New NEPA Study Published by Environmental Law Institute Staff Member

The Environmental Law Institute has announced publication of A National Policy for the Environment: NEPA and its Aftermath,¹ by Staff Political Scientist Richard A. Liroff. The book analyzes both enactment of the National Environmental Policy Act (NEPA) and the behavior of each of the key actors in its implementation.

The author concludes that the impact of NEPA was probably greater than that expected by many congressmen, and that the pattern of conflict over its implementation probably assumed a form far different from that which they anticipated. The absence of clear criteria within the law by which to evaluate the legal adequacy of administrative decisions, the limited policy-coordinating power of the Council on Environmental Quality (CEQ), and the opportunity NEPA provided for judicial review of agency decisions all encouraged definition and enforcement of the law's requirements through judicial rather than administrative processes. Environmental groups acted as surrogates for CEQ through their litigation, playing a considerable oversight role that was beyond the Council's capabilities. Agency actions having significant impacts on the environment that were taken in NEPA's wake were shaped by CEQ's interpretation of NEPA, by the agencies' own procedural guidelines for compliance with the Act, by the litigation initiated by environmental activists, and by the response of Congress to judicial decisions resulting from the environmentalists' lawsuits.

Liroff initially focuses on NEPA's genesis in Congress. He notes that the interest groups most likely to be affected by NEPA showed little interest in the pending legislation. The principal disputes over the bill were jurisdictional and involved only a few congressmen and senators, and hardly any congressional attention was devoted to the bill's implications for judicial oversight of administrative decision making. Only two congressmen were alert to the possibility that NEPA might become a powerful tool for environmentalists, but they were outmaneuvered in conference committee and not heeded on the House floor.

Chapter 3 of the study, which first appeared in ELR in somewhat different form,² describes the role of CEQ [6 ELR 10153] under NEPA. CEQ had few resources with which to persuade reluctant agencies to comply with the Act. Its presidential advisory relationship was fragile, its budget was reviewed by a potentially hostile congressional committee, and it lacked power to impose sanctions. CEQ's inability to produce executive agency action consonant with what it deemed to be the requirements of NEPA produced a flurry of lawsuits initiated by citizen activists and others.³

NEPA's broad language and CEQ's limited power left executive agencies with considerable discretion to decide for themselves how best to implement NEPA. The fourth chapter of the book examines several measures of the agencies' behavior and identifies several patterns of agency response. First, agencies like the FPC and the AEC (prior to Calvert Cliffs') felt that compliance might interfere with achievement of their traditional missions. Second, there was lack of procedural response on the part of agencies like EPA which regarded NEPA as superfluous because their decisions were already infused with environmental considerations. Third, a few agencies, like the AEC after Calvert Cliffs' and the Army Corps of Engineers, made some concerted effort to implement NEPA. In the case of both these agencies, however, considerable environmentalist dissatisfaction continued to be expressed with the level of agency concern for environmental matters.

Fourth, a number of agencies showed a lack of interest in NEPA because ecological considerations did not seem germane to their principal missions, and they saw little reward to be gained by allocating scarce agency resources to environmental concerns. These agencies were also under less litigation pressure than agencies like the Corps and Department of Transportation, because their activities were of less concern to environmentalists. This fourth category contains too many agencies for enumeration here, but includes, e.g., the Small Business Administration, the Federal Trade Commission, and the Arms Control and Disarmament Agency.

Environmentalists' dissatisfaction with agency response, their view of NEPA as a forceful weapon to use against on-going projects that they hitherto had unsuccessfully opposed, and their desire to see an elaboration upon NEPA's broadly stated requirements, all combined to push many vital decisions about NEPA's interpretation into the courts. NEPA's enactment at a time when the courts were increasingly opening their doors to public interest groups also spurred this lateral movement from the executive to the judiciary.

The first portion of the book's fifth chapter focuses on how environmentalists managed to gain access to federal courtrooms, discussing the funding of environmental litigation and the lowering of doctrinal barriers to judicial relief. The succeeding section of the chapter explores a major motivating force underlying the generally positive court reception given environmentalists: judicial annoyance with continued abuse of agency discretion. To provide a microcosmic view of NEPA litigation, a concluding section analyzes NEPA suits involving water resource development projects. From this examination, the author discerns a definite trend in judicial decisionmaking: decisions hardest on the agencies were handed down in 1971 and 1972, while courts were generally showing considerable moderation by the end of 1973.

The succeeding chapter examines the congressional reaction to NEPA and citizen suits prompted by the judicial activism of late 1971 and 1972. Efforts to limit NEPA's scope and the role of citizen litigation assumed three principal forms. First, attempts were made to terminate existing injunctions or preclude future ones by exempting enjoined or threatened projects like the Alaska pipeline from compliance with NEPA. Second, for specific agency programs, efforts were made to establish independent environmental evaluation procedures, thereby exempting projects formulated under such procedures from NEPA's environmental impact statement requirement. Third, Congress considered placing restrictions on citizens' rights to sue for environmental ends. A major portion of this effort to amend NEPA evolved from some congressional committees' discontent with the statute's impact on programs that hitherto had been immune to challenge because of the fraternal relationship between the committees and their agency clientele.

Environmental groups played a far more active role in the 1972 legislative struggles over NEPA than they had during NEPA's enactment. This was in large measure a result of their realization of NEPA's importance, a view not held at the time NEPA was enacted, and their realization that whatever success they enjoyed in bringing pressure to bear on agencies through the use of the courts would be diminished by congressional subversion of the statute.

The closing chapter of the book highlights some of the pressing "second-generation" NEPA issues that have developed in the last two years. These include increasing demands for programmatic impact statements, attempts to produce statements that are more analytical and less descriptive, and efforts to expand agencies' substantive mandates to include environmental concerns.⁴

Throughout his analysis, Dr. Liroff attempts to distinguish procedural compliance from substantive compliance with the statute. He contends that it is difficult to obtain a complete picture of the changes in agency decisionmaking attributable to NEPA. For example, in anticipation of possible adverse public reaction, agencies may forego some actions, or may modify others in a manner that would not have occurred prior to NEPA's enactment. Because of their own raised ecological awareness and because ofaggressive environmentalist oversight, agencies are compiling more complete [6 ELR 10154] records of their projects' environmental implications. In those instances where exhaustive research reveals likely grave ecological consequences, agencies sometimes reconsider committing themselves to projected courses of action. Liroff concludes, however, that if environmental ends are continually and substantially subordinated to other ends, then the legacy of NEPA for the next generation may be little more than a highly detailed record of how this generation systematically abused the natural environment.

1. Available for $10.00 from Indiana University Press, Bloomington, Indiana 47401. Portions of the text are reproduced by permission of the copyright holder, Indiana University Press, all rights reserved.

2. Liroff, The Council on Environmental Quality, 5 ELR 50051 (1973).

3. E.g., Calvert Cliffs' Coordinating Committee v. AEC, 449 F.2d 1109, 1 ELR 20346 (D.C. Cir. 1971), cert. denied, 404 U.S. 942 (1972); Greene County Planning Board v. Federal Power Commission, 455 F.2d 412, 2 ELR 20017 (2d Cir.), cert. denied, 41 U.S.L.W. 3184 (1972); Ely v. Velde, 321 F. Supp. 1088, 1 ELR 20082 (E.D. Va.), rev'd, 451 F.2d 1130, 1 ELR 20612 (4th Cir. 1971); Davis v. Morton, 335 F. Supp. 1258, 2 ELR 20003 (D.N.M. 1971), rev'd, 469 F.2d 593, 2 ELR 20758 (10th Cir. 1972).

4. These issues are discussed in detail in the articles on NEPA appearing at 6 ELR 50001 et seq. (1976).