I. Introduction

The National Environmental Policy Act, if the legislative history which Congress left behind is to be believed, was aimed at the jugular of federal policy making. The Act sought to alter the very personality of government; the national environmental policy was supposed to permeate every other policy pursued by government. Thus Congress sought much more than the modification of specific multi-million dollar construction projects. The objective was profound and lasting policy changes through the introduction of environmental considerations to the earliest and highest levels of agency decision making. The key device to achieve these reforms is the now well-known impact statement process.

Until recently, agency officials and environmental litigants have used impact statements to concentrate almost solely on the details of specific projects and localized impacts, as opposed to programs and policies.¹ Highway projects have been challenged in numerous cases, but the highway program has not been evaluated in any meaningful way. The impact of specific coal mines has been discussed and nauseum, but the broader issues raised by coal leasing policy have not been seriously evaluated.² Integrating environmental values into agency programs and policy making poses numerous practical problems; the nature of bureaucracies is to resist radical change. Policy analysis must therefore be anti-bureaucratic or, as seems more likely, directed toward incremental change.³ Pressure for widening agency horizons must be supplied by forces outside the agency, by the public through the courts. But judicial review can only indirectly confront the substance of agency policies because of the traditional judicial concern for avoiding interference with the discretionary or political functions of executive agencies.

Judicial review can contribute to this fundamental reformation of agency decision making by promoting a new form of procedural compliance so as to achieve a greater stress on the substantive quality of environmental analysis. Such review must recognize that policy formation is often a dynamic, amorphous process. Rules for preparation of impact statements on policy must therefore be flexible enough to allow agencies to comply in different ways, but settled enough to assure that NEPA duties are take seriously and statements are prepared at the earliest possible time.

One recent and controversial judicial opinion considered the application of NEPA to policy and held that the Act requires coordinated planning.⁴ This rationale might go far toward making NEPA a genuine policy act. However, the issue was discussed as dictum and the case will soon be argued on appeal before the Supreme Court. If allowed to develop, this principle would be a valuable (but not crucial) new stage in NEPA's evolution, as will be discussed below.

Two less dramatic issues, however, pose much more pressing obstacles to the preparation of impact statements on programs and policies. First, agencies must decide at what stages in the evolution of an action to do impact statements. Obviously, an impact statement is not necessary every time an idea is proposed in a meeting of two or more federal officials. For many projects, however, the most environmentally significant decisions are made in the context of agency policy, far in advance of "action" decisions which commonly trigger impact statements. If these earlier issues are to be evaluated before the agency is committed to a particular policy, rules must be provided to address the timing problem.

A second practical problem in the preparation of impact statements on programs and policies is the appropriate division of agency activities. For any agency activity, an infinite number of permutations could be used as the basis for impact statements. For example, energy-related activities might be discussed by geographic source, by type of impact, and by any number of internal divisions and relationships between these categories. Some rational approach must be used to assure that all significant environmental effects are considered without requiring repetition or duplication.

Answers to these two problems, we believe, would greatly facilitate the preparation of impact statements [6 ELR 50021] on programs and policies. For purposes of discussion, a suggested approach to these problems will be provided first, followed by more detailed consideration of the issues involved.

We propose a two-step rule-making procedure for the application of NEPA to programs and policies. First, rule-making should be used to define the full range of agency activities in terms of their common environmental impacts. Comments by other agencies and the public can refine this process; the adequacy of issues covered would be subject to judicial review for reasonableness. Second, rule-making procedures should also be used to announce publicly, at the earliest possible time for each policy, program, or issue identified, the stages and times for which impact statements will be prepared and the likely scope of their contents. The results of these rule makings, once adopted, will amount to a protocol for compliance with NEPA. As agency rules, they would also be fully enforceable by the courts.

The general benefits to be gained from the use of rule making to develop agency policies and programs have long been recognized by administrative law scholars. The specific application of rule-making techniques to NEPA, however, requires a brief explanation. NEPA demands a detailed environmental analysis of every major federal action. Many significant issues must be considered on a case-by-case basis. At the same time, NEPA also contemplates evaluation of numerous issues which can be anticipated well in advance of a decision to act. For example, the Interior Department could formulate standards for control of acid mine drainage without reference to the leasing of any particular mine. Similar issues can be identified for every agency. Rule making also has utility for the development of procedures for integrating NEPA with the decision-making needs of different agencies. Questions like the timing of environmental analysis, the definition of programs for review, and the best means to involve the public can be aired and at least partially answered through tule making.

This approach is not presented as a panacea; difficult problems of implementation would undoubtedly remain. As with other stages of NEPA's development, meaningful agency compliance is likely to depend on pressure exerted by threats of litigation and the skillful exercise of oversight by the Council on Environmental Quality. But within the confines of existing administrative law doctrines, this strategy offers a reasonable and workable means to attain the policy reforms intended by NEPA's creators.

Before turning to the substance of our argument, some definition of terms is in order. Frequent mention will be made in this paper of "program" or "policy" impact statements. The meaning of these terms has already been implied by examples given above, e.g., the highway program as opposed to specific highway segments, or coal leasing policy as opposed to individual coal mines. Numerous connotations are suggested by these examples. One approach might focus on generic or common effects; another perspective might emphasize the cumulative effect of a chain of contemplated projects, a third the combined effect of different activities in the same geographic area. For reasons discussed later in this paper, a precise definition useful for NEPA purposes in all cases may not be possible. As a prelude to later arguments, we note that the criterion logically suggested by NEPA is the existence of significant environmental impacts not considered earlier in another context. The goal should be to achieve consideration of all significant environmental effects at the earliest feasible time with the minimum amount of duplicated effort.

II. NEPA and the Policy Making Process

As we indicated, in the National Environmental Policy Act of 1969 Congress announced the broad outline of an environmental policy to be followed by all agencies of the federal government. Unlike other environmental statutes, which addressed specific substantive problems like air, water and noise pollution, NEPA boldly focused on something much more fundamental; the process by which agencies make decisions. In a brief, sweeping statement, Congress simply supplemented the mandate of every agency to require consideration of environmental values in addition to the agencies traditional responsibilities.

Yet paradoxically, the "opaque" quality of NEPA's legislative record has often been discussed.⁵ However, Congress did clearly articulate its desire to reform the process of federal policy making, thereby altering the substantive outcomes. The Senate Report specifically cited the relationship between incremental thinking and environmental degradation.⁶ Past decision making was criticized for failing "to consider all relevant points of view and all relevant values in the planning of Federal activities."⁷ As one commentator has noted:

Congress was occupied with more cosmic issues involving fundamental policy choices with respect to environmental protection and regulation, rather than with the environmental ramifications of a particular dam, highway, or other federal construction project, or the details of preparing environmental statements.⁸

Congressional concern with broad policy reform was also evident in NEPA's operational or "action-forcing" provisions, the foremost among which is the impact statement requirement. Statements were expressly required for "regulations, policy statements, or expansion or revision of ongoing programs."⁹ The Committee Report and remarks during floor debates by Senator Jackson described the need for structural reform if the policies announced in NEPA were to be seriously addressed.¹⁰

[6 ELR 50022]

Reform of agency decision making was to be accomplished by "strategic intervention," an approach that was probably influenced by thinking within the Executive Branch.¹¹ Like program budgeting (PPBS) and Bureau of the Budget procedures for water resource projects, NEPA held out the promise of economic rationality in agency decision making; impact statements would serve a similar, though ecological, function. Program objectives would be spelled out, environmental effects identified, and possible alternatives delineated. The decision would then focus on the least environmentally damaging approach available to meet the desired objectives.¹² Conceivably, Congress might have intended that changes in policy would come about as the result of many small changes in agency activities. Such incremental changes certainly were also expected. But it would be unreasonable to assume that so much effort would be expended for so little leverage. It is much more realistic to view impact statements on programs and policies as the operational element of the Act's design, and therefore crucial to the law's success or failure.

III. The Nature of the Administrative Process

Administrative theorists generally characterize agency decision making in terms of less than optimal choice.¹³ In an ideal world, a rational choice would require selection of a goal, knowledge of all available alternatives for achieving that goal, and consideration of all the consequences of each alternative. Numerous real world limitations make that ideal unattainable, or even, some would suggest, undesirable.¹⁴ Goals are often not entirely clear in advance of projects; means and ends are blurred in a synergistic, evolutionary process.¹⁵ The costs of obtaining and processing information are too high to allow for an exhaustive search in every case, and to attempt to do so would paralyze the decision-making process. In short, decisions must be cut down to size. Moreover, even when information is available, the search and selection process is biased by the training, experience, and values of the decision makers.¹⁶ One common result, particularly with respect to environmental problems, is that long-term goals are sacrificed to short-term demands.¹⁷

Policy formulation, to the extent it can be generally described at all, is often a particularly unstructured and non-rational form of decision making

[F]ederal policy-making is notoriously political and amorphous…. Frequently policy is developed on the spur of the moment, or simply by default and inaction. In short, no meaningful federal policy may exist at all, as NEPA's legislative history makes plain… [p]olicy-making takes place in the White House, OMB, other branches of the Executive Office of the President, and of course, the agencies.¹⁸

As an additional obstacle to reform, the making of broad policy frequently involves political and interagency concerns that defy consideration by the usual "middle-echelon civil servants" responsible for impact statement preparation.¹⁹

While it is difficult to attribute policies to specific individuals or to pin-point a time when policies crystalize, appropriate forums for consideration of their environmental effects can be found. For all but the most exceptional policy initiatives, development of formal proposals requires use of bureaucratic information channels. Agency officials at this sub-cabinet level should be expected to see that environmental considerations are included in the policy analysis process. The great majority of agency activities, of course, are not novel. Many fundamental problems such as energy and transportation require programs lasting for years or even decades. By use of the modified rule-making procedures we suggested above, agencies can identify those problem areas fundamental to their activities. Impact statements on these issues might be prepared periodically and revised to reflect new information.²⁰

The use of statements evaluating general policy issues apart from specific programs has its limitations. Addressing problems in too general a fashion contributes [6 ELR 50023] nothing to the actual process of policy development while creating a facade of public openness.²¹ There is also frequently no vocal constituency for policy discussions. Agencies might spend considerable resources to prepare such statements only to find the issues repeated when a more concrete proposal is made.²² Thus, one agency argued in response to CEQ questions regarding the possibility of improved efficiency if statements were done on policy:

We have found that there is generally not sufficient information about the specific environmental impacts until project planning has progressed to the point where specific environmental impacts can be determined and understood by the public. Thus, we do not believe policy or program EIS's would ordinarily serve any of the purposes listed in the question.²³

The protocol procedure offers a compromise solution to the problem. Each agency can discuss policies relevant to its program experiences but the full range of alternatives must be considered, including those that extend beyond the agencies' jurisdiction.²⁴ Of course, coordinating statements when policies cross agency boundaries can be difficult. The lead agency procedure created by CEQ may be may be inadequate as a means of addressing issues like energy which are basic to the operation of several departments. Special inter-agency task forces may be necessary in these cases, perhaps with CEQ playing an active role in calling attention to interagency conflicts.²⁵

If no more appropriate forum is available, policy issues will arise in the context of budget proposals.²⁶ Preparation of impact statements on budget proposals may be awkward and inconvenient as a way to treat general policy issues. The timing and form of the budgetary process may impose significant constraints on the extent to which NEPA can be followed, even if the substantive decisions implied by budgets should be the subject of environmental analysis. Budget proposals do, however, serve as a possible "forum of last resort" if an agency is unable to find a more appropriate setting.

Regardless of the context in which policy is discussed, the practical problems of policy analysis are admittedly substantial.²⁷ An approach to the preparation of such statements must consider factors more difficult than those that arise from the usual discrete projects. Subject definition and timing pose particularly troublesome questions for policy statements.

IV. From Theory to Practice: Timing and Selection of Subjects for Impact Statements.

We have suggested that a modified rule-making procedure would help reduce practical problems of NEPA's implementation. However, if such a procedure is to work, judicial review of impact statement preparation must be flexible enough to free agencies from constantly redefining the timing and scope of their environmental analysis.

A. Statement "Timing"

NEPA does not specify exactly when in the evolution of a policy an impact statement must be prepared. An agency developing a program faces a dilemma. As Judge Wright has noted, the

[s]tatements must be written late enough in the process to contain meaningful information, but they must be written early enough so that whatever information is contained can practically serve as an input into the decision-making process.²⁸

The problem of information adequacy is usually discussed under the general rubric of statement "timing." The term "timing," however, may be misleading. The administrative process cannot be understood in terms of a magic moment when an impact statement suddenly becomes necessary. Since NEPA requires environmental analysis to be done more or less continuously, decisions on impact statement preparation will inevitably become factual judgments regarding relative differences in available information, potential effect on the environment, and possible irretrievable commitments of resources. These criteria are suggested by the CEQ Guidelines, which indicate that statements are to be done "as early as possible and in al cases prior to agency decision on … major Federal action significantly affecting the quality of the human environment…. Initial assessments … should be undertaken concurrently with initial technical and economic studies." Research and development programs are to be evaluated "before research activities have reached a stage of investment or commitment to implementation likely to determine subsequent development of restrict later alternatives."²⁹

Similar but more detailed analysis is contained on the liquid metal fast breeder reactor and coal leasing on the Northern Great Plains.³⁰ In these cases, Judge Wright enunciated fout factors relevant to a determination of ripeness:

[1] How likely is the technology to prove commercially feasible, and how soon will that occur? [2] To what extent is meaningful information presently available on the effects of application of the technology and of alternatives and their effects? [3] To what extent are irretrievable commitments being made and options precluded as the development program progresses? [4] How severe will be the environmental effects if the technology does prove commercially feasible.?³¹

We find this four-part test only moderately helpful. A judgment regarding expected project feasibility may be [6 ELR 50024] difficult to make and should not determine whether or not an impact statement is prepared so long as the project is being seriously considered. A large amount of investment in a project that is many years away may still foreclose research into other alternatives. Feasibility bears only on the level of detail that can reasonably be expected in the statement.

The extent of available information is also a somewhat misleading focus. Indeed, the court's opinion notes elsewhere that "one of the functions of a NEPA Statement is to indicate the extent to which environmental effects are essentially unknown…. Reasonable forecasting and speculation is thus implicit in NEPA."³² To this function one might also add that of generating information, by outside comment as well as agency experts. These criticisms also apply to the last to the last test, the severity of expected environmental effects if the program is implemented. The third test, the extent of irretrievable commitments and elimination of alternatives, is a useful inquiry, but the information it provides will often be ambiguous.

One commentator has suggested that the tests would be strengthened by reading in a "remoteness" criterion, an examination of the strength and directness of the connection between the current stage of planning and ths ultimate consequences.³³ However, it is difficult to see what this adds to the first and fourth elements of Judge Wright's analysis.

The four tests enunciated in SIPI are a good starting point for agencies faced with the timing problem. Research and development of breeder reactors was clearly covered by Judge Wright's analysis: a less certain result for projects lacking such severe environmental consequences indicates the complexity of the problem rather than the inadequacy of the approach.

Formulation of more precise guidance is certainly desirable and valuable, as the CEQ Guidelines have proved, for other problems of impact statement preparation. It is must more important, however, to turn attention away from impact statement procedure and towards the substance of agency policy making.

The elevation of form over substance is evident in the recent Supreme Court opinion in Aberdeen & Rockfish R. Co. v. SCRAP.³⁴ SCRAP reversed a three-judge district court decision that held inadequate the ICC's environmental impact statement on proposed increased rates for various categories of rail freight, including recyclables. The environmental litigants had alleged that the ICC gave inadequate attention to the implications of the rate increase on the costs of recyclable commodities.

By placing the entire weight of analysis on a determination of the "proposal" stage as the trigger for § 102(2)(C) requirements, the Court side-stepped the relevant environmental issue: whether or not the agency evaluated the environmental effects of the rate increase. Under its twisted analysis, an EIS on the "proposal" will come only after the policy decisions have been made.

The Supreme Court's decision can be rationalized with NEPA's purposes by noting the emphasis laid by the Court on consideration of the special problems of recyclable commodities in what it viewed as a more appropriate forum. While NEPA's intent would be better fulfilled by requiring that the broader policies be evaluated before specific rates or tariffs are assigned, the Court felt constrained by the peculiarities of the ICC's authority to avoid interfering with the structure of agency decision making. In other words, the environmental effects were being reviewed and could result in changes in the "action" or rate stage later. The facts also did not give reason to fear foreclosure of alternatives or significant irretrievable loss of resources. This holding therefore did not further NEPA's objectives, but agencies might be remiss if they modified their procedures based on an opinion distinguished by such special circumstances.³⁵

A rule-making approach could go far toward resolving timing problems by recognizing the essentially factual nature of the problem. The exact timing of impact statement preparation on programs as well as on new initiatives is ultimately best determined by each agency,³⁶ but public input and judicial review is necessary to assure that all impacts are covered. Some programs involve relatively stable impacts over time (e.g., on-going maintenance operations) whereas others may be rapidly changing. General guidance is therefore most valuable as a stimulus and aid for agencies developing their own detailed rules. Given the emphasis in NEPA on the earliest possible attention to environmental effects, the rule making should also be weighted by an assumption that the earliest feasible time is always to be preferred.

B. Program Definition

A second problem is to define what relationship between acts and decisions justifies collective treatment in an impact statement. Research programs, construction activities, and regulatory licensing activities usually provide an obvious boundary for the assessment of environmental impacts and alternatives. When activities are connected by a geographic, generic or other inter-dependence, however, a difficult problem may arise in determining which relationships between activities will justify a collective evaluation. One issue in some NEPA litigation has been whether a "program" exists at all, particularly when the challenged activities involve more than one agency or level of government with no apparent source of coordination. The complexity of the [6 ELR 50025] problem is best understood by delineating some types of situations in which "program and policy" statements should be prepared.³⁷

The CEQ Guidelines provide an excellent summary of several of the situations in which program statements may be appropriate:

Agencies should give careful attention to identifying and defining the purpose and scope of the action which would most appropriately serve as the subject of the statement. In many cases, broad program statements will be required in order to assess the environmental effects of a number of individual actions on a given geographical area (e.g., coal leases), or environmental impacts that are generic or common to a series of agency actions (e.g., maintenance or waste handling practices), or the overall impact of large-scale program or chain of contemplated projects (e.g., major lengths of highways as opposed to small segments).³⁸

The Guidelines also note the need for impact statements when individually minor but cumulatively significant resources are put into a project over a period of years, when a minor decision serves as a precedent for much larger actions, and when research and development activities may lead to the application of new technologies.³⁹ More generally, the Guidelines note the application of the Act to requests for appropriations and the making or modification of policy.⁴⁰ Where more than one agency is involved, the Guidelines indicate that the CEQ will "assist in resolving questions of responsibility for statement preparation…. Federal Regional Councils, agencies and the public are encouraged to bring to the attention of the Council and other relevant agencies appropriate situations where a geographic or regionally focused statement would be desirable because of the cumulative environmental effects likely to result from multi-agency actions in the area."⁴¹

The crucial unanswered question, however, is how to decide what constitute "appropriate situations." This problem was considered in the recent decision involving coal leasing on the Northern Great Plains.⁴² The court recognized that the absence of a "program" label cannot be determinative since activities otherwise requiring NEPA analysis would escape from the Act's requirements simply for lack of a proper title. The most difficult problem arises where agencies should but do not undertake coordinated comprehensive planning, as asserted in Sierra Club v. Morton. To ignore this situation would imply that "the less comprehensive planning an agency chooses to do, the less NEPA requires it to do. Such a reductio ad absurdum would make a mockery of the Act."⁴³ On the other hand, the court also noted that a potentially infinite variety of geographic or generic relationships might be found among federal projects. In response to this threat of endless litigation, the court concluded that agencies would be found in violation of NEPA only if their failure to plan was "arbitrary or capricious."

This lenient standard aside, the duty to coordinate and plan comprehensively is unlikely to be the basis for judicial action other than in extreme cases. The realities of citizen suit financing are such that environmental organizations are unlikely to press litigation over a random set of activities.⁴⁴ In order for environmental representatives to become sufficiently aroused to bring suit, there generally must be a cumulative impact sufficient for a court to find that a "program" in fact exists, even if several agencies are involved. For example, in the Northern Great Plains decision, the court concluded

[w]hen the federal government, through the exercise of its power to approve leases, mining plans, rights-of-way, and water option contracts, attempts to "control development" of a definite region, it is engaged in a regional program … whether it labels its attempts a "plan," a "program," or nothing at all.⁴⁵

Similarly, in Conservation Society of Southern Vermont v. Secretary of Transportation, the court held that improvement of a 20 mile segment of Route 7 could not proceed until a comprehensive EIS was prepared for the entire 280 mile highway because the larger project "is the expectation of state agencies with the knowledge and cooperation of the federal government."⁴⁶ Numerous other cases can be cited as examples of the same approach, although none of them involved situations where the government denied the existence of a "program."⁴⁷

Unfortunately, in numerous cases courts have applied [6 ELR 50026] a viability test much less favorable to environmental plaintiffs. In opinions like New Melones Dam⁴⁸ and Trout Unlimited,⁴⁹ the courts focused on the sufficiency of independent justifications for projects which plaintiffs asserted should be considered together. These opinions misconstrue NEPA's intent. The relevant question is whether the division of projects will result in the failure to evaluate cumulative effects and broad policy alternatives. The "viability" of highway segments and dam projectsis far less significant for NEPA purposes than the stage at which the policy governing them is evaluated. As one commentator has stated,

[w]hat difference does it make that each strip mine can exist separate from each other if the failure to consider them together makes it impossible to evaluate the total environmental impact or to choose between important alternatives?⁵⁰

This difference in emphasis underlies a vigorous dissent by Judge MacKinnon to the Northern Great Plains decision. The majority cited population influx and water resource issues as the type of cumulative impacts that would not be evaluated in impact statements on individual coal leases.⁵¹ The dissent argued that these impacts would not be made any more likely by one mine, and that therefore (despite the evidence of planned regional development) "[t]he proper time to consider such problems will be when the agencies move to a proposed type of development which does tax regional resources."⁵² Judge MacKinnon's analysis, although motivated by a legitimate concern for the energy sources at stake, ignores the type of consequential or cumulative impact NEPA was designed to prevent, or at least evaluate, by advance planning and consideration of long-term alternatives.⁵³

Contrast Judge MacKinnon's view with the attitude of some courts which have reviewed the major impact of several minor actions. Although essentially the same relationship between component activities and cumulative effects is being tested, the latter courts have readily found a need for further NEPA analysis.⁵⁴ For example, in Minnesota PIRG v. Butz,⁵⁵ the court held that the cumulative effect of individually minor logging activities amounted to a major action for NEPA purposes. As a result, "an impact statement should have been prepared on the management policy" even though it had been formulated several years earlier.

As we have already indicated, the selection of subjects for impact statements is another area where we believe rule making may have great utility. As with the issue of timing, significant discretion must be lift with agencies insofar as they divided their activities for purposes of impact statements. However, the adequacy of rule making must be judged against the legal test implicit in NEPA — are all significant environmental effects of federal activities encompassed by the agency's decision? In the special case where environmental effects result from a combination of agency actions which are not coordinated, NEPA should be interpreted to require coordination in order to prevent environmental issues from "falling through the cracks,"

C. Summary: The Role of Judicial Review

Judicial review of program statements could go far toward encouraging use of rule making as a means of facilitating compliance with NEPA. Our contention is this: an agency should be required to demonstrate that all significant environmental effects were evaluated in accordance with NEPA requirements at the earliest reasonable time. If so, whatever the specific form of agency decision making, the agency should be deemed to have adequately satisfied the demands of NEPA. As Judge Wright suggested in SIPI, the most likely was to do this will be regularized procedures for defining stages of and boundaries on impact statement preparation:

The first function of judicial review in this area should be to require the agency to provide a framework for principled decision making. Agencies engaging in long-term technology research and development programs should develop either formal or informal procedures for regular, perhaps annual, evaluation of whether the time for drafting a NEPA statement has arrived.⁵⁶

To avoid making NEPA a "paper tiger" or a "straitjacket" we would allow agencies the freedom to comply with § 102(2)(C) through rule makings, which they would administer within the legal requirements for sufficiency imposed by NEPA. This approach may be embodied in judicial opinions in environmental cases discussing the "hard look" doctrine.⁵⁷ Agency creation of a "negative impact" statement can also be viewed as an application of this approach.⁵⁸

V. The Impact of NEPA on Policy-Level Decision Making: Some Concluding Thoughts

NEPA was passed because agencies were not giving adequate consideration to environmental values in their decision making. While impact statements created a procedure for the consideration of environmental impacts, there was no assurance that agencies would react favorably to this attack on their past practices. Not [6 ELR 50027] suprisingly, many agencies were not receptive to NEPA's mandate.

Because the changes which NEPA demanded at the policy level were the most dramatic, one might expect agency compliance in that area to have come most slowly. That has in fact been true. Not only have relatively few impact statements been done on programs and policies, but the treatment of important policy issues has in general been judged a weakness of NEPA's implementation. For example, the Trans-Alaska Pipeline was the subject of perhaps the most expensive impact statement ever prepared. Yet some commentators believe that "the Impact Statement had no effect on the ultimate decision to issue the requested permits."⁵⁹ A review by the Impact Assessment Project was also highly critical of the policy evaluation done by the Bureau of Land Management in an impact statement on coal leasing.⁶⁰ Summarizing the situation, numerous NEPA scholars have noted a general deficiency in past efforts to apply NEPA to policy.⁶¹

Commentators are less well agreed, however, about the ultimate chances of successfully applying NEPA to policy. In looking for a change-inducing mechanism, reviewers of NEPA's implementation generally focus on two factors: internal pressure from within the agencies generated by environmental offices created to satisfy NEPA requirements, and external pressure applied by the courts.⁶²

Assuming that these two explanations are in fact important, the impact of NEPA might not be expected to be as great on policy-level decisions as on projects, because the former are made in ways that may not be as affected by either environmental offices or judicial review. Environmental offices are likely to have an opportunity for input at the policy level, but only as one voice among a much louder chorus. Without implementation authority, policy evaluators must use their scarce resources sparingly to avoid being isolated from actual policy making.⁶³

Environmental "insiders" are not likely to be effective unless they can point to the threat of litigation if their counsel is not obeyed. The ultimate pressure for agency adherence to NEPA's mandate would therefore seem to come from the courts. As we said earlier, judicial supervision of impact statements on policy is likely to be more limited than that on projects. This is so for several reasons. First, because the impacts of many policies are by nature not readily subject to quantification, the level of detail required in their evaluation is likely to be less demanding.⁶⁴

Second, even though courts can be expected to enforce procedural requirements that agencies evaluate all reasonably available alternatives, the substance of policy discussions may be viewed as within the traditional discretionary functions of the Executive Branch.⁶⁵ Since Congress has not clearly delineated the relative weights to be given different policies, the courts [6 ELR 50028] have held that the considerable deference to agency interpretations is appropriate.⁶⁶

Third, the recent opinion of the Supreme Court in SCRAP II has clouded the role of NEPA in supplementing agency authority to act upon environmental considerations.⁶⁷ The same issue is being litigated in a case involving the authority of the Food and Drug Administration to ban the use of plastic bottles.⁶⁸ An adverse ruling in this case could be a significant disincentive to consideration of broad environmental policies.

Finally, for many issues the consideration of broad policy alternatives may be significantly constrained by congressional deliberations supporting the agency's traditional mandate. In cases where Congress has thoroughly evaluated the environmental consequences of a policy decision, a good argument can be made that NEPA's value for policy analysis has been largely satisfied and no useful function would be served by further agency discussion.⁶⁹ Indeed, congressional resolution of social choice problems, as, for example, the Trans-Alaskan pipeline controversy, is the most appropriate solution.

In most cases, however, Congress does not speak explicitly to environmental matters. Congress is ill-equipped to make the "finely tuned balancing analysis" mandated by NEPA for every program and project. By assuring that the widest range of alternatives is considered, rule making enforced by judicial review would further, rather than hinder, congressional deliberations.⁷⁰ From the perspective of agencies faced with the obligation to do policy planning, the most reasonable rule would be to require consideration of all alternatives unless specifically rejected by Congress.⁷¹ Agencies should also be expected to analyze information that becomes available after congressional deliberations.⁷² The danger is that courts will defer to Congress even when policies were not subjected to the evaluation of decision making mandated in NEPA.

Despite these forces undermining NEPA's application to policy making, several other incentives do exist that provide some expectation of a more promising future. First, preparing statements on policy can be a way to reduce excessive paperwork by discussing common issues in a single forum. At least one court⁷³ has recognized that the existence of a comprehensive planning effort is a justification for some delay in the preparation of impact statements on more specific actions. Second, there is always the threat of judicial review of impact statements at the project stage, at which time the lack of environmental analysis may be cause for expensive and disruptive delays in agency programs. Although the remedy is draconian, courts have in fact halted programs on this basis.⁷⁴

Ultimately, however, the greatest promise for environmental analysis in policy making lies in agency recognition that NEPA's procedures can be beneficial. In a growing number of cases, agencies have used the impact statement as a basis for policy making. The Forest Service, for example, has prepared an environmental analysis for all its activities.⁷⁵ In recent testimony before a House Subcommittee, Russell Peterson cited numerous cases where impact statements had served as the vehicle for evaluation of a significant policy issue, including the Department of Transportation's decision to reject funding for I-66.⁷⁶ Even more recently, the decision to delay landing approval for the supersonic transport was based on analysis contained in the environmental impact statement.⁷⁷ In some of these cases judicial review played an important role in the policy-making process, but we view that as a strength, not a weakness of the system. The important point is that NEPA was used as a mechanism for policy evaluation.

Some of these examples may in reality overstate the actual impact of NEPA. Distinguishing the effects of NEPA from other sources of agency behavior is a difficult task, even for those who actually participated in the decision-making process.⁷⁸ At least a few of these cases, however, include a sufficient record to support the belief that NEPA actually played a central role in the policy formulation process.

Why has NEPA been successful in these cases and not in others? This question defies an easy answer. Experience in the Department of Transportation suggests the possible importance of at least two factors. First, the Department has an environmental policy staff with overall responsibility for review of impact statements produced by operating administrations. As the result of a departmental order issued shortly after NEPA's bassage,⁷⁹ the Office of Environmental Analysis exercises a form of veto power over the issuance of impact statements done within the agency. While the use of [6 ELR 50029] this authority is tempered by the knowledge that the order could theoretically be revoked at any time, line agencies also are limited in the number of times and type of cases in which they can reasonably demand the Secretary's attention to appeal a "veto" decision by the environmental analysis unit. A bargaining situation therefore exists in which advocates of environmental objections are not powerless.

A second factor is the importance of agency commitment to projects far along in development, particularly where planning was initiated prior to NEPA's passage. Projects that have been in the planning stages for many years, as in the case of numerous highway projects, are less likely to be affected by compliance with NEPA procedures.⁸⁰ The potential for meaningful environmental analysis of policy initiatives begun after 1970 may be far greater.

Detailed study of agency policy making processes is essential if NEPA's greatest designs are to be realized. As a focus for future research, "policy making" must be removed from its black box.⁸¹ The complete integration of NEPA with agency decision making, the key step in fulfillment of the Act's objectives, awaits this further level of understanding.

Frederick R. Anderson received an AB from the University of North Carolina in 1963, BA in Jurisprudence from Oxford University in 1965 and JD from Harvard in 1968. He is Adjunct Professor of Law at George Washington University National Law Center, Executive Director of the Environmental Law Institute, and author of NEPA in the Courts: A Legal Analysis of the National Environmental Policy Act, (1973).

Richard A. Liroff received his BA from Brandeis in 1969, MA in Political Science from Northwestern University in 1970, and is a candidate for a doctoral degree in Political Science from Northwestern University. Liroff is author of NEPA and Its Aftermath: The Formation of a National Policy for the Environment (forthcoming, Indiana University Press) and is staff Political Scientist at the Environmental Law Institute.

1. For a summary of agency preparation of program statements, see Environmental Quality, The Fifth Annual Report of the Council on Environmental Quality 392-93 (1974). CEQ has also recently surveyed agency procedures for the integration of projects or programs with NEPA requirements.

2. See infra n. 60.

3. See generally Wildavsky, The Self Evaluating Organization, 32 Pub. Ad. Rev. 509 (1972).

4. Sierra Club v. Morton, 514 F.2d 856, 5 ELR 20463 (D.C. Cir. 1975), pet. for cert. granted, 44 U.S.L.W. 3389 (U.S. Jan. 12, 1976).

5. City of New York v. United States. 337 F. Supp. 150, 159, 2 ELR 20275 (E.D.N.Y. 1972) (three-judge court).

6. 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. Environmental problems are only dealt with when they reach crisis proportions. Public desires and aspirations are seldom consulted. Important decisions concerning the use and the shape of man's future environment continue to be made in small but steady increments which perpetitate rather than avoid the recognized mistakes of previous decades.

Today it is clear that we cannot continue on this course.

S. Rep. No. 91-296, 91st Cong., 1st Sess. 5 (1969). See also id. at 8-9.

7. 115 Cong. Rec. 40419-20 (Dec. 20, 1969).

8. Jordan, Alternatives Under NEPA: Loward an Accommodation, 3 Ecol. L.Q. 705, 712 (1973) [hereafter cited as Jordan. Alternatives].

9. S. Rep. No. 91-296, 91st Cong., 1st Sess 5 (1969).

10. 115 Cong., Rec. 3702 (1969). Hearings on S. 1075, S. 237, and S. 1752 before the Senate Interior and Insular Affairs Comm., 91st Cong., 1st Sess. 15 (1969).

11. See R. Liroff, NEPA and Its Aftermath; The Formation of a National Policy for the Environment 27-28 (1975) (pre-publication manuscript) [hereafter cited as Liroff]; Ingram & Dreyfus, The National Environmental Policy Act: A View of Intent and Practice, Nat. Res. J. (forthcoming May 1976).

12. See Joint Hearings on the National Environmental Policy Act before the Sen. Comm. on Public Works and the Sen. Comm. on Interior and Insular Affairs, 92d Cong., 2d Sess. 390-400 (1972) [hereafter cited as 1972 NEPA Hearings]. The merits of using impact statements to record all aspects of agency decisions, as opposed to focusing on environmental considerations, remains a debated subject. See generally F. Anderson, NEPA In the Courts 254-56 (1973).

13. See generally the summaries of administrative behavior in Liroff, supra n. 11 at 114-27, and R.N.L. Andrews, Environmental Policy and Administrative Change: The National Environmental Policy Act of 1969 (unpublished doctoral dissertation, Department of City and Regional Planning, University of North Carolina, 1972).

14. See 1972 NEPA Hearings, supra n. 12 at 394 (testimony of R. Cramton); Lindblom, The Science of Muddling Through, 19 Pub. Ad. Rev. 79 (1959); Cramton & Berg, On Leading a Horse to Water: NEPA and the Federal Bureaucracy, 71 Mich. L. Rev. 511, 514-17 (1973).

15. Caldwell, "The Public Administration of Environmental Quality," in Environmental Polities 278 (Nagel, ed. 1974).

16. 1972 NEPA Hearings, supra n. 12 at 391.

17. Stillman, "Ecological Problems, Political Theory, and Public Policy," om Environmental Polities 49, 50 (Nagel, ed. 1974).

18. Comment, NEPA and Federal Policy-Making: NRDC v. Morton, Legislative Impact Statements, and Better NEPA Procedures, 2 ELR 10038, 10042-43 (1972).

19. Jordan, Alternatives, supra n. 8 at 732.

20. This revision requirement demands more than just cosmetic change. Policy is constantly being made and re-made, and as new considerations arise new impact statements may also be necessary. See Anderson, "The National Environmental Policy Act, in Federal Environmental Law 365 (Dolgin & Guilbert eds. 1974) The following criteria for reassessment of continuing actions were suggested by the Environmental Impact Assessement Project Workshop on Substantive Guidelines for EIS, Billings, Montana, June 1-5, 1975:

(a) There is substantial change in the nature, scale, or rate of application of the action.

(b) Impacts are found to be significantly greater or of a different nature than forecast.

(c) New information would substantially alter judgments.

(d) The action is undergoing reassessment within the management processes of the federal government, such as annual budget preparation, or formal program review within the agency or by OMB.

(e) Ten years (or some other arbitrary number) has elapsed since the last previous assessment.

For a valuable discussion of these issues and of the general utility of applying rule making to NEPA, see Environmental Quality. The Third Annual Report of the Council Environmental Quality 227-30 (1972).

21. The Secretary of Transportation's Statement of National Transportation Policy may be an example of a policy statement without much substance. (Dept. of Transportation, Sept. 17, 1975).

22. The significance of a constituency outside the agency for impact statements is discussed below. See infra at 50025-50026.

23. Department of Transportation response to 1975 CEQ survey of agency compliance with NEPA.

24. Natural Resources Defense Council v. Morton, 458 F.2d 827, 2 ELR 20029 (D.C. Cir. 1972).

25. For a discussion of possible means to implement this concept see Comment, supra n. 18.

26. See the recent opinion in Sierra Club v. Morton, 395 F. Supp. 1187, 5 ELR 20383 (D.D.C. June 6, 1975), holding that NEPA applies to budget requests. See also Comment, United States District Court Extends Impact Statement to Annual Budget Request, 5 ELR 10123 (1975).

27. In this context, see Wildavsky, "Rescuing Policy Analysis from PPBS," in Public Expenditures and Policy Analysis 461 (Haveman & Margolis eds. 1970).

28. Scientists Institute for Public Information v. AEC, 481 F.2d 1079, 1094, 3 ELR 20525, 20532 (D.C. Cir. 1973).

29. 40 C.F.R. § 1500.2, ELR 46003.

30. Scientists Institute for Public Information v. AEC, 481 F.2d 1079, 3 ELR 20525 (D.C. Cir. 1973); Sierra Club. v. Morton, 514 F.2d 856, 5 ELR 20463 (D.C. Cir. 1975).

31. 481 F.2d at 1094. Numbers in brackets added.

32. 481 F.2d at 1092. See also City of Davis v. Coleman, __ F.2d __, 5 ELR 20633 (9th Cir. 1975), which emphasizes NEPA's function of teasing out "potentially serious but nonobvious environmental impacts," and Comment, The Ninth Circuit Relaxes NEPA Standing in the Highway-Triggered Private Development Context, 5 ELR 20463 (1975).

33. Note, 87 Har. L. Rev. 1050, 1056 (1974).

34. 422 U.S. 289, 5 ELR 20418 (June 24, 1975).

35. See Comment, SCRAP II: No Excuse for NEPA Foot-Dragging, 5 ELR 10126, 10030-31 (1975). See also Testimony of Frederick R. Anderson before the House Subcomm, on Fisheries and Wildlife and the Environment, Comm. on Merchant Marine and Fisheries (Sept. 26, 1975) [hereafter cites as 1975 NEPA Hearings].

36. See, e.g., Statement of John McGuire, 1975 NEPA Hearings, supra n. 35 at 5 (three-tier approach used by Forest Service to evaluate National Forest System). Cf. Scientists Institute for Public Information v. AEC, 481 F.2d 1079, 1092, 3 ELR 20525 (D.C. Cir. 1973) "NEPA statements can and do vary, from relatively short and simple analysis of the environmental effects of smaller projects to compley multivolume works for projects of multi-billion-dollar dimensions."

37. One approach to the problem currently being considered at CEQ is to categorize all agency actions in a hierarchy. The theory underlying this approach is that once "actions" are categorized, regardless of the specific breakdown used, questions of interrelationships and timing could be addressed in a much more rational fashion.

We question whether agency activities in general, and policy considerations in particular, are sufficiently static for this classification effort to be worthwhile. See, e.g., Statement of George Turcott, 1975 NEPA Hearings, supra n. 35 at 6. Even if this approach were partially successful, however, the fundamental issue of choice among "actions" for purposes of impact statement preparation would remain. "Obviously, all highways in the country should not be considered in one environmental statement merely because they relate in the sense they all connect." Bruce Terris, ALI-ABA Course of Study on Environmental Law 6 (Jan. 16, 1975). The reason these problems continue to plague the agencies is that environmental planning is not being done at an early state Early use of rule-making procedures is more likely to be of value in any specific case.

38. 40 C.F.R. § 1500.6(d)(1), ELR 46005.

39. 40 C.F.R. § 15006(a), (d)(2), ELR 46004, 46005.

40. 40 C.F.R. § 1500.5, ELR 46004.

41. 40 C.F.R. § 1500.7(b), ELR 46006.

42. Sierra Club v. Morton, 514 F.2d 856, 5 ELR 20463 (D.C. Cir. June 16, 1975). See Comment, Comprehensive Planning Under NEPA: D.C. Circuit Widens Applicability of Program Impact Statement, 5 ELR 10118 (1975).

43. 514 F.2d at 875, 5 ELR at 20470.

44. For examples of the high costs of litigating citizen suits, see Environmental Law Institute, Enforcement of Federal and State Water Pollution Controls, A Report to the National Commission on Water Quality 338-48, 1178-82 (1975).

45. 514 F.2d at 878, 5 ELR at 20472.

46. 508 F.2d 927, 5 ELR 20068 (2d Cir. 1974), rev'd per curiam on other grounds, __ U.S. __, 6 ELR 20068 (Oct. 6, 1975).

47. See, e.g., Natural Resources Defense Council v. TVA, 367 F. Supp. 122, 3 ELR 20455 (E.D. Tenn. 1973), 367 F. Supp. 128, 3 ELR 20724 (E.D. Tenn. 1973), aff'd, 502 F.2d 852, 4 ELR 20737 (6th Cir. 1974); Natural Resources Defense Council v. Morton, 388 F. Supp. 829, 5 ELR 20327 (D.D.C. 1974); Minnesota PIRG v. Butz, 358 F. Supp. 584, 3 ELR 20457 (D. Minn. 1973), aff'd, 498 F.2d 1314, 4 ELR 20700 (8th Cir. 1974); Stop H-3 Ass'n v. Volpe, 2 ELR 20648 (D. Hawaii 1972); Atchison, Topeka & Santa Fe Railway Co. v. Callaway, 382 F. Supp. 610, 5 ELR 20086 (D.D.C. 1974); Sierra Club v. Morton, 510 F.2d 813, 5 ELR 20249 (5th Cir. Mar. 27, 1975); Conservation Society of Southern Vermont v. Secretary of Transportation, 362 F. Supp. 627, 3 ELR 20709 (D. Vt. 1973), 508 F.2d 927, 5 ELR 20068 (2d Cir. 1974).

48. Environmental Defense Fund v. Armstrong, 487 F.2d 814.4 ELR 20001 (9th Cir. 1973).

49. Trout Unlimited v. Morton, 509 F.2d 1275, 5 ELR 20151 (9th Cir. 1974).

50. Statement before the ALI-ABA Course Study, supra n. 37 at 9 (Jan. 16, 1975).

51. 514 F.2d at 877, 5 ELR 20472.

52. 514 F.2d 889, 5 ELR at 20478, n. 12.

53. See supra at 50020-50021. Judge MacKinnon's analysis seems more relevant to the issue of whether or not to issue an injunction than to whether or not an EIS should be prepared. The majority did not find a comprehensive injunction necessary since the decision to prepare a statement was referred back to the agency. 514 F.2d at 883, 5 ELR at 20474-75. A partial injunction was removed by the Supreme Court. 44 U.S.L.W. 3397 (U.S. Jan. 12, 1976).

54. For a summary of these cases see id., 514 F.2d at 870-871, 5 ELR at 20468.

55. 358 F. Supp. 584, 3 ELR 20457 (D. Minn. 1973). See generally F. Anderson, NEPA in the Courts 176-78 (1973).

56. 481 F.2d at 1094, 3 ELR at 20533. See also id. at 1091-92, 3 ELR at 20531: "The range of actions covered by NEPA … is exceedingly broad…. The issues, format, length and detail of impact statements for actions as diverse as these must of course differ. NEPA is not a paper tiger, but neither is it a straitjacket." Cf. Sierra Club v. Morton, 514 F.2d at 882 n. 36, 5 ELR at 20474.

57. See generally Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 Pa. L. Rev. 509 (1974); Liroff, supra n. 11 at 238-53.

58. See discussion in Sierra Club v. Morton, 514 F.2d at 881-82, 5 ELR at 20474; Scientists' Institute for Public Information v. AEC, 481 F.2d at 1094-95, 3 ELR at 20533; Thompson, "The Role of the Courts," in Federal Environmental Law 194-199 (Dolgin & Guilberts eds. 1974).

59. Myers, Federal Decisionmaking and the Trans-Alaska Pipeline, 4 Ecol. L.Q. 915, 948 (1975). But see Peterson, 1975 NEPA Hearings, supra n. 35 at 4. The pipeline might be distinguished as a case where the government's function was only to license the project and that therefore all planning was done by private industry. There seems no reason, however, why rule making could not be used to generate an acceptable procedure well in advance of the licensing decision, particularly in an instance where the general shape of a project is known as far in advance as was the pipeline's. Private industry could request the rule making in anticipation of a licensing application.

60. "This EIS … is directed more to the coal leasing system or method than to coal leasing policy…. It appears the Department [of the Interior] wishes to renew federal leasing, without public scrutiny of either of the tremendously significant coal/energy policy questions or of the impacts which may result." Environmental Impact Assessment Project, A Scientific and Policy Review of the Draft Environmental Impact Statement for the Proposed Coal Leasing Program of the Bureau of Land Management, Department of the Interior 8, 9 (K. Fletcher ed. 1974).

61. See e.g., Jordan, Alternatives, supra n. 8 at 736-37, 754-57; A. Wichelman, Federal Agency Implementation of the National Environmental Policy Act of 1969: Toward a Framework for Explaining Differential Responses 54-55 (unpublished paper prepared for delivery at the 1975 Annual Meeting of the Western Political Science Association, Seattle, Washington, March 20-22, 1975); Comment, The National Environmental Policy Act Applied to Policy-Level Decisionmaking. 3 Ecol. L.Q. 799 (1973); Strohbehn, NEPA's Impact on Federal Decisionmaking: Examples of Non-Compliance and Suggestions for Change, 4 Ecol. L.Q. 94, 107 (1974); Sax, The Unhappy Truth About NEPA, 26 Okla. L. Rev. 239 (1973).

62. See Liroff, supra n. 11; Andrews, supra n. 13; Wichelman, supra n. 61.

63. See Wildavsky, supra n. 3.

64. Although the issue was quantification of a project rather than a policy, the reasoning of the court in Environmental Defense Fund v. Corps of Engineers, 492 F.2d 1123, 4 ELR 20329 (5th Cir. 1974) is illustrative. In that case plaintiffs challenged the adequacy of the impact statement on the Tennessee-Tombigbee Waterway. The Fifth Circuit rejected arguments that NEPA required a mathematical comparison of costs and benefits: detail was held limited by available methods for policy evaluation.

The Council on Environmental Quality can also facilitate policy planning by funding development of some of the necessary planning instruments. Agencies have been partly excused from the evaluation of environmental impacts because of the lack of information and means to do so. By assisting in the creation of analytic tools and methods, the Council can help reduce this problem. The Council recently participated, along with several other agencies, in the creation of this type of instrument for energy analysis, the Matrix of Environmental Residuals for Energy Systems (MERES) In a computerized data bank form, the system attempts to identify the available knowledge on the known environmental effects of present and future energy systems. In announcing the availability of MERES to agencies, Council Chairman Russell Peterson noted the usefulness of the information provided as a basic reference document for impact statements, leaving agencies free to "concentrate in depth on the reasonable alternatives to the specific project or program proposal." Press Release, CEQ Aug. 1975. See also Environmental Quality, Fifth Annual Report of the Council on Environmental Quality (1974). An analysis of impact statement issues could also readily identify other candidates for this type of research, for example, transportation and non-fuel mineral consumption. Cf. Wichelman, supra n. 61 at 34 (agencies more anxious to collect data than to integrate it into decisions); Myers, supra n. 59 at 955 (policy issues involved in Trans-Alaska pipeline were not subject to measurement and impact statement discussion, and therefore did not affect decision making).

A further qualification on the necessity for detailed discussion is that in some agencies any environmental analysis is revolutionary. See e.g., Natural Resources Defense Council v. SEC. 389 F. Supp. 689, 5 ELR 20074 (D.D.C. 1974) (application of NEPA to the Securities and Exchange Comm'n); Sierra Club v. AEC, 4 ELR 20685 (D.D.C. 1974) (application of NEPA to the Export-Import Bank); Like, Turning Down the GNP, 15 Environment 6 (1973) (application of NEPA to the Federal Reserve Board).

65. See Jordan, Alternatives, supra n. 8 at 737; Life of the Land v. Brinegar, 485 F.2d 460, 3 ELR 20811 (9th Cir. 1973). But see Sierra Club v. Morton, 395 F. Supp. 1187, 5 ELR 20383 (D.D.C. June 1975), where the court held that appropriations proposals are a type of communication made after policy has been adopted and therefore are disclosable under the Freedom of Information Act.

66. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 1 ELR 20110 (1970). See also Thompson, supra n. 58 at 205.

67. see 5 ELR at 20426, n. 21 and n. 34-35, supra and accompanying text. Recently, however, the SEC announced that NEPA adds to its authority and responsibility. 40 Fed. Reg. 51656-70 (Nov. 6, 1975).

68. Environmental Defense Fund v. Weinberger, No. 75-1444 (D.C. Cir. filed May 5, 1975). For a discussion of the issues raised by this case, see Comment, NEPA's Power to Amend Other Laws: EDF Seeks to Compel the FDA to Consider Environmental Criteria, 5 ELR 10104 (1975).

69. See Cape Henry Bird Club v. Laird, 359 F. Supp. 404, 3 ELR 20571 (W.D. Va. 1973); Environmental Defense Fund v. TVA, 371 F. Supp. 1004, 4 ELR 20120 (E.D. Tenn. 1973); Comment, supra n. 61 at 839. Congress could simplify matters by requiring environmental analysis of its own decision making. See generally F. Anderson, NEPA in the Courts, 125-33 (1973).

70. See e.g., Hillhouse, "The Federal Law of Water Resources Development," in Federal Environmental Law 844, 878-82 (Dolgin & Guilbert eds. 1974) and cases cited therein.

71. Comment, supra n. 61 at 839. See also Environmental Defense Fund, v. Corps, 492 F.2d 1123, 4 ELR 20329 (5th Cir. 1974). But see Muskie & Cutler, A National Environmental Policy Act: Now You See It, Now You Don't, 25 Maine L. Rev. 163, 188-192 (1973).

72. See n. 20 supra.

73. Biderman v. Morton, 507 F.2d 396, 5 ELR 20027 (2d Cir. 1974).

74. Natural Resources Defense Council, v. Morton, 458 F.2d 827, 2 ELR 20029 (D.C. Cir. 1972), See also Comment, supra n. 18 at 10040.

75. Environmental Quality, The Fifth Annual Report of the Council on Environmental Quality 381 (1974); McGuire, 1975 NEPA Hearings, supra n. 35 at 5-6.

76. Peterson, 1975 NEPA Hearings, supra n. 35 at 4-7.

77. Press Release and Public Hearing Announcement. Dept. of Transportation, Nov. 13, 1975.

78. See Liroff, supra n. 11 at 123-27.

79. Department of Transportation Order 5610.1B, Feb. 26, 1970.

80. See Ingram & Dreyfus, supra n. 11 at 24-26. Cf. McIntyre Statement, 1975 NEPA Hearings, supra n. 35, at 7-8. It should be noted, however, that the I-66 issue substantially pre-dated NEPA's passage.

81. Political scientists have already made significant contributions to this field. See, e.g., R. Bauer & K. Gergin (eds.). The Study of Policy Formation (1968). The relationship between the procedural and structural changes mandated by NEPA and the substance of agency policy making remains a rich area for further research.

6 ELR 50020 | Environmental Law Reporter | copyright © 1976 | All rights reserved