilling for oil and gas on the outer continental shelf. These studies looked at the onshore development, such as the construction of oil refineries and petrochemical complexes, which were likely to result from offshore activities and sketched out the environmental effects of the onshore development. CEQ is also sponsoring, in cooperation with EPA and HUD, an analysis of the secondary effects of public infrastructure projects, such as highways and sewage treatment plants. The purpose of this study is to help develop a framework for predicting what patterns of land development may result from such infrastructure projects and what the environmental effects of the different land development patterns may be. While the analysis of secondary effects is often difficult than defining the first-order physical effects, it is also indispensable. If impact statements are to be useful, they must address the major environmental problems likely to be created by a project. Statements that do not address themselves to these major problems are increasingly likely to be viewed as inadequate. As experience is gained in defining and understanding these secondary effects, new methodologies are likely to develop for forecasting them, and the usefulness of impact statements will increase. Timing of the Preparation of Impact Statements Compliance with the letter of NEPA (rather than its spirit) requires an agency, at a single point in the development of a project, to prepare an environmental analysis. But having the analysis available at a late date is not very helpful to the planning of a project. Rather, an environmental analysis needs to be prepared as a rough approximation during the initial planning of a project and then gradually refined as the planning of the project proceeds and as alternatives are identified, analyzed, and perhaps discarded. In this way, the environmental analysis at each stage in the planning process is appropriate to the decisions to be made at that stage. The project can be scrapped if its environmental costs appear to be too great, without wasting significant resources. Alternatively, the project can be modified in ways which achieve the objective without entailing unacceptable and/or avoidable environmental costs. This procedure is analagous to the way in which the economic analysis of a project is currently made. Planning begins with a rough estimate of the economic costs and benefits. This is gradually refined as the detailed planning of the project progresses. If the economics of the project appear at any point to be highly unfavorable, the project is generally modified or abandoned, and there is no waste of substantial amounts of money or time because sponsors were unaware of fundamental difficulties with the project. Consideration of environmental factors needs to proceed in much the same way as consideration of economic factors. If environmental analysis is approached in this way, the NEPA-required impact statement emerges in the normal course of events. No formal decision on whether to prepare an impact statement is then required, and the requirement for the statement does not bring about a jolt in an agency's operations. And the crucial goal of NEPA — consideration of the environment in the planning of a project — is accomplished. As experience demonstrates the benefits which environmental analysis can bring to the design of a project, the Council expects this alternative approach will increasingly replace the current one-shot impact statement method. In the future, it seems quite possible that the size of impact statements will eventually decrease. As the relevance of different types of information becomes apparent, the current approach of some agencies simply to catalog an enormous variety of facts should slowly begin to change. Many impact statements now resemble encyclopedias. They discuss the project's setting in overly elaborate detail and contain lengthy descriptions of all species of plant and animal life in the affected area. Frequently, this reflects a lack of understanding of what is important and what is not. As the crucial environmental questions start to come into focus, it should become increasingly clear that much of this verbiage can be dispensed with, [5 ELR 50020] thus helping to reduce the size of many of the statements. CEQ has encouraged agencies to streamline their impact statements by focusing most of their efforts on a discussion of the environmental effects of the proposal and its alternatives. Within this area of focus, agencies should further concentrate on the most important findings or conclusions in their analysis. The purpose of the impact statement process is to help develop an environmentally sound project; it is not to develop a lengthy document which may obscure the major issues. Courts appear to be increasingly engaging in careful reviews of the legal adequacy of a statement and may be expected to reject statements which miss raising, and attempting to resolve, these major issues. Over the long term, as the level of knowledge of how to do impact statements increases, the cost of preparing them should begin to decrease. It may take several years for environmental analysis to be reduced to a routine type of inquiry; some may argue that it could take a decade or two. But the efforts to improve the impact statement process point in this direction, and it seems likely that over the long term there will be a decrease in the cost of preparing statements. The Council has strongly encouraged agencies to prepare program statements. Frequently, basic policy issues in the operation of a program can be addressed only in an analysis which covers the whole program; at the project level, it is often not feasible to review these basic questions. In addition, preparation of a program statement may allow an agency to dispense with the preparation of impact statements on individual projects, provided that impacts at the site are not substantial. Even if such impact statements cannot be dispensed with, however, they can often be reduced in size if the program statement already covers many of the impacts.Thus, preparing program statements may help to increase the efficiency of the NEPA process. As the transition to program statements advances, the Council anticipates that the size and cost — and possibly even the number — of impact statements will eventually be reduced. NEPA is alive and well. It has passed through a transition period, during which agencies have become aware of the Act's widespread requirements, and the basic structure of the environmental impact statement process has been firmly established. NEPA has emerged as an integral and essential part of all Federal agencies' activities. The foresight of Congress in passing NEPA has been widely recognized by state and local governments and foreign countries. Twenty-one states and the Commonwealth of Puerto Rico have so far adopted an impact statement process patterned after NEPA, as have a number of local governments and foreign countries. The benefit of such a process is now well proven. The basic challenge over the next few years is to improve the quality of environmental analysis. While the statements written today are generally much more comprehensive and detailed than those written a few years ago, there is still room for improvement. CEQ and others are devoting a major part of their resources to this endeavor, and encouraging signs already exist. Overall, NEPA promises to become a major landmark in the development and administration of Federal Government programs. States With Environmental Impact Statement Requirements, August 1, 1974 States with Comprehensive Statutory Requirements Statutory Source: California Environmental Quality Act of 1970, Cal. Pub. Res Code §§ 21000-21174 (Supp. 1972), as amended by Ch. 56, Statutes of 1974 (March 4, 1974). Guidelines: 14 Cal. Admin. Code Ch. 3, Guidelines for Implementation of the California Environmental Quality Act of 1970 (Register 73, No. 50 — 12-15-73), as amended by order of the Secretary for Resources, March 22, 1974. Guidelines are prepared by the Resources Agency of California. State Contact *: Norman E. Hill, Special Assistant to the Secretary for Resources, The Resources Agency, 1414 Ninth St., Sacramento, California 95815 (Phone: 916-445-9134). * "State Contact" here refers to persons who have working knowledge of the state's environmental impact statement process. Statutory Source: Connecticut Environmental Policy Act of 1973, Pub. Act 73-562 (approved June 22, 1973). Conn. Gen. Stat. Ann. Ch. 439, § 22a-1 et seq. (Cum. Supp. 1974-1975) (effective February 1, 1975). (Note: Currently in effect is Connecticut Executive Order No. 16, issued by the Governor on October 14, 1972.) Guidelines: New guidelines are being prepared by the Department of Environmental Protection. Currently in effect: "Draft Guidelines for the Implementation of Executive Order No. 16," transmitted to state agencies under Memorandum from the Governor, dated December 13, 1972. State Contact: Mary Ann Massey, Assistant Director of Planning and Research, Department of Environmental Protection, State Office Building, Hartford, Connecticut 06115 (Phone: 203-566-4256). Statutory Source: Act 246, Sess. Laws of Hawaii (approved June 4, 1974), Hawaii Rev. Stat. Ch. 334 (1974). [Note: The law has not yet become fully effective. As of August 1, 1974, Hawaii was still operating under its corresponding Executive Order, Hawaii Executive Order of August 23, 1971.] Guidelines: New rules and regulations are being prepared by the Hawaii Environmental Quality Commission, and are scheduled to be completed by the end of 1974. State Contact: Dr. Albert Tom, Chairman, Environmental Quality Commission, 550 Halekauwila St., Honolulu, Hawaii 96813 or Richard E. Marland, Director, Office of Environmental Quality Control, Office of the Governor, 550 Halekauwila St., Room 301, Honolulu, Hawaii 96813 (Phone: 808-548-6915). Statutory Source: IC 1971, 13-1-10, added by Pub. L. 98, 1972, Ind. Stat. Ann. § 35-5301 et seq. (Supp. 1971). Guidelines: Official guidelines have not been implemented. Draft guidelines have been prepared by the Environmental Management Board. State Contact: Ralph Pickard, Technical Secretary, Environmental Management Board, 1300 W. Michigan St., Indianapolis, Indiana 46206 (Phone: 317-633-4420). Statutory Source: Maryland Environmental Policy Act of 1973, Ch. 702, Md. Laws of 1973, 41 Ann. Code of Md. §§ 447-451 (Cum. Supp. 1973), and Ch. 703, Md. Laws of 1973, Natural Res. Art., Ann. Code of Md. § 1-301 et seq. (1974 Vol.). Guidelines: "Revised Guidelines for Implementation of the Maryland Environmental Policy Act," issued by the Secretary of the Department of Natural Resources, June 15, 1974. State Contact: Paul McKee, Assistant Secretary, Department of Natural Resources, Tawes State Office Building, Annapolis, Maryland 21404 (Phone: 301-267-5548). Statutory Source: Ch. 781, Acts of 1972, Ann. Laws Mass. Ch. 30, §§ 61-62. (Cum. Supp. 1973), as amended by Ch. 257 of the Acts of 1974. Guidelines: "Regulations to Create Uniform System for the Preparation of Environmental Impact Reports," dated July 6, 1973, as amended October 15, 1973, and as amended in draft form on June 20, 1974. Guidelines are prepared by the Executive Office of Environmental Affairs. State Contact: Matthew B. Connolly, Jr., Chief Planner, Executive Office of Environmental Affairs, 18 Tremont St., Boston, Massachusetts 20408 (Phone: 617-727-7700). Statutory Source: Minnesota Environmental Policy Act of 1973, Ch. 412, Laws of 1973, Minn. Stat. Ann. Ch. 116D (Cum. Supp. 1974). Guidelines: "Rules and Regulations for Environmental Impact Statements," issued by the Minnesota Environmental Quality Council (April 4, 1974). State Contact: John Mohr, Environmental Quality Council, Capitol Square Building, 559 Cedar St., St. Paul, Minnesota 55101 (Phone: 612-296-3985) or Michael R. DesParte, Manager, Environmental Analysis Program, Environmental Quality Council (Same addrss) (Phone: 612-296-2686). Montana Statutory Source: Montana Environmental Policy Act of 1971, Ch. 238, L. 1971, Rev. Code Mont. § 69-6501 et seq. (Cum. Supp. 1973). Guidelines: Montana Environmental Quality Council, "Revised Guidelines for Environmental Impact Statements Required by the Montana Environmental Policy Act of 1971," issued September 19, 1973. State Contact: Loren L. Bahls, Ph. D., Acting Director. Montana Environmental Quality Council, Capitol Station, Helena, Montana 59601 (Phone: 406-449-3742). Statutory Source: North Carolina Environmental Policy Act of 1971 (1971, c. 1203, s. 1), N.C. Gen. Stat. Ch. 113A (Cum. Supp. 1973). Guidelines: North Carolina Department of Administration, "Guidelines for the Implementation of the Environmental Policy Act of 1971," issued February 18, 1972. State Contact: D. Keith Whitenight, Environmental Planning Coordinator, Department of Natural and Economic Resources, P.O. Box 27687, Raleigh, North Carolina 27611 (Phone: 919-829-3115). Statutory Source: South Dakota Environmental Policy Act, SL 1974, Ch. 245 (approved March 2, 1974), S.D. Comp. Laws 1967 Ch. 11-1A (Supp. 1974). Guidelines: Department of Environmental Protection (1974 Informal Guidelines). State Contact: Dr. Allyn O. Lockner, South Dakota Department of Environmental Protection, Office Building No. 2, Room 415, Pierre, South Dakota 57501 (Phone: 605-224-3351). Statutory Source: Virginia Environmental Policy Act of 1973, Ch. 384, Laws of 1973 (approved March 15, 1973) and Ch. 774, Laws of 1972; Va. Code Ann. §§ 10-17.107 through 10-17.112, and §§ 10-177 through 10-186 (Supp. 1973). Guidelines: Procedures Manual for Environmental Impact Statements in the Commonwealth of Virginia, issued by the Governor's Council on the Environment (December 1973). State Contact: Susan T. Wilburn, Environmental Impact Statement Coordinator, Governor's Office, Council on the Environment, Eighth Street Office Building, Richmond, Virginia 23219 (Phone: 804-770-4500). Statutory Source: State Environmental Policy Act of 1971, Rev. Code Wash. Ch. 43.21C (Supp. 1973). For State Highway Project Environmental Impact Report Requirements, see Rev. Code Wash. Ch. 47.04 (Supp. 1973). Guidelines: Guidelines currently in use: "Guidelines for Implementation of the State Environmental Policy Act of 1971." Current guidelines were prepared by the Department of Ecology. State Contact: Stephen B. Crane, State of Washington Council on Environmental Protection, No. 5 South Sound Center, Lacey, Washington 98504, or Peter R. Haskin, Environmental Review and Evaluation, Office of Planning and Program Development, State of Washington Department of Ecology, Olympia, Washington 98504 (Phone: 206-753-6890). Statutory Source: Wisconsin Environmental Policy Act of 1971, Ch. 274, Laws of 1971, adding Wisc. Stat. Ann. Ch. 1, § 1.11 et seq. (Cum. Supp. 1974-1975). Guidelines: "Guidelines for the Implementation of the Wisconsin Environmental Policy Act," issued by Governor's Executive Order No. 69 (December 1973). State Contact: Farnum Alston, Office of the Governor, State Capitol, Madison, Wisconsin 53703 (Phone: 608-266-2121). Puerto Rico's EIS Requirements Statutory Source: Puerto Rico Environmental Policy Act, 12 Laws P.R. Ann. § 1121 et seq. (1970). Guidelines: "Guidelines for the Preparation, Evaluation and Use of Environmental Impact Statements," issued by the Environmental Quality Board on December 19, 1972. Puerto Rico Contact: Carlos Jimenez Barber, Executive Director, Environmental Quality Board, 1550 Ponce de Leon Ave., 4th Fl., Santurce, Puerto Rico 09910 (Phone: 809-725-5140). States With Comprehensive Executive or Administrative Orders Source: Michigan Executive Order 1971-10, as superseded by Michigan Executive Order 1973-9 (1973). Guidelines: Interim Guidelines, prepared by the Environmental Review Board and issued June 24, 1974. State Contact: Terry L. Yonker, Executive Secretary, Environmental Review Board, Department of Management and Budget, Lansing, Michigan 48913 (Phone: 517-373-0933). Source: New Jersey Executive Order No. 53 (October 15, 1973). Guidelines: "Guidelines for the Preparation of an Environmental Impact Statement," issued by the Office of the Commissioner, Department of Environmental Protection (1973). State Contact: Alfred T. Guido, Special Assistant to the Commissioner — Office of Environmental Review, Department of Environmental Protection, P.O. Box 1390, Trenton, New Jersey 08625 (Phone: 609-292-2662). Source: Policy for the Environment, adopted by the Interagency Council on Natural Resources and Environment on March 7, 1972, and published in "Environment for Tomorrow: The Texas Response." Guidelines: Guidelines and procedures are contained in "Environment for Tomorrow: The Texas Response," prepared by the Office of the Governor, Division of Planning Coordination, January 1, 1973. State Contact: Leon Wilhite, Office of the Governor, Division of Planning Coordination, Box 12428, Capitol Station, Austin, Texas 78711 (Phone: 512-475-6156). States With Special or Limited EIS Requirements Source: Game and Fish Commission Policy of July 2, 1971. Guidelines: Memorandum by the Arizona Game and Fish Commission, "Requirements for Environmental Impact Statements," issued June 9, 1971. State Contact: Robert D. Curtis, Chief, Wildlife Planning and Development Division, Arizona Game and Fish Commission, 2222 W. Greenway Rd., Phoenix, Arizona 85023 (Phone: 602-942-3000). Source: Delaware Coastal Zone Act, Ch. 175, Vol. 58 Laws of Del. (June 28, 1971), adding 7 Del. Code Ann. § 7001 et seq. (Supp. 1973), and Delaware Wetlands Law of 1973, adding 7 Del. Code Ann. Ch. 66 (Supp. 1973). Guidelines: 7 Del. Code Ann. Ch. 66, § 6604 (Supp. 1973), and "Permit Application Instructions and Forms and Information Material on Required Procedures for the Coastal Zone Act," prepared and published by the Delaware State Planning Office (1973). State Contact: John Sherman, Coastal Zone Administrator, State of Delaware, Executive Department Planning Office, Dover, Delaware 19901 (Phone: 302-678-4271) or F. Michael Parkowski, Deputy Attorney Genneral, Department of Natural Resources and Environmental Control, Devision of Environmental Control, Dover, Delaware 19901 (Phone: 302-678-4636). Source: Ch. 311, Laws of 1971, 58 N.R.S. Ch. 704 (1971). Guidelines: No guidelines have been issued. State Contact: Roger S. Toundray, Director, Department of Human Resources, 308 N. Curry St., Carson City, Nevada 80701 (Phone: 702-885-4750). Source: Ga. L. 1972-179 (March 10, 1972), Ga. Code Ann. Ch. 95A-1, § 241(e)(1) (1973). Guidelines: Policy and Procedures Manual: State Tollway Authority, prepared by Georgia's Tollway Administrator's Office (May 1972). State Contact: David Carrity, Planning Division, Office of Planning and Budget, Executive Department, 270 Washington St., S.W., Atlanta, Georgia 30334 (Phone: 404-656-3890). Source and Guidelines: Nebraska Department of Roads, Department of Roads Action Plan (1973). State Contact: Robett O. Kuzelka, Comprehensive Planning Coordinator, Office of Planning and Programming, Box 94601, State Capitol, Lincoln, Nebraska 68509 (Phone: 402-471-2311). Source: Coastal Area Facility Review Act, P.L. 1973, Ch. 185 (approved June 20, 1973), N.J.S.A. 13:19-1 et seq. (Cum. Supp. 1974-1975), and the New Jersey Wetlands Act of 1970, Ch. 272, Laws of 1970, N.J.S.A. 13:9A-1 et seq. (Cum. Supp. 1974-1975). Guidelines: "Procedural Rules for the Administration of the Coastal Area Facility Review Act," Draft prepared by the Department of Environmental Protection dated 1974, and "New Jersey Wetlands Order: Basis and Background," issued by the New Jersey Department of Environmental Protection (April 1972). State Contact: Alfred Guido, Special Assistant to the Commissioner, Office of Environmental Review, Department of Environmental Protection, P.O. Box 1390, Trenton, New Jersey 08625 (Phone: 609-292-2662). Source: Executive Order No. 87, October 18, 1973. Guidelines: A "City Environmental Policy Executive Order Environmental Information Form" is utilized for environmental analysis. The Information Form was prepared by the City of New York Environmental Protection Administration in 1973. Contact: Tom Rogers, Office of Environmental Impact, N.Y. Environmental Protection Administration of the City of New York, Room 2344, Municipal Building, New York N.Y. 10007 (Phone: 212-566-4107). Source and Guidelines: The Bowie, Maryland Environmental Policy and Impact Statement Ordinance, passed by the City Council of Bowie, Maryland on May 3, 1971, and Ordinance 0-2-73 of the City Council of Bowie, Maryland, Declaring an Environmental Policy and Providing for Environmental Impact Statements, passed July 16, 1973. Contact: Judith Meany, Environmental Planner, City Hall, Bowie, Maryland 20715 (Phone: 301-262-7900). 1. National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. §§ 4321-4347 (Jan. 1, 1970). 2. CEQ, Third Annual Report (1972), pp. 1-59. 3. Lynton K. Caldwell, testimony in Hearings on S. 1075, S. 237 and S. 1752 before the Committee on Interior and Insular Affairs, U.S. Senate (April 16, 1969), pp. 112-35. 4. Wilderness Society v. Hickel, 325 F. Supp. 422, 1 ERC 1335, 1 ELR 20042 (D. D.C. 1970), rev'g denial of application for intervention, sub nom. Wilderness Society v. Morton, 463 F.2d 1261, 4 ERC 1101, 2 ELR 20250 (D.C. Cir. 1972), further injunction denied, 4 ERC 1467, 2 ELR 20583 (D. D.C. 1972), rev'd 479 F.2d 842, 4 ERC 1977, 3 ELR 20085 (D.C. Cir. 1973). 5. CEQ, Guidelines for Statements on Proposed Actions Affecting the Environment, 36 Fed. Reg. 7724 (1971). 6. Bureau of National Affairs, Environment Reporter, 3:82-87 (May 19, 1972). 7. Council on Environmental Quality, Guidelines for Statements on Proposed Actions Affecting the Environment, 36 Fed. Reg. 20550 (August 1, 1973). (Hereafter cited as CEQ Guidelines). 8. Atomic Energy Act of 1954, Ch. 1073, 68 Stat. 921 (1954), as amended 42 U.S.C. § 2011 et seq. (1964), as last amended P.L. 92-314, 86 Stat. 227, 42 U.S.C. § 2201 (1972). 9. P.L. 91-560, 84 Stat. 1472, 42 U.S.C. §§ 2131-2140 (1970). 10. Atomic Energy Commission, Report on AEC Implementation of the National Environmental Policy Act in Its Licensing and Regulation of Nuclear Facilities (Nuclear Understanding and Public Acceptance), (1972), pp. 3-5, presented by Lester Rogers, Director, Division of Radiological and Environmental Protection, Atomic Energy Commission, Anaheim, California (March 13-16, 1972). 11. See 10 C.F.R. Part 50, Appendix D (December 4, 1970). 12. Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 2 ERC 1779, 1 ELR 20346 (D.C. Cir. 1971). 13. Statement by AEC Chairman James Schlesinger, issued August 27, 1971. 14. For discussion of AEC adjustment to the Calvert Cliffs' decision, see Atomic Energy Commission document, Statement by L. Manning Muntzing, Director of Regulation, AEC, FY 1973 Aughorization Hearings Before the Joint Committee on Atomic Energy (March 9, 1972). 15. Atomic Energy Commission, Preparation of Environmental Reports for Nuclear Power Plants, issued March 1973. 16. Atomic Energy Commission, presentation to the Council on Environmental Quality, AEC Regulatory Implementation of NEPA (from the expanded outline), by A. Giambusso, AEC Deputy Director for Reactor Projects, at 10 (March 6, 1973). 17. Organic Administration Act of 1897, Act of June 4, 1897, 30 Stat. 34, as amended, 16 U.S.C. §§ 473-478, 479-482, 551 (1897); Multiple Use-Sustained Yield Act, P.L. 86-517, 74 Stat. 215, 16 U.S.C. §§ 528-531 (1960). 18. Address by Chief Forester Edward P. Cliff, Washington, D.C., January 1971. 19. Forest Service, Framework for the Future (Feb. 1970). 20. Forest Service, Emergency Directive 1, Forest Service Manual (1940) (July 13, 1971). 21. Forest Service, Emergency Directive 1, Forest Service Manual (1940) (November 9, 1971). 22. D. Ross Carder and Clarkson H. Oglesby, Unified Planning and Decision Making: A Conceptual Framework for Forest Service Management, prepared for incorporation into doctoral dissertation, Stanford University (October 1973). 23. E.g., Forest Service, Federal Resource Report No. 20, The Outlook for Timber in the United States (October 1973); Forest Service, National Forest Management in a Quality Environment — Timber Productivity (1971). 24. See Forest Service, National Forest Management in a Quality Environment — Timber Productivity, at i-ii (March 1971). 25. CEQ Guidelines, 38 Fed. Reg. 20550 (August 1, 1973). 26. CEQ, An Evaluation of Implementation and Administration of NEPA by the Forest Service and the Bureau of Land Management (Preliminary Report, Feb. 1974); CEQ, A Study of the Implementation of NEPA by the United States Navy (March 1974). 27. Roger W. Findley, "The Planning of a Corps of Engineers Reservoir Project: Law, Economics and Politics," 3 Ecology Law Quarterly 1 (1973). 28. John Randolph, New Melones, NEPA and the Political Process: The Effect of the National Environmental Policy Act on the Planning of New Melones Lake, prepared for incorporation into doctoral dissertation, Stanford University (1974). 29. Environmental Protectlion Agency, Office of Federal Activities, Guidelines for Review of Environmental Impact Statements — Vol. 1: Highway Projects (September 1973); Manual for Preparation of Environmental Impact Statements for Waste Water Treatment Works, Facilities, Plans and 208-Area-Wide Waste Treatment Management Plans (July 1974). 30. Federal Water Pollution Control Act Amendments of 1972, P.L. 92-500, 86 Stat. 816, 33 U.S.C. 1151 et seq., § 511(c)(1) (1972). 31. Clean Air Amendments of 1970, P.L. 91-604, 84 Stat. 1676, 42 U.S.C. § 1857 et seq., (1970). 32. The Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 135-135K (1970). 33. Portland Cement Association v. Ruckelshaus, 486 F.2d 375, 5 ERC 1593, 3 ELR 20642 (D.C. Cir. 1973); EDF v. EPA, 489 F.2d 1247, 6 ERC 1112, 4 ELR 20031 (D.C. Cir. 1973). 34. The Energy Supply and Environmental Coordination Act of 1974, P.L. 93-319, § 7(c)(1) (June 22, 1974). 35. 39 Fed. Reg. 16186 (May 7, 1974) (effective October 15, 1974). 36. Energy Policy Office (now Federal Energy Administration), Environmental Impact Statement, Proposed Establishment of Priorities of Use and Allocation of Supply for Certain Low Sulfur Petroleum Products (Final, November 8, 1973). 37. Architect of the Capitol, Environmental Impact Statement, Modifications to and Enlargement of the Capitol Power Plant, Washington, D.C. (Draft, February 13, 1973). 38. Department of Labor, Environmental Impact Statement, Proposed Regulation: Handling of Certain Carcinogens (Final, October 2, 1973); Supplement — Emergency Standards — Carcinogens (December 3, 1973). 39. Energy Policy Office (now Federal Energy Administration), supra note 36. 40. E.g., Department of the Interior, Environmental Impact Statement, Proposed 1974 Outer Continental Shelf Oil and Gas General Lease Sale, Offshore Louisiana (Final, January 23, 1974). 41. Department of the Interior, Environmental Impact Statements, Final Environmental Impact Statement for the Geothermal Leasing Program (Final, October 24, 1973), and Final Impact Statement for the Prototype Oil Shale Leasing Program (Final, August 29, 1973). 42. Department of the Interior, Environmental Impact Statement, Crow Ceded Area Coal Lease Westmoreland Resources Mining Proposal (Final, January 29, 1974). 43. Alaska Native Claims Settlement Act, Pub. L. 92-203, 85 Stat. 688, 43 U.S.C. §§ 1601-1624 (1971). 44. Department of State, Environmental Impact Statement, Third U.N. Law of the Sea Conference (Draft, May 29, 1974). 45. Department of State, Environmental Impact Statement, Colorado River International Salinity Control Project, (Draft, April 1, 1974). 46. Department of Transportation, Environmental Impact Statement, I-66 Corridor Transportation Alternatives Study (Draft, November 16, 1973). 47. Department of Agriculture, Environmental Impact Statements, Vegetation Management with Herbicides: Deschutes, Winema, Ochoco and Fremont National Forests (Oregon) (Final, July 25, 1973) and The Use of Herbicides in Land Management: Washington, Idaho, Montana, North and South Dakota (Final, November 14, 1973). 48. Department of Commerce, Environmental Impact Statement, Maritime Administration Tanker Construction Program (Final, May 31, 1973). 49. Atomic Energy Commission, Environmental Impact Statement, Liquid Metal Fast Breeder Reactor Draft Environmental Impact Statement (Draft, March 8, 1974). 50. Hall v. Cole, 412 U.S. 1 (1973). 51. Mills v. Electric Auto-Life Co., 396 U.S. 375 (1970). 52. Wilderness Society v. Morton, 495 F.2d 1026, 6 ERC 1427, 4 ELR 20279 (D.C. Cir. 1974). An intention to appeal this decision has been indicated by Alyeska. 53. Wilderness Soviety v. Hickel, 325 F. Supp. 422, 1 ERC 1335, 1 ELR 20042 (D.D.C. 1970), rev'g denial of application for intervention, sub nom. Wilderness Society v. Morton, 463 F.2d 1261, 4 ERC 1101, 2 ELR 20250 (D.C. Cir. 1972), further injunction denied, 4 ERC 1467, 2 ELR 20583 (D.D.C. 1972), rev'd 479 F.2d 842, 4 ERC 1977, 3 ELR 20085 (D.C. Cir. 1973). 54. Wilderness Society v. Morton, 495 F.2d 1026, 1030, 6 ERC 1427, 1429, 4 ELR 20279, 20280 (D.C. Cir. 1974). 55. Id. at 1038, 6 ERC at 1434, 4 ELR at 20285. 56. Id. at 1034, 6 ERC at 1431, 4 ELR at 20282. 57. Id. at 1036, 6 ERC at 1433, 4 ELR at 20283. 58. Maryland National Capital Park and Planning Commission v. Postal Service, 349 F. Supp. 1212, 4 ERC 1655, 2 ELR 20656 (D.D.C. 1972), remanded 487 F.2d 1029, 5 ERC 1719, 3 ELR 20702 (D.C. Cir. 1973). 59. Id. at 349 F. Supp. 1212, 1214, 4 ERC 1655, 1656, 2 ELR 20656, 20657 (D.D.C. 1972). 60. Id. at 487 F.2d 1029, 1036, 5 ERC 1719, 1723, 3 ELR 20702, 20704 (D.C. Cir. 1973). 61. Id. at 1040, 5 ERC at 1725-26, 3 ELR at 20706. 62. Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 3 ERC 1595, 2 ELR 20017 (2d Cir. 1972), cert den. 409 U.S. 849 (1973). 63. Id. at 420, 3 ERC at 1599-1600, 2 ELR at 20020. 64. Id. at 420, 3 ERC at 1600, 2 ELR at 20020. 65. Conservation Society of Southern Vermont v. Scretary of Transportation, 362 F. Supp. 627, 5 ERC 1683, 3 ELR 20709 (D.C. Vt. 1973). 66. Life of the Land v. Volpe, 363 F. Supp. 1171, 5 ERC 1413, 3 ELR 20180 (D.C. Hawaii 1972), aff'd sub nom. Life of the Land v. Brinegar, 485 F.2d 460, 5 ERC 1780, 3 ELR 20811 (9th Cir. 1973), motions granted to vacate stay and injunction __ U.S. __, 94 S. Ct. 558, 6 ERC 1047 (1973), cert. den. 6 ERC 1512 (1974). 67. Citizens Environmental Council v. Volpe, 364 F. Supp. 286, 4 ERC 1970, 3 ELR 20077 (D.C. Kan. 1973), aff'd. 484 F.2d 870, 5 ERC 1989, 4 ELR 20009 (10th Cir. 1973), cert. den. 6 ERC 1440 (1974). 68. Movement Against Destruction v. Volpe, 361 F. Supp. 1360, 5 ERC 1625, 3 ELR 20667 (D.C. Md. 1973), aff'd. 4 ELR 20278 (4th Cir. 1974). 69. Citizens for Mass Transit Against Freeways v. Brinegar, 357 F. Supp. 1269, 5 ERC 1231, 3 ELR 20746 (D.C. Ariz. 1973). 70. Iowa Citizens for Environmental Quality v. Volpe, 4 ERC 1755, 3 ELR 20013 (S.D. Iowa 1972), aff'd. 487 F.2d 849, 6 ERC 1088, 4 ELR 20056 (8th Cir. 1973). 71. National Forest Preservation Group v. Butz, 343 F. Supp. 696, 4 ERC 1535, 2 ELR 20571 (D.C. Mont. 1972), rev'd 485 F.2d 408, 5 ERC 1863, 3 ELR 20783 (9th Cir. 1973). 72. Northside Tenants' Rights Coalition v. Volpe, 346 F. Supp. 244, 4 ERC 1376, 2 ELR 20553 (E.D. Wisc. 1972). 73. See, e.g., CEQ Guidelines, § 1500.7(c), 38 Fed. Reg. 20550, 20553 (August 1, 1973). 74. National Helium Corp. v. Morton, 361 F. Supp. 78, 5 ERC 1545 (D.C. Kan. 1973), rev'd 486 F.2d 995, 6 ERC 1001, 4 ELR 20041 (10th Cir. 1973). 75. The Fourth, Fifth, Eighth, and District of Columbia Circuits have concluded that NEPA establishes standards against which a court can, under the Administrative Procedures Act, review the substance of an agency decision. The standard to be applied in carrying out this review is the "arbitrary, capricious, or abuse of discretion" standard. The Ninth and Tenth Circuits have concluded that NEPA creates only procedural requirements. In these circuits, no review of the substance of an agency decision, for compliance with the policies of NEPA, has yet been recognized. 76. National Helium Corp. v. Morton, supra, 486 F.2d at 1002-1003, 6 ERC at 1005, 4 ELR at 20044. 77. Id. at 1004, 6 ERC at 1007, 4 ELR at 20045. 78. Department of State, Environmental Impact Statement: Issuance of Final Department Procedures for Compliance with Federal Environmental Statutes, 37 Fed. Reg. 19167-19169 (September 19, 1972). 79. National Science Foundation, Circular No. 99, Rev. No. 2, § 6(b)(3) (February 28, 1974). 80. Department of State, Environmental Impact Statement, Proposed Dumping Convention (Final, December 2, 1973). 81. Department of the Interior, Environmental Impact Statement, Endangered Species Convention (Final, August 9, 1973). 82. Department of State, Environmental Impact Statement, International Convention on Oil Pollution (Final, December 19, 1972). 83. Staff Interview, Malcolm Baldwin, CEQ, with D. Pottinger, Director of Environmental Control, State of Tasmania, Australia, in Washington, D.C., July 11, 1974. 84. Environment Canada, News Release Communique, Federal Government Developments to be Screened for Environmental Effects, March 14, 1974. 85. See generally, Nicholas C. Yost, Esq., NEPA's Progeny: State Environmental Policy Acts, 3 ELR 50090 (1973); Thaddeus C. Trzyna, Environmental Impact Requirements in the States, prepared for the Office of Research and Monitoring, Environmental Protection Agency, reprinted in Council on Environmental Quality, 102 Monitor, Vol. 3, No. 3, April 1973, at 21 et seq; Gordon A. Enk, Beyond NEPA: Criteria for Environmental Impact Review. (Rensselaerville, N.Y.: The Institute of Man and Science, May 1973); Council on Environmental Quality, Environmental Quality — The Third Annual Report of the Council on Environmental Quality (1972); Center for California Public Affairs, Survey of State Environmental Policy Acts (February 1, 1973). 86. California Environmental Quality Act of 1970 (CEQA), Cal. Pub. Res. Code §§ 21000-21174 (Supp. 1972), as amended by Ch. 56, Statutes of 1974 (March 4, 1974); Connecticut Environmental Policy Act of 1973, Pub. Act 73-562, approved June 22, 1973 (effective Feb. 1, 1975), Conn. Gen. Stat. Ch. 439, § 22a-1 et seq. (Cum. Supp. 1974-1975) (Note: Connecticut is presently operating under Executive Order No. 16, October 14, 1972);IC 1971, 13-1-10, added by P.L. 98, 1972, Ind. Stat. Ann. § 35-5301 et seq. (Supp. 1971); Act 246, Sess. Laws of Hawaii (approved June 4, 1974), Hawaii Rev. Stat. Ch. 334 (1974) [Note: This law has not yet become fully effective; as of August 1, 1974, Hawaii was still operating under its corresponding Executive Order, Hawaii Executive Order of August 23, 1971]; Maryland Environmental Policy Act of 1973, Ch. 702, Md. Laws of 1973, 41 Ann. Code of Md. §§ 447-451 (Cum. Supp. 1973), and Ch. 703, Md. Laws of 1973 Natural Res. Art., Ann. Code of Md. § 1-301 et seq. (1974 Vol.); Ch. 781, Acts of 1972, Ann. Laws Mass. Ch. 30, §§ 61-62 (Cum. Supp. 1973), as amended by C. 257 of the Acts of 1974; Minnesota Environmental Policy Act of 1973, Ch. 412, Laws of 1973, Minn. Stat. Ann. Ch. 116D.(Cum. Supp. 1974); Montana Environmental Policy Act of 1971, Ch. 238, L. 1971, Rev. Code Mont. § 69-6501 et seq. (Cum. Supp. 1973); North Carolina Environmental Policy Act of 1971 (1971, c.1203, s.1), N.C. Gen. Stat. Ch. 113A (Cum. Supp. 1973); South Dakota Environmental Policy Act, SL 974, Ch. 245 (approved March 2, 1974), S.D. Comp. Laws 1967, Ch. 11-1A (Supp. 1974); Virginia Environmental Policy Act of 1973, Ch. 774, Laws of 1972 and Ch. 384, Laws of 1973 (approved March 15, 1973, Va. Code Ann. §§ 10-177 through 10-185 and §§ 10-17.107 through 10-17.112 (Supp. 1973); State Environmental Policy Act of 1971 (SEPA), Rev. Code Wash. Ch. 43.21C (Supp. 1973); and Wisconsin Environmental Policy Act of 1971, Ch. 274, Laws of 1971, adding Wisc. Stat. Ann. Ch. 1, § 1.11 et seq. (Cum. Supp. 1974-1975). See also Puerto Rico Environmental Policy Act, 12 Laws P.R. Ann. § 1121 et seq. (1970). 87. Michigan Executive Order 1971-10, as superseded by Michigan Executive Order 1973-9; New Jersey Executive Order No. 53 (October 5, 1973); and Policy for the Environment, adopted March 7, 1972 by the Texas Interagency Council on Natural Resources and the Environment. In New Jersey, recent court and legislative actions have mandated environmental assessments of major public projects such as the Sports Complex by the New Jersey Sports and Exposition Authority and the Governor Alfred E. Driscoll Expressway by the New Jersey Turnpike Authority. In addition, two major pieces of New Jersey environmental legislation have included provisions for environmental impact statements prior to the issuance of permits on major projects. Coastal Area Facility Review Act, P.L. 1973, Ch. 185 (approved June 20, 1973), N.J.S.A. 13:19-1 et seq. (Cum. Supp. 1974-1975), and the New Jersey Wetlands Act of 1970, Ch. 272, Laws of 1970, N.J.S.A. 13:9A-1 et seq. (Cum Supp. 1974-1975). for the Wetlands Act EIS requirements, see New Jersey Wetlands Order, New Jersey Department of Environmental Protection (April, 1972). 88. Arizona, Georgia, Nevada, Nebraska and Delaware have impact statement requirements for selected categories of state activities. See text, infra. 89. Arizona Game and Fish Commission Policy of July 2, 1971. 90. Ga. L. 1972-179 (March 10, 1972), Ga. Code Ann. Ch. 95A-1, § 241(e)(1) (1973). 91. Ch. 311, Laws of 1971, 58 New Rev Stat. Ch. 704 (1971). 92. Nebraska Department of Roads, Department of Roads Action Plan (1973). 93. Delaware Coastal Zone Act, Ch. 175, Vol. 58 Laws of Del. (June 28, 1971), adding 7 Del. Code Ann. § 7001 et seq. (Supp. 1973) and Delaware Wetlands Law of 1973, adding 7 Del. Code Ann. Ch. 66 (Supp. 1973). 94. New York City, Executive Order No. 87, October 18, 1973. 95. Ordinance 0-2-73 of the Council of the City of Bowie, Maryland, July 16, 1973. 96. Suggested State Environmental Policy Act, originally drafted at Second National Symposium on State Environmental Legislation, Arlington, Va. (April 10-12, 1973); see also Council of State Governments 1974 Suggested State Legislation (Vol. 33). (Hereinafter referred to as Model Act.) 97. Ann. Laws Mass. Ch. 30, § 62 (Cum. Supp. 1973). 98. Michigan Executive Order 1973-9 (1973). 99. Policy for the Environment, at 2 (March 7, 1972), and Wisc. Stat. Ann. § 1.11(2)(c)(6) (Cum. Supp. 1974-1975). 100. Minn. Stat. Ann. § 116D.04(1)(f) and § 116D.04(1)(g) (Cum. Supp. 1974). 101. Cal. Pub. Res. Code § 21100(c) (Supp. 1972). 102. 41 Ann. Code of Md. § 451(a)(2) (Cum. Supp. 1973); Ann. Laws Mass. Ch. 30, § 62 (Cum. Supp. 1973); N.C. Gen. Stat. § 113A-4(2)(c) (Cum. Supp. 1973); Va. Code Ann. § 10-17.108(3) (Supp. 1973); and Model Act § 5(b)(6) (1973). 103. CEQ Guidelines § 1500.8(a)(4), 38 Fed. Reg. 20054 (August 1, 1973). 104. Cal. Pub. Res. Code § 21100(g) (Supp. 1972) and Model Act § 5(b)(7) (1973). 105. Montana Environmental Quality Council, Revised Guidelines for Environmental Impact Statements Required by the Montana Environmental Policy Act of 1971, § 6(a)(9), September 19, 1973. 106. Conn. Pub. Act 73-562, § 2(c), approved June 22, 1973 (effective Feb. 1, 1975); Michigan Executive Order 1973-9 (1973); Minn. Stat. Ann. § 116D.04(1)(b) (Cum. Supp. 1974); Rev. Code Mont. § 69-6504(b)(2) (Cum. Supp. 1973); and Wisc. Stat. Ann. § 1.11(2)(c)(6) (Cum. Supp. 1974-1975). 107. Michigan Executive Order 1973-9 (1973). 108. CEQ Guidelines § 1500.8(a)(3)(ii), 38 Fed. Reg. 20553 (August 1, 1973). 109. See CEQ Guidelines § 1500.5(a)(2), 38 Fed. Reg. 20551 (August 1, 1973). 110. Friends ofMammoth v. Board of Supervisors of Mono County, 8 Cal. 3d 247, 104 Cal. Rptr. 16, 500 P.2d 1360, 4 ERC 1593, 2 ELR 20673 (1972), mod. 104 Cal. Rptr. 761, 502 P.2d 1049, 4 ERC 1705 (1972). 111. Cal. Pub. Res. Code §§ 21169-21170 (Supp. 1972). 112. Cal. Pub. Res. Code § 21171 (Supp. 1972). 113. Ann. Laws Mass. Ch. 30, § 62 (Cum. Supp. 1973). 114. Ann. Laws Mass. Ch. 30, § 62 (Cum. Supp. 1973), as amended by Acts of 1974, c.257, s.1 (1974). 115. Massachusetts Executive Office of Environmental Affairs, Regulations to Create a Uniform System for the Preparation of Environmental Impact Reports, § 2.4 (July 6, 1973); see also Regulations to Implement G.L. C.30 s.62, as amended by C. 257 of the Acts of 1974, prepared by Charles W. Foster, Secretary, Executive Office of Environmental Affairs (Draft, June 20, 1974). 116. RCW, § 43.21C.030(2) (Supp. 1973). 117. Michigan Executive Order 1973-9 (1973); Montana Environmental Quality Council Revised Guidelines for Environmental Impact Statements Required by the Montana Environmental Policy Act of 1971, § 5(a)(2), September 19, 1973; and Guidelines for the Implementation of the Wisconsin Environmental Policy Act, at 2, issued by Governor's Executive Order No. 69 (December 1973). 118. N.C. Gen. Stat. § 113A-8 (Cum. Supp. 1973). 119. Holden Beach, North Carolina, Ordinance Requiring Environmental Impact Statements, dated July 11, 1972. See Trzyna, Environmental Impact Requirements in the States, supra note 85. 120. 41 Ann. Code of Md. § 449(A) (Cum. Supp. 1973). 121. Minn. Stat. Ann. § 116D.04(1) (Cum. Supp. 1974). 122. Texas, Interagency Council for Natural Resources and the Environment, Policy for the Environment 2 (March 7, 1972), and Guidelines for Preparation and Review of Environmental Impact Statements for State-Supported Projects, at 1, in Environment for Tomorrow: The Texas Response (January 1, 1973). 123. Va. Code Ann. § 10-17.107(b) (Supp. 1973). 124. IC 1971, 13-10, Pub. L. No. 98, § 6, approved February 25, 1972. 125. Cal. Pub. Res. Code § 21161 (Supp. 1972). 126. Hawaii Executive Order (August 23, 1971). 127. Ann. Laws Mass. Ch. 30, § 62 (Cum. Supp. 1973). 128. See Memorandum from former Governor Robert W. Scott to Heads of All State Agencies and Institutions, delegating review authority to the North Carolina Council on State Goals and Policy, February 9, 1972. 129. Conn. Pub. Act 73-562, § 8, approved June 22, 1973 (effective Feb. 1, 1975), and Michigan Executive Order 1973-9 (1973). 130. Va. Code Ann. § 10-17.110 (Supp. 1973). 131. Minn. Stat. Ann. § 116D.04(3) (Cum. Supp. 1974). 132. Minn. Stat. Ann. § 116D.04(9) (Cum. Supp. 1974). 133. 14 Cal. Admin. Code Ch. 3, Guidelines for Implementation of the California Environmental Quality Act of 1970 (Register 73, No. 50-12-15-73), as amended by order of the Secretary for Resources, March 22, 1974. 134. Michigan Executive Order 1973-9 (1973). 135. North Carolina Department of Administration, Implementation of the Environmental Policy Act of 1971 at 2, February 18, 1972. 136. Wisc. Stat. Ann. § 1.11(d) (Cum. Supp. 1974-1975). 137. Massachusetts Executive Office of Environmental Affairs, Regulations to Create a Uniform System for the Preparation of Environmental Impact Reports, § 7.3 (July 6, 1973). 138. Minnesota Environmental Quality Council, Rules and Regulations for Environmental Impact Statements, at 23-24 (April 4, 1974). 139. 14 Cal. Admin. Code Ch. 3, Guidelines for Implementation of the California Environmental Quality Act of 1970 (Register 73, No. 50-12-15-73), § 15061(b) (1973). 140. City of Roswell, N.M. v. New Mexico Water Quality Commission, 4 ERC 1753, 3 ELR 20181 (N.M. Ct. of App. 1972). 141. Albuquerque Journal, Feb. 17, 1974, p. C-10. 5 ELR 50005 | Environmental Law Reporter | copyright © 1975 | All rights reserved |