NEPA Off the Top: The Supreme Court Interprets Impact Statement Requirement

The United States Supreme Court has undercut recent judicial¹ and scholarly² attempts to expand the use of programmatic impact statements under the National Environmental Policy Act (NEPA) in order to inject environmental factors more deeply into agency policy making. In Kleppe v. Sierra Club,³ Justice Powell, writing for a seven-member majority, specifically disapproved the D.C. Circuit's attempt to quicken program impact statement timing by requiring commencement of statement preparation where programmatic major federal action is shown to be imminent, even though the agency denies that it is contemplating a program. The Court also concluded that, except in rare cases, agencies determinations of the proper geographical scope of such impact statements in situations involving multiple private proposals for action are entitled to judicial deference. And it rejected the suggestion, discussed with favor by the court of appeals, that NEPA imposes substantial comprehensive planning duties on federal agencies.

The Litigation

The energy crisis and Arab oil embargo of 1973 accelerated interest in exploration and extraction of the massive low-sulfur coal reserves of the Northern Great Plains region, the great majority of which are found in a single deposit in a compact area encompassing eastern Montana, northeastern Wyoming, western North Dakota and northwestern South Dakota.⁴ Inasmuch as the federal government owns or controls 60 to 80 percent of the estimated total reserves in the region,⁵ federal agency approval, under the Mineral Leasing Act of 1920⁶ and other authorities, is necessary for development of the region's coal. Most of these deposits are close to the surface and so accessible to strip mining. Thus, since the region is best known for clean air, abundant wildlife and fish, beautiful scenery and sparse rural population, large scale coal development is expected to have significant environmental impacts. Accordingly, in 1970, in response to a growing number of private applications to mine or otherwise exploit the region's coal, the interior Department, other federal agencies, and state and local units began a series of studies of the area's resources, culminating in 1972 with initiation of Interior's Northern Great Plains Resources Program (NGPRP), a "comprehensive investigation of the social, economic and environmental aspects of coal development."⁷

Early in 1973, the Secretary of Interior announced a partial moratorium on issuance of coal prospecting and leasing permits pending preparation of a nationwide coal programmatic impact statement. In June of that year, plaintiffs⁸ brought this suit seeking preparation of a regional impact statement under NEPA and issuance of an injunction against agency actions relating to coal development and exploitation in the region.⁹

The district court denied relief,¹⁰ finding that the federal defendants had not put forward a regional program or plan for their actions in the region, and so concluding that NEPA did not require preparation of a regional impact statement.

In a split opinion written by Judge J. Skelly Wright, the Court of Appeals for the D.C. Circuit reversed.¹¹ The court read the record to show that defendants were contemplating regional federal action to control coal development and remanded to the district court to determine whether the contemplated federal action was so near fruition as to be considered a proposal, and if so, to order preparation of a regional impact statement.¹² In [6 ELR 10165] reaching the conclusion that the agencies were seriously contemplating regional federal action, the court relied on the NGPRP, quoting from a 1972 letter in which then-Secretary of Interior Morton set forth its purpose:

The vast reserves of coal in the Fort Union Region of Montana, North Dakota, South Dakota and Wyoming provide an excellent opportunity for this Department to demonstrate how a responsible Federal agency can manage resource development with proper regard for environmental protection.¹³

The court referred to similar statements of intent by the Secretary in reports and congressional appearances, and invoked the district court's specific finding that the agencies were attempting to control coal development in the region.

The court of appeals then commented favorably upon, but did not adopt, plaintiffs' theory that NEPA justifies courts going beyond scrutiny of actual agency behavior to require comprehensive impact statements if a comprehensive program should be under way. Plaintiffs argued that NEPA imposes a requirement for such comprehensive planning whenever necessary to evaluate cumulative or synergistic effects of activities, or to preclude unintended foreclosure of alternatives.

The Supreme Court reversed,¹⁴ rejecting both the court of appeals' and the plaintiffs' theories.

The Timing Issue

Justice Powell, writing for the seven-member majority, interpreted § 102(2)(C) of NEPA to impose a "quite precise"¹⁵ procedural duty on agencies; in his view, the section "clearly states when an impact statement is required …,"¹⁶ namely when an agency prepares a report on a "proposal for major federal action." But, as the dissent pointed out,¹⁷ since Congress did not define the terms in that phrase, their meaning is hardly precise. This is particularly true since federal agency actions take myriad forms — including not only affirmative activities but also actions that consist solely of approving private proposals. Thus, it is hardly surprising that the issue of proper impact statement timing has generated innumerable controversies and spawned numerous judicial constructions¹⁸ and agency administrative interpretations.¹⁹ These have been distilled and codified in guidelines issued by the Council on Environmental Quality.²⁰

In this very action, the Court noted (without further comment) Interior was following a line of lower court cases²² requiring agency impact statement preparation prior to agency approval of proposed private actions. At first blush, the act of agency licensing would hardly seem to be either a "proposal," or "major federal action." In short, the sizeable NEPA "common law" gloss²³ of the first sentence of § 102(20(C) belies the Court's simple faith in the clear meaning of its language.

While the Court refused to require preparation of a regional impact statement as early as requested by plaintiffs or as required by the court of appeals, it did agree in principle that a final program impact statement must be completed when a formal proposal for programmatic action is made. Technically speaking, the Court's statement is dictum. But Justice Powell expressly relied on the Court's decision last term in Aberdeen & Rockfish R.R. Co. v. SCRAP (SCRAP II),²⁴ stating:

[A]s we noted last Term, under the first sentence of § 102(2)(C) the moment at which an agency must have a final statement ready is "the time at which it makes a recommendation or report on a proposal for federal action."²⁵

In SCRAP II,²⁶ the Court explained its conclusion that the term "environmental impact statement" in § 102(2)(C) must mean final impact statement by observing that "no other kind of statement is mentioned in the statute." It continued:

Where an agency initiates federal action by publishing a proposal and then holding hearings on the proposal, the [6 ELR 10166] statute would appear to require a [final] impact statement to be included in the proposal and to be considered at the hearing.

The current agency practive is to accompany proposals by draft impact statements.²⁷ Thus, the Court appears to be insisting on earlier administrative consideration of environmental factors by requiring earlier preparation of final statements. That the Court intended such a result is indicated by a footnote in which it expressly mentioned NEPA's goal of insuring agency consideration of environmental factors during proposal evolution:

[Section 102(2)(C)] states that prior to preparing the impact statement the responsible official shall "consult with and obtain the comments of any federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved." Thus, the section contemplates consideration of environmental factors by agencies during the evolution of a report or recommendation on a proposal.²⁸

Likewise, the conclusion that the Court in fact intended to mandate earlier final statement preparation in order to insure timely agency consideration of environmental issues is reinforced by the Court's observation that

[b]y requiring an impact statement Congress intended to assure the consideration of the environmental impact of agency decisionmaking during the development of a proposal or — as in this case — during the formulation of a position on a proposal submitted by private parties.²⁹

The Court did not suggest that pre-impact statement violations of NEPA duties are not judicially reviewable following impact statement issuance. The footnote quoted above continues:

[T]he time at which a court enters the process is when the report or recommendation on the proposal is made, and someone protests either the absence or the adequacy of the final impact statement. This is the point at which an agency's action has reached sufficient maturity to assure that judicial intervention will not hazard unnecessary disruption.

Thus under the Court's reading, NEPA does require comment and evaluation prior to impact statement issuance, and also requires final impact statements to appear simultaneously with recommended proposals. These duties are judicially enforceable, however, only in a post hoc challenge brought to test the statement's adequacy and the procedures governing its development. As the dissent suggested, this kind of delayed judicial intervention may result in the draconian remedy of project delay pending reconsideration of decisions, repeat of agency review and comment, and completion of final impact statements. Nonetheless, the Court deemed such effects in the aggregate less disruptive to the administrative process than the pre-proposal intervention which the D.C. Circuit had, in its view, attempted in this case.

Impact Statement Scope — The Use of Program Statements

The deeper issue in Kleppe concerns the extent to which NEPA may constrain agencies' discretion to shape programs and projects, and so impact statement scope. As noted earlier, plaintiffs argued to the court of appeals that NEPA imposes some comprehensive planning obligations on federal agencies. As applied to this case, the Supreme Court construed this contention either as a challenge to the adequacy of the individual and subregional impact statements filed by defendants on coal-related projects already approved or pending approval, or as an attack on defendants' decision not to prepare one comprehensive impact statement on all proposed projects in the region as defined by plaintiffs.³⁰

Since no Northern Great Plains specific-project impact statements were part of the record, the Court found it impossible to rule on its first view of the challenge. As to the other, it gave limited assent to the plaintiffs' premise that § 102(2)(C) "may require a comprehensive impact statement in certain situations…." The range of such situations, however, the Court viewed as limited by the "proposal" language in that section, so that at most a comprehensive or programmatic impact statement would have to cover all related proposals pending at one time. Said the Court³¹

[R]espondents appear to seek a comprehensive impact statement covering contemplated projects in the region as well as those that already have been proposed. The statute, however, speaks solely in terms of proposed actions; it does not require an agency to consider the possible environmental impacts of less imminent actions when preparing the impact statement on proposed actions.

Turning to the precise scope of a comprehensive impact statement, the Court ruled that determination of this matter "requires a high level of technical expertise and is properly left to the informed discretion of the responsible federal agencies,"³² subject to judicial review only upon a showing of arbitrariness. The Interior Department had, the Court observed, recently prepared a national coal leasing program impact statement and also, as plaintiffs stressed in oral argument, a "regional" impact statement on coal-related activities in the eastern Powder River coal formation, which covers most of northeastern Wyoming, but is a sub-unit of the Northern Great Plains region covered by the NGPRP and urged by plaintiffs as the proper area for programmatic environmental analysis. In this factual setting, the Court found Interior's refusal to prepare a statement on the entire Northern Great Plains region not to be arbitrary or capricious. On the basis of the record, it rejected plaintiffs' contention that in its NGPRP study Interior had recognized all activities in the Northern [6 ELR 10167] Great Plains region to be "programmatically" related Nor would the Court accept plaintiffs' assertion, again directly disputed by defendants, that all coal-related activities in the area were environmentally related because their environmental impacts — decreased water resources, air and water pollution, and secondary development effects — would prove cumulative on a region-wide basis. Finally, Justice Powell suggested that even if plaintiffs were correct in claiming that the environmental impacts would be region-wide, defendants might still be justified in restricting impact statement scope due to "practical considerations of feasibility …"³³ such as lack of adequate information for analysis.

The Supreme Court's handling of the programmatic impact statement scope issue is unconvincing. As for statutory construction, in addition to the ambiguity of the "proposal for major federal action" language in the first sentence of § 102(2)(C), the Court had no compelling basis for interpreting the sentence to bear on the scope, as well as the timing, of impact statement preparation. Such a reading flies in the face of an important aspect of NEPA's legislative history,³⁴ an aspect that reveals strong congressional concern with reforming the incremental agency decisionmaking that it viewed as leading by default to short-sighted foreclosure of alternatives and irremediable commitment of resources. The Senate Report on NEPA specifically cited the relationship between incremental thinking and environmental degradation:

As a result of … failure to formulate a comprehensive national policy, environmental decision making largely continues to proceed as it has in the past. Policy is established by default and inaction…. Important decisions concerning the use and the shape of man's future environment continue to be made in small but steady increments which perpetuate rather than avoid the recognized mistakes of previous decades.³⁵

The Court's reading ignored not only the legislative history but also the specific language in § 102(2)(C) that imposes on agencies a duty to analyze to the fullest extent possible project alternatives and irretrievable commitments of resources. More emphasis by the litigants on alternatives³⁶ might have convinced the Court that it would be unreasonable to read NEPA to limit impact statement scope to pending proposals. Coal-related development providesan excellent illustration of the limitations of such an approach, which allows the federal agency to adopt a wholly reactive posture, merely responding to whatever proposals private parties may choose to make at one time.

As plaintiffs pointed out, one environmentally sound alternative would be to plan the location of strip mines on a region-wide basis. Some parts of the NGP region are much more amenable to reclamation than others, and water resources vary throughout the region. Given these and other variables, the Northern Great Plains could be divided into mining priority regions, allowing near-term extraction only in areas in which overall environmental impacts are minimized. The decision whether to mine more fragile areas could thus be delayed for several years, permitting subsequent reevaluation in light of alternative energy source developments in the interim.

Limiting the impact statement on coal-related developments in the region to the haphazard group of proposals that private parties happen to have already made clearly cannot accomodate the wide-ranging consideration of alternatives that the congressional drafters of NEPA envisioned.

A disregard for NEPA's goals is also apparent in the Court's suggestion that considerations of "feasibility" might justify diminishing the scope of an environmental impact statement. Congress was well aware of the need to anticipate environmental problems in order to deal adequately with them; accordingly it made it clear that NEPA requires agencies to make predictions even where available information is incomplete.³⁷

Perhaps the most serious flaw in the Court's handling of impact statement scope was its reliance on the defendant agencies" "expertise" to determine their NEPA obligations. This ignores the central legislative history concerning the realities of bureaucratic behavior and agency "expertise" respecting the environment. Indeed, NEPA's primary aim was to reform agency behavior: the "action-forcing" § 102(2)(C) was added because of doubt that agencies would act on their own to make the reforms mandated by NEPA. And the first six years of NEPA experience with § 102(2)(C) have amply documented agencies' resistance to change, their lack of familiarity with environmental matters, and the fact that values as well as technical expertise are involved.³⁸

[6 ELR 10168]

In picking the defendant agencies as NEPA "experts," the Court bypassed the Council on Environmental Quality (CEQ) and the Environmental Protection Agency, the administrative agencies which Congress has invested with the responsibility of developing expertise with respect to impact statement requirements and other aspects of NEPA interpretation.³⁹ Likewise, the Court omitted all reference to the CEQ Guidelines, which specifically recommend comprehensive impact statements in the coal leasing situation.⁴⁰

The Court's disregard of CEQ is particularly unfortunate, since that agency might provide the key to a dilemma noted by the court of appeals and emphasized by the Supreme Court: if NEPA is read to permit easy challenges to federal agencies' determination of the scope of their environmental evaluations, an infinity of challenges is possible. A sensible solution would be for judges to rely greatly on expert CEQ determinations of the appropriate scope of agency impact statements. For this proposal to be workable, however, CEQ must begin to take a more active role than it has played over the last six years. Indeed, one may surmise that the Supreme Court ignored CEQ in Kleppe largely because of its passive record to date.

Conclusions

The Supreme Court decision in Kleppe is of mixed import for NEPA law. As regards programmatic impact statement timing, while rejecting application of the D.C. Circuit's four-part test to pre-program situations, the Court seemingly reiterated that final impact statement preparation must be completed earlier than is now the practice of administrative agencies.

The matter of program statement scope is more complicated. On the one hand the Court held that comprehensive statements need not cover anything beyond pending programs. On the other, it accepted plaintiffs' argument that NEPA sometimes requires a single programmatic impact statement to reach the limits of a number of concurrent proposals. Under this standard, federal agencies will often be able to shape their activities so as to minimize their NEPA obligations, but that is most likely to be true for agency actions consisting solely of approval of private proposals.⁴¹ Where, by contrast, an agency is considering a major, long-term program, the comprehensive impact statement standard of Kleppe will not necessarily let it off the hook. For example, while the Court rejected the D.C. Circuit's application of the four-part test from SIPI to the Kleppe no-proposal situation, it is far from clear that the Court would have reversed its use to determine when preparation of a comprehensive impact statement was required on the Atomic Energy Commission's conceded program for research and development of the breeder reactor.

Drawing back from the opinion, the observer is left with a negative impression of the Supreme Court's atttitude toward NEPA, its legislative history and the "common law" of its judicial implementation. As noted, the Court ignored six years of judicial construction of § 102(2)(C)'s ambiguous meaning, and made capricious use of the legislative history in reading the statute. It is perhaps this lack of respect for current NEPA jurisprudence, rather than the positions taken by the Court on the discrete issues, that will be the major message of the case for agencies and lower courts alike.

1. Sierra Club v. Morton, 514 F.2d 856, 5 ELR 20463 (D.C. Cir. 1975), rev'a sub nom. Kleppe v. Sierra Club, __ U.S. __, 6 ELR 20532 (U.S. June 28, 1976).

2. See, e.g., Symposium: Implementing NEPA's Substantive Goals, 6 ELR 50001-38 (Mar. 1976) (collecting authorities); Carter. National Environmental Policy Act: Critics Say Promise Unfulfilled, 193 Science 130 (July 9, 1976).

3. See note 1 supra.

4. U.S. Geological Survey Map, "Geologic Map of the Northern Great Plains," supplement to the Interior Department's Northern Great Plains Resources Program.

5. "[T]he Federal Government influences the development of nearly 80 percent of all western coal resources." Interior Department, BLM, Program Decision Option Document, Proposed Federal Coal Leasing Program 3 (Dec. 1975).

6. 30 U.S.C. §§ 181 et seq., ELR 41410 (in part) (1970 & Supp. IV, 1974).

7. Brief of Petitioners, No. 75-552, Kleppe v. Sierra Club, at 6. Copies of this brief are available from ELR (71 pp. $9.00, ELR Order No. 392-F). For a summary of the arguments raised in the brief, see ELR 65329-30.

8. Six national and local environmental groups, including the Sierra Club, the National Wildlife Federation, the Montana Wildlife Association, and the League of Women Voters of South Dakota.

9. The actions sought to be enjoined "included issuance grant or approval of coal prospecting and exploitation permits, coal mining leases, coal mining plans, water options and contracts, diversions of water from and placement of structures in navigable waterways, and permits for right-of-way." Brief of Respondents, No. 75-552, Kleppe v. Sierra Club, at 3. Copies of this brief are available from ELR (124 pp. $4.50, ELR Order No. 392-G). For a summary of the arguments raised in this brief, see ELR 65338.

10. 4 ELR 20247 (D.D.C. Feb. 14, 1974).

11. 514 F.2d 856, 5 ELR 20463 (D.C. Cir. 1975). For a discusion of the court of appeals decision, see Comment, Comprehensive Planning Under NEPA: D.C. Circuit Widens Applicability of Program Impact Statement, 5 ELR 10118 (1975).

12. In so doing, the court was to use the four-past test developed in Scientists' Institute for Public Information v. Atomic Energy Commission, 481 F.2d 1079, 3 ELR 20525 (D.C. Cir. 1973).

13. 5 ELR at 20464.

14. __ U.S. __, 6 ELR 20532 (June 28, 1976).

15. Id. at __, 6 ELR at 20536.

16. Id.

17. Id., at __, 6 ELR at 20539. Congressional and judicial figures long ago noticed NEPA's ambiguity. Rep. William Harsha opposed passage "of a measure that is so loose and ambiguous as this." 115 Cong. Rec. 40927 (Dec. 22, 1969). And Judge Feinberg of the Second Circuit observed that NEPA's meaning is more uncertain than that of most statutes because of its broad and general phrasing. Hanly v. Mitchell, 460 F.2d 640, 2 ELR 20216, 20217 (2d Cir. 1972).

18. From January 1, 1970 through March 1, 1973, a total of 363 NEPA lawsuits were brought against federal agencies. Over the same period, a total of 51 injunctions based on NEPA were issued against federal agencies. R. Liroff, NEPA and Its Aftermath: A National Policy for the Environment 134 Tables 4-7, 4-8 (1976).

19. See, e.g., Department of Agriculture, Forest Service, Title 8400, Guidelines for Preparation of Environmental Statements, § 8411, Actions requiring environmental statements, 39 Fed. Reg. 38249, ELR 46160; Department of Transportation Order 5610.1B, P7c, Timing of preparation of draft statements, 39 Fed. Reg. 35238 (Sept. 30, 1974), ELR 46141; Department of Defense, Army Corps of Engineers, Administrative Procedure: Environmental Impact Statements, 33 C.F.R. § 209.410(d)(2), (f), 39 Fed. Reg. 12738-39, ELR 46072-73; Environmental Protection Agency, Preparation of Environmental Impact Statements, Criteria for Determining When to Prepare an EIS, 40 C.F.R. § 6.200, ELR 46201; Nuclear Regulatory Commission, Licensing and Regulatory Policy and Procedures for Environmental Protection, Actions requiring preparation of environmental impact statements, 10 C.F.R. § 51.5(a), ELR 46129.

20. Council on Environmental Quality, Preparation of Environmental Impact Statements: Guidelines, 40 C.F.R. §§ 1500.3, 1500.6, 1500.7, 1500.9, ELR 46003-05.

22. The Court cited and summarized without comment SIPI, supra note 12, and Davis v. Morton, 469 F.2d 593, 2 ELR 20758 (10th Cir. 1972).

23. The 1976 U.S.C.A. volume contains 37 pages of federal court decision digests on "duties respecting [impact] statements."

24. 422 U.S. 289, 5 ELR 20418 (1975).

25. __ U.S. at __, 6 ELR at 20536 (first emphasis added; second emphasis in original).

26. 422 U.S. at 320, 5 ELR at 20435.

27. The CEQ Guidelines, 40 C.F.R. §§ 1500.9, 1500.10, ELR 46007, enshrine the current practice. See also, e.g., the regulations cited in note 19, supra. The General Counsel of the Nuclear Regulatory Commission expressed concern that CEQ's interpretation of SCRAP II would disturb the NRC's practice of issuing "a draft environmental impact statement at the time a proposed rule is published in the Federal Register." Letter from Peter L. Strauss to Gary Widman, CEQ General Counsel, Mar. 8 1976. Mr. Widman replied that NRC's practice was consistent with SCRAP II. Letter of Mar. 17, 1976.

28. __ U.S. at __ n. 15, 6 ELR at 20536 n. 15.

29. Id. at __, 6 ELR 20537.

30. Id. at __, 6 ELR at 20536.

31. Id at __ n. 20, 6 ELR at 20537 n. 20.

32. Id. at __, 6 ELR at 20537, citing SCRAP II.

33. Id. at __, 6 ELR at 20538.

34. The Supreme Court's selective reliance of the legislative history in this case illustrates the extent to which legislative history can become a hindrance rather than an aid to statutory construction. Nowhere in Kleppe did the Supreme Court advert to this aspect of the legislative history; instead, it based its interpretation solely on statutory language that is most nonspecific concerning impact statement scope. But cf. Train v. Colorado Public Interest Research Group, Inc., __ U.S. __, 6 ELR 20549 (June 1, 1976), a nearly contemporaneous decision in which the Court chose to rely exclusively on the legislative history in interpreting a seemingly plain legislative term. See Comment, High Court Concludes Water Act Was Not Intended to Affect Nuclear Regulatory Commission's Jurisdiction, 6 ELR 10169 (Aug. 1976).

35. S. Rep. No. 91-296, 91st Cong. 1st Sess. 5 (1969), quoted by the court of appeals, 5 ELR 20470. See Miller et al, The National Environmental Policy Act and Agency Policy Making: Neither Paper Tiger nor Straitjacket, 6 ELR 50020, 50032-22 (Mar. 1976) (summarizing the relevant legislative history).

36. Plaintiffs did discuss the matter of alternatives in their brief, but they might have forced the issue more had they not dropped their claim under § 102(2)(D) (now (E)) following the district court decision. Section 102(2)(E) specifically requires agency consideration of alternatives when a proposal involves "unresolved conflicts concerning resource use."

37. Congress' insistence on decision making reform, on anticipating problems, and on analyzing alternatives before they are foreclosed necessarily requires substantial forecasting. See S. Rep. No. 91-296, supra note 35, at 6.

38. Six years and literally hundreds of legal challenges to agency NEPA compliance testify amply to agencies' lack of enthusiasm for the changes required by the Act. See R. Liroff, supra note 18. The willingness of the courts to intervene provides a lever that often enables environmentalists within the agencies to make their voices heard. Id. at 141.

The Council on Environmental Quality (CEQ) recently reported that the Interior Department officials appear to have little commitment to NEPA. CEQ, Environmental Impact Statements: An Analysis of Six Years' Experience by Seventy Federal Agencies 24 (1976). Given such bureaucratic intertia, to let the agency determine NEPA obligations for itself is likely to emasculate the statute, as the court of appeals pointed out, 5 ELR at 20470. A comparison of Interior Department behavior in this case with its 1971 Gulf of Mexico OCS oil and gas lease sale illustrates the point. In the OCS oil leasing matter, the Department established a geographic program and prepared a comprehensive impact statement, only to have its efforts successfully challenged under NEPA for failure to address alternatives adequately, see Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 2 ELR 20029 (D.C. Cir. 1972). But as regards NGP coal leasing, the Department has avoided comprehensive planning for the development of NGP coal resources, and this case has found it in compliance with NEPA, though it has paid little or no attention to alternatives at the regional level.

39. Title 2 of NEPA, implemented by Executive Order 11514, ELR 45003, gives CEQ the responsibility of monitoring implementation of NEPA; CEQ under this authority issued the Guidelines discussed supra note 20. Section 309 of the 1970 Clean Air Act Amendments likewise gave EPA a role in reviewing impact statements. Numerous lower court decisions have held CEQ's Guidelines as entitled to great weight as the product of the agency charged with implementing and administering NEPA. See, e.g., Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1168, 2 ELR 20726 (6th Cir. 1972). And even the Supreme Court has recognized the CEQ's expertise. Warm Springs Dam Task Force v. Gribble, 94 S. Ct. 2542, 4 ELR 20666 (U.S.) (stay pending appeal) (Douglas, J.), stay aff'd per curiam, 418 U.S. 910, 4 ELR 20669 (1974).

40. 40 C.F.R. § 1500.6, ELR 46004-05.

41. Every Supreme Court NEPA case decided so far — SCRAP II, Kleppe and Flint Ridge Development Co. v. Scenic Rivers Ass'n, __ U.S. __, 6 ELR 20528 (June 24, 1976) — has involved a small federal "handle" on an essentially private primary proposal. It is in such situations that agencies may most easily avoid NEPA by declining to plan responses to private parties.

At first blush the decision on remand in Conservation Society of Southern Vermont v. Coleman, 6 ELR 20207 (2d Cir. 1976), may appear inconsistent, but in the Federal Aid Highway Program again the federal government's role is minor and passive compared to that of state authorities. Other cases do suggest, however, that federal agencies may be able to divide projects into small parts and thereby diminish the scope of their NEPA obligations. See, e.g., Sierra Club v. Callaway (Wallisville Dam/Trinity River), 449 F.2d 982, 4 ELR 20731 (5th Cir. 1974).