The Environmental Impact Statement Process
by
Neil Orloff
Director
Regional Liaison Staff
Office of Federal Activities
U.S. Environmental Protection Agency
Washington, D.C. 20460
Presented at the Environmental Impact Statement Seminar of
the Twin Cities Federal Executive Board, Minneapolis, Minnesota,
on February 6, 1973.
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Twin Cities
Federal Executive Board
Environmental Impact Statement Seminar
February 6, 1973
The Environmental Impact Statement Process
Neil Orloff
I. General Background
A. Basic Laws, Executive Orders and Regulations
1. National Environmental Policy Act of 1969
2. Executive Order 11514
3. CEQ Guidelines - April 23, 1971, and CEQ
memorandum to Federal agencies - May 16, 1972
4. Agency NEPA regulations
B. Role of Various Groups in the NEPA Process
1. Role of CEQ
2. Role of EPA - Section 309 of the Clean
Air Act - EPA Order 1640.1
3. Role of other Federal, State, and local agencies
4. Role of public citizens and private industry
C. Action by the Courts in the NEPA Process
1. General interpretation of the National
Environmental Policy Act
2. Review of agency NEPA regulations
3. Review of agency decisionmaking in specific cases
II. Overview of Basic Stages in the Impact Statement Process
A. Deciding Whether An Impact Statement Is Required
In a Particular Case
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B. Writing the Draft Statement
C. Circulating the Draft, Preparing Responses to
the Comments Received, and Writing the Final Statement
D. Making a Decision in Light of the Final Statement
III. Deciding Whether An Impact Statement Is Required In a
Particular Case
A. General Requirements
1. Federal involvement - the Sierra Club v. Volpe
and Davis v. Morton cases
2. Requirement that the action be "major" and
"significantly" affect the environment - the
Hanly v. Kleindienst case
B. Who Decides Whether An Impact Statement Is Required -
Role of the "Responsible Official"
C. When Must the Threshold Decision Be Made
1. Early in the planning process; prior to final
agency action
2. CEQ time requirements for the NEPA process;
waiver of time requirements
3. GAO .Report - "Improvements Needed in Federal
Efforts to Implement the National Environ-
mental Policy Act of 1969" - May 18, 1972
IV. Writing a Draft Statement
A. Who Writes the Draft Statement? The Applicant or
the Agency?
B. Who Pays the Cost of Preparing the Statement?
C. Contents of the Statement
1. Selection of proper scope of the project for
analysis
2. Determination of range of environmental effects
to be covered
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a. initial or primary effects
b. secondary or induced effects
c. must changes in the social environment be
considered in addition to changes in the
physical environment?
3. Basic data and analysis required in the statement
4. Need to compare results of analysis with
environmental standards
5. Scope of alternatives to be considered - the
NRDC v. Morton case
6. Cost-benefit balancing - the Calvert Cliff's
case
V. Circulating the Draft; Preparing Responses to the
Comments Received; Writing the Final Statement
A. To Whom Must Statements Be Sent?
B. Length of Allowable Review Period
C. Consideration of and Preparation of Responses to
Comments Received
D. Writing the Final Statement
VI. EPA Review of Impact Statements - Rating by EPA of the
Draft Statement and the Project - Referral of Projects by
EPA to CEQ
VII. Making a Decision in Light of the Final Impact Statement
A. Must the Responsible Official Actually Consider the
Impact Statement? The EOF v. Corps of Engineers
(Gilham Dam) Case
B. Is the Impact Statement the Decision Document?
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VIII. Wrap-Up
A. Statistics on the Current EIS Process
1. Number of statements being prepared, by agency
and by type of project
2. Number of lawsuits being filed, and number of
projects being stopped
3. Federal agency budgets for compliance with
NEPA
B. Preparation of "Conceptual Frameworks for Analysis"
to Assist Preparers of Impact Statements - New
Phase in the EIS Process*
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Twin Cities
Federal Executive Board
Environmental Impact Statement Seminar
February 6, 1973
The Environmental Impact Statement Process
Neil Orloff
Good morning ladies and gentlemen. I'm pleased to
be with you today to discuss the environmental impact
statement process. Professor Steinhart has talked this
morning on the history and significance of NEPA. I would
like to focus on how the impact statement process operates.
I. General Background
I would like to start our discussion by briefly examining
the basic documents which form the impact statement process. The
process has given rise to a large number of documents, of
various types, setting forth hundreds of different requirements;
and the importance and applicability of all these documents
is sometimes confusing.
A. Basic Laws, Executive Orders, and Regulations
The basic document, of course, is the National Environmental
Policy Act of 1969 (NEPA). Everything done in the impact
statement process must be consistent with the words of the
Act. In case there is an inconsistency between the words of
the Act and guidelines or regulations issued by an agency,
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the words of the Act prevail.
Next in importance is the guidance issued by the
Council on Environmental Quality (CEQ). Shortly after
the passage of NEPA, the President issued Executive
Order 11514. This Executive Order requires agencies, in
general terms, to implement NEPA and, in specific terms,
directs CEQ to issue guidelines to Federal agencies for the
preparation of impact statements. As a result of the
Executive Order, two sets of guidelines currently exist.
The first set was issued on April 23, 1971. They set
up the impact statement process, and, in particular, the
concept of draft and final impact statements. As you know,
there is nothing in the statute which refers to a draft
statement or a final statement. These concepts are the
progeny of CEQ, and were developed to facilitate the consulta-
tion among Federal agencies that the statute.requires. The
guidelines set up overall, a comprehensive procedural
structure for the impact statement process. The first place
to go to with a question about how the process should work,
after consulting the statute, is these CEQ guidelines.
The guidelines are somewhat dated, however, and this
has resulted in a second set of guidelines being issued by
CEQ on May 16, 1972. This second set is supplementary to
the first set, and is in the form of recommendations to
agencies rather than formal regulations. The second set
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essentially tackles a number of questions on procedure and on
the contents of an impact statement that arose in the year's
experience under the first set of guidelines.
Next in importance, after the statute, the Executive
Order, and the CEQ guidelines, are the agency regulations.
Separate regulations have been developed by each Federal
agency. They exist not only for major agencies like DOT,
HEW, and HUD, but also for the smallest agencies of the
Federal Government such as the Canal Zone Authority, the
National Capital Planning Commission, and others of comparable
size. These regulations establish the particular policies and
procedures to be followed by that agency in implementing NEPA.
Agencies have great latitude in how they go about implementing
NEPA, as long as they fulfill the requirements of the statute,
the Executive Order, and the CEQ Guidelines. Because this
leaves agencies with many options, and because Federal pro-
grams within an agency frequently operate so. differently,
one often finds, especially in the larger agencies, that an
agency has issued both general agency-wide regulations and
then different implementing regulations for each of its
major programs or bureaus. For example, the Department of
Interior has general agency-wide regulations plus specific
separate regulations for its Bureau of Reclamation, its
Bureau of Land Management, its Bureau of Mines, its Bureau
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of Indian Affairs, its National Park Service, its U.S.
Geological Survey, and so forth. All these regulations
set up basic policies and procedures to be followed by the
agency (or bureau, or department) in implementing its
responsibilities under the National Environmental Policy Act.
These, then, are the major rules governing the impact
statement process and their basic interrelationships. The
next question, of course, is who are the parties in the
impact statement process and what are their roles; what do
they do?
B. Role of Various Groups in the NEPA Process
The first party is the Council on Environmental Quality.
It's a small group. There are about 60 staff, of which only
about 15-20 people are primarily involved in the impact
statement process. But these 15-20 get a great deal done.
They are engaged in three basic activities. First, as talked
about a little earlier, they write the guidelines which are
the primary rules of the road. Second, they review agency
NEPA procedures, frequently suggest changes to them, and
generally monitor how adequately each agency is overall
implementing NEPA. Third, they troubleshoot problem projects.
In the case of such a project, they generally attempt to mediate
the disputes, although on occasion they even act as an advocate
in the dispute. CEQ does not, however, approve projects.
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It has no authority to approve or disapprove projects, nor
does it have the staff resources even to read more than a very
small fraction of the impact statements it receives. All
impact statements must be filed with CEQ, but CEQ is very
selective in determining those in which it will intervene.
The next party is the Environmental Protection Agency.
The Environmental Protection Agency is like all other Federal
agencies in that it, too, must prepare impact statements.
EPA is different, however, in that it is the only Federal
agency required by law to review and comment in writing on
virtually all impact statements that are issued by other
Federal agencies. Section 309 of the Clean Air Act Amendments
of 1970 requires the Administrator of EPA to review and
comment in writing on all those actions subject to the impact
statement requirements of NEPA that relate to any of the
authorities of the Administrator - that is all those actions
that relate to air, water, solid waste, pesticides, radiation,
or noise. Section 309 further requires that EPA make its
written review of a Federal agency's action public, and that,
if the Administrator determines the action to be unsatisfactory
from the standpoint of environmental quality, he also make
this determination public and refer the action to CEQ. EPA
has recently issued, in EPA Order 1640.1, the policies and
procedures it follows in reviewing Federal agency actions and
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fulfilling its responsibilities under Section 309.
After CEQ and EPA come the Federal agencies of the
Government. It is the Federal agencies to whom NEPA is
primarily directed. NEPA itself creates no obligations or
responsibilities on State or local agencies or public
citizen or private industry groups. In the section on
impact statements, NEPA directs Federal agencies to do two
things. The first is mandatory. The Act requires Federal
agencies, before they reach a decision on a proposed major
action which may significantly affect the environment, to
analyze in detail the likely environmental consequences of the
action, and to make this analysis available to the public.
This is the heart of the impact statement process. The
second responsibility created by NEPA is, contrary to the
first, highly discretionary. NEPA requires each Federal
agency to make itself available to other Federal agencies
for consultation on the environmental effects of the other
agencies' proposed actions. As a result of this, each
Federal agency is involved not only in preparing its own
impact statements, but also in consulting (or commenting) on
the statements prepared by other Federal agencies.
Nothing in NEPA extends the obligations imposed on
Federal agencies to State or local agencies or public citizens
or private industry. In practice, however, these groups are
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involved in the same two roles as are Federal agencies.
Federal agencies frequently request these groups to prepare
an environmental analysis as part of the documentation to be
submitted to the Federal agency before the agency will
consider the action requested of it. This Federal agency
request of applicants could be termed "passing the buck."
The Federal agency is responsible for the environmental analysis,
but it often requires applicants to do the first round of
homework necessary to prepare the environmental analysis.
This, I think, makes a lot of sense, because it is the
applicant who in the beginning has all the information on
how the project is structured and what it is likely to do.
State and local agencies, and public citizens and private
industry, are also involved in the second part of the impact
statement process. Although Federal agencies are not required
to consult with these non-Federal groups under the terms of
the statute, these groups are given an opportunity, under the
CEQ guidelines, to comment on and criticize the environmental
analysis prepared by a Federal agency. One should not
underestimate the power of this opportunity. All the comments
on an impact statement follow the impact statement through
the agency review process, and are made available to the
public, the President, and CEQ. A project can be halted if
the comments show that the environmental analysis is clearly
faulty or the project clearly unjustified.
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C. Action by the Courts in the NEPA Process
CEQ, EPA, other Federal agencies, State and local
agencies, and public citizens and private industry are the
main groups in the impact statement process - with one
exception. The courts have shaped the impact statement process
in a manner almost unparalleled in the history of the
development of Federal programs. Although this role of
major architect may be due in part to the current public
consciousness of the environment as an important social issue,
the activism of the courts is probably more directly a result
of the great ambiguity in the words of the statute. NEPA
has been called, by leading judges and legal scholars, one
of the most opaque statutes .ever written. The types of
questions that are being directed to the courts are ordinarily
addressed at the time a bill is drafted and enacted by Congress.
This was not, however, the case with the National Environmental
Policy Act. One simply cannot find in the statute or its legis-
lative history the answers to a number of major questions
surrounding the impact statement process. As a result, the
courts have been called on, in the name of "interpretation,"
to develop answers to major policy questions.
Because of this situation, a detailed discussion of the
impact statement process demands constant reference to court
decisions. Many - perhaps most - of the major points
governing the process are a result of pronouncements by a
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court. In many cases, there is no source to which one can
look for answers to major questions other than these
pronouncements.
The courts have to date issued their pronouncements in
three general areas. First, they have issued pronouncements
on the abstract interpretation of the Act. For example, the
NRDC vs. Morton decision addresses itself in detail to the
meaning of the requirement to analyze alternatives in
Section 102(2) (C) of NEPA. Had the statute been specific on
this point, the NRDC v. Morton decision would not be anywhere
near the landmark decision that it is. The second major area
in which courts have issued decisions involves the validity
of an agency's regulations implementing NEPA. Here we have,
for example, the Calvert Cliffs decision and the Greene County
v. FPC decision. They primarily concern the extent to which
an agency's general regulations comport with'* the court's
interpretation of the legal requirements of the Act. Finally,
in the third area, the courts have issued decisions on whether
an agency, in taking a specific action, has complied with the
Act. The Hanly v. Kleindienst decision, for example, looks to
whether the specific procedures followed, in GSA's decision to
build a Federal jail in Manhattan, comply with the Act.
Because of the number and the extraordinary importance of
court decisions in these three general areas, we at EPA find
ourselves devoting substantial resources just to keeping track
of the decisions and keeping EPA staff involved in the NEPA
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process abreast of them. As observers of NEPA in other
countries have remarked, the Act sometimes seems to have
been primarily tailored to the objective of keeping lawyers
employed rather than improving the environment I
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II. Overview of Basic Steps in the Impact Statement Process
It may be helpful, before launching into a discussion of
the specific requirements of the impact statement process, to
briefly go over the major stages in the process. It is frequently
useful to think of the process as involving four major stages.
First, a Federal agency has to decide whether a proposed major
action requires the preparation of an impact statement.
Second, if an impact statement is required, an agency must
prepare a draft statement. If no impact statement is required,
the Federal agency can directly proceed with its review of the
proposed action, although if the decision not to prepare a
statement is questionable, the agency would be well advised to
document the basis for its determination before going further.
Third, the Federal agency must circulate its draft statement for
comment and prepare a final statement. Circulation of the
draft means sending the draft to all groups directly interested
in the proposed action - other Federal agencies, State and
local agencies, CEQ, and public and private industry groups.
The Federal agency must allow these groups a reasonable time
to comment on the draft. This is usually considered to be 30
to 45 days. The agency must then prepare the final statement by
revising the draft to reflect the agency's response to all
the major comments received. Finally, in the fourth stage, the
agency proceeds to reach a decision on the proposed action in
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light of the analysis set forth in the final impact statement,
and other factors relevant to the decision-making process.
Herein lies a murky area which perhaps we can discuss later
today. I would be particularly interested in your views
on how the final impact statement could, or should, be
integrated into an agency's decision-making process.
These four stages very briefly outline how the impact
statement process operates. I think it may be useful now to
look into each of these steps in some greater detail.
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III. Deciding Whether An Impact Statement Is Required In A
Particular Case
A. General Requirements
An environmental impact statement is required whenever a
Federal agency proposes to take a major action which is likely
to significantly affect the environment. This test of whether
an impact statement is required can be reduced to three sub-tests
First, is a "Federal action" involved? Second, is the action
"major?" And third, is the action likely to "significantly"
affect the environment?
The concept of what actions or projects are Federal for
purposes of NEPA had been relatively straight-forward until the
last year or so. One looked to the overall project, and if the
Federal Government provided any essential component of it, then
the whole project was Federal for purposes of NEPA. Thus, if a
Federal permit or license was required before a project could
proceed, an impact statement was required even though the
project itself was to be wholly funded, constructed, and
operated by private groups. This was the case, for example,
of the Trans-Alaska pipeline. Another large group of projects
for which impact statements were required resulted from the
Federal Government's funding activities. If any Federal funds
were provided for a project, the whole project became a
Federal project for purposes of NEPA. This was the case, for
example, of highways partially funded by FHWA, or sewage
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treatment plants partially funded by EPA. Finally, there was the
group of activities directly and wholly undertaken by a
Federal agency. These were the clearest examples of Federal
actions and consisted of such projects as the detonation of
a nuclear test blast in Amchitka, Alaska, or the Department of
Agriculture deciding to spray national forests with a new
pesticide. These three groups of activities - licensing
activities, funding activities, and activities directly and
wholly undertaken by the Federal Government - constituted the
traditional groups of Federal activities subject to the impact
statement process of NEPA. There were in addition to these major
groups a few minor groups, such as proposals of legislation
or major policy-making, but they need not concern us here.
In the last year or so, however, the concept of what
activities are Federal activities for purposes of NEPA has
become much more complex. I think a recent case will highlight
the difficulty sometimes involved. In the Sierra Club v.
Volpe case, the court held that reconstruction of a segment of
highway was a Federal action even though no Federal funds were
to be used in the reconstruction. The case concerned a portion
of State Highway #1 in California. Federal funds were used
to expand the northerly portion of the highway, and Federal
funds were likely to be used to expand the southernly portion.
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A part in the middle - a 6.3 mile segment called the Devil's
Slide By-Pass - was also planned for Federal funding, until
environmental groups requested that an impact statement be
prepared. According to the court, the Federal and State
officials apparently then decided to get around the requirement
to prepare an impact statement by foregoing Federal funds for
this controversial segment.
The court ruled that agencies may not circumvent NEPA by
dividing up a unified highway project into piecemeal segments.
This would thwart the purpose of the Act. The court ruled that
a statement had to be prepared. Had the court ruled otherwise,
agencies would have been able to divide up a project into those
portions which might result in significant environmental damage
and those which would not, construct these latter portions
without the need to prepare an impact statement, and then
bootstrap themselves into justifying the finishing, damaging
parts. From this point of view, the court's decision makes a
lot of sense. At the same time, however, it greatly complicates
the concept of what constitutes a Federal action for purposes
of NEPA.
Apart from the requirement that an action be Federal,
an action must also be "major" and likely to "significantly"
affect the environment before an impact statement needs to be
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prepared. I am not able to offer you much elucidation of what
the word "major" means. Neither the CEQ Guidelines nor any
court decisions of which I am aware effectively address this
question. Perhaps the best rule of thumb to follow is that when
a Federal action is likely to significantly affect the environ-
ment, it is likely to be a major action for purposes of NEPA.
One can do a little better in helping define the concept
of "significantly" affecting the environment. It is clear
from the CEQ Guidelines and court decisions that the environment
is to be thought of in broad terms for purposes of deciding
whether it is likely to be significantly affected. The
environment is not to be considered just in terms of air or
water pollution or of physical changes in the land. The
environment also includes the social environment. For example,
in the Hanly v. Kleindienst case, the court directed the GSA
before constructing its now infamous jail in Manhattan, to
consider such matters as exposure of neighbors and passersby
to drug addicts, and potential for increased crime in the
nearby area. I think one should swiftly add that the court
was not asking the impossible. The matters the court asked
GSA to investigate are clearly very difficult ones with which to
come to grips. What the court was saying, I think, is that
one has to look beyond such relatively superficial effects such
as generation of garbage or air pollution, and in good faith
attempt to consider what the overall effect on the human
environment might be. This generally includes examining potential
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social as well as physical effects.
There is, then, a notion of what the range of environmental
effects is that must be considered. To decide whether these
effects are significant for purposes of NEPA, the court in the
Hanly v. Kleindienst case suggested two tests. First, the court
said that one should look to the extent to which the proposed
action will cause adverse environmental effects in excess of
those created by existing uses in the affected area. Thus,
the generation of 80 decibels of noise might not be significant
in a noisy part of a downtown area, but it could be significant
in a quiet area near a hospital. One thus has to look at
adverse effects not only in terms of their absolute magnitude,
but also in terms of the existing degree of degradation in
the affected area.
The second test proposed by the court in the Hanly v.
Mitchell case is to look at the cumulative harm that may result
from the addition of the adverse effects of the project to
existing poor environmental conditions in the affected area.
The court waived that one must look out for "the straw that
breaks the back of the environmental camel." Even a small
amount of additional pollution in an area already .heavily
polluted might have very significant environmental effects.
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These are the general requirements establishing when an
impact statement must be prepared. The proposed action must
involve the Federal Government; the Federal involvement must
be a major action; and the action must be likely to result in
significant effects on the quality of the human environment.
The next question, of course, is who decides whether a proposed
action meets these requirements. Who applies these tests?
B. Who Decides Whether An Impact Statement Is Required -
Role of the "Responsible Official"
The statute states that there is a person, called the
responsible official, charged with preparing any. environmental
impact statement that may be required. Each agency's regula-
tions implementing the statute define who that person is. In
some cases, it is a single person for the whole agency. In
other cases, it is a different person within the agency depending
on the particular agency program for which an impact statement
is to be prepared. In almost all cases, the official charged
with preparing the impact statement is also the person charged
with making the decision of whether an impact statement is
required. In any particular situation, to find out who the
responsible official is, one must consult the Federal agency's
NEPA regulations. For EPA, for example, the same responsible
official is charged with deciding both whether an impact
statement is required, and, if one is required, with preparing
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the actual statement. Designation of the responsible official
depends on the EPA program involved, and is generally either an
EPA Regional Administrator or an EPA Assistant or Deputy
Assistant Administrator. In the case of EPA's funding of sewage
treatment projects, the responsible official is the Regional
Administrator in whose area the grant would be made. In the
case of EPA's funding of research projects, the responsible
official is EPA's Assistant Administrator for Research and
Monitoring. These delegations or designations are all
explicitly set forth in EPA's NEPA regulations.
C. When Must the Threshold Decision Be Made
Finally, there is the question of when in the decision-
making process the decision of whether to prepare an impact
statement needs to be made. In the first instance, one must
here also consult an agency's NEPA regulations. But unlike the
designation of the responsible official, which is wholly within
the discretion of the agency, there are several guiding
principles which constrain determination of when the threshold
decision must be made. First, the threshold decision must be
made prior to final agency action. NEPA requires that, if a
statement is to be written, the statement must be available
to accompany the proposed action through existing agency
review processes. Although stating the constraint in this
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abstract way may not be very useful in a particular case,
the intent of the statute on this point is reasonably clear.
An impact statement, if it is prepared, is to be used. One
should not prepare an impact statement merely as the final
documentation for a decision that has already in fact been
made. This would turn the impact statement process into a
mere paper work exercise instead of the decision-making
tool it is intended to be.
Second, one has to decide on whether to prepare an
impact statement far enough in advance of the final agency
decision to comply with the time requirements set forth in
CEQ's guidelines. The guidelines state that not less than
30 days must be provided for review of the draft statement, and
that an agency should not take final administrative action on
a proposal prior to 30 days after the final impact statement
has been released to the public. The guidelines also state
that this final administrative action should not be taken sooner
than 90 days after release of the draft, although this 90 day
period and the 30 day period after filing the final statement
may run concurrently to the extent that they overlap. Thus,
one must decide whether an impact statement is required far
enough in advance to be able both to write the statement and to
comply with these CEQ time requirements. In exceptional cases
CEQ will waive part of the time requirements. For good cause
shown, they will sometimes waive part of the 30 day waiting
period after the final statement has been filed, although
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they are reluctant to do so in other than very extraordinary
situations.
If one reflects on this timing question, I think a
profound aspect of the whole impact statement process emerges.
NEPA assumes that at a single point in the development of a
project, an agency will decide to prepare an environmental
analysis. This is analagous to saying that at a single point
in the development of a project, an agency will decide to
prepare a cost analysis. But cost analyses are not very helpful
if held up until the end of the planning of the project. Rather,
cost analyses need to be prepared as rough approximations during
the initial planning of the project and gradually be refined
more and more as the planning of the project proceeds and as
alternatives are analyzed and perhaps discarded. In this way,
the cost analysis at each stage in the planning process is
appropriate to the decisions to be made at that stage. The
project can be scrapped or modified if it appears to cost too
much, and significant resources will then not have been wasted
because of lack of understanding of basic unacceptable high
costs of the project. Consideration of environmental factors
associated with a project should proceed in much the same way
as this consideration of cost factors. One starts with a very
rough approximation of the environmental effects of the project,
and gradually refines this environmental analysis as the concept
of the project is developed. If approached in this way, the
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NEPA-required impact statement emerges in the normal course of
events. No formal decision on whether to prepare an impact
statement is then required, and the need for the statement
ceases to be a jolt to an agency's operations. And the
crucial goal of NEPA - consideration of the environment in
the planning of a project - will have been accomplished. The
General Accounting Office issued a report on May 18, 1972 on
improvements needed in Federal efforts to implement NEPA.
»
One of the main points in their report was that agencies
frequently waited until far too late in their planning of a
project before considering possible environmental effects.
The crash effort at the end of the planning of a project that
resulted was almost always highly disruptive of the agency's
program operations and frequently of little practical use.
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IV. Writing a Draft Statement
A. Who Writes the Draft Statement?
Assuming that a decision is made to prepare an impact
statement, the next major question is who should write the
statement? Here it is frequently helpful to distinguish
between where responsibility falls for issuing the formal draft
impact statement which is circulated for comment and who may
prepare environmental analyses as input to the formal draft
impact statement. Responsibility for issuance of the formal
draft impact statement rests with the Federal agency proposing
to take the action. The Federal agency may not divest itself of
this responsibility. The Federal agency may, however, request
applicants to prepare environmental analyses to be used in
the preparation of the formal statement. In some cases,
these environmental analyses may be sufficiently detailed
and comprehensive so that little additional analysis is required
of the Federal agency. In other cases, these environmental
analyses may represent only a small step towards preparation
of the formal draft statement. The degree of assistance
provided by applicants is dependent on how the Federal agency
decides to structure its preparation of impact statements. In
all cases, however, it is the Federal agency which has final
responsibility for the draft impact statement.
Several examples may clarify the different procedures
which are followed. EPA, in its program for funding sewage
treatment plants, requires applicants for a grant to submit
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documents called environmental assessments along with their
applications. These environmental assessments must cover the
basic topics which are covered in a formal environmental impact
statement. EPA uses these assessments to help it decide
whether an impact statement needs to be prepared. If one
needs to be prepared, EPA uses the assessments in drafting
the impact statement. EPA's regulations specifically provide,
however, that the EPA official in charge of writing the statement
must assume responsibility for the reliability and comprehensive-
ness of all the data and analysis in the statement, including
that provided by the applicant in his environmental assessment.
In a number of other EPA programs, there are no applicants
to provide environmental, assessments. For example, in EPA's
funding of a demonstration project to show the applicability
of newly developed technology, there frequently is no identified
outside party at the time EPA must reach a decision on whether
to prepare an impact statement. In this case, the EPA official
in charge of the proposed project must do both the initial
environmental analysis necessary to decide whether an impact
statement is required, and also the complete writing of a draft
statement.
The Federal Highway Administration (FHWA) follows a
somewhat different procedure in its funding of highways.,
Whereas EPA uses an applicant's environmental assessment as
input to the writing of the draft statement, the FHWA looks to
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the State highway agency for the full preparation of the draft
statement. The FHWA reviews this draft statement and takes
responsibility for its contents. But the writing and analysis
is fully performed by the State agency.
A number of court cases have recently arisen on the
question of the extent to which a Federal agency may delegate
preparation of a draft impact statement to an outside group.
In the National Forest Preservation v. Volpe case, the court
held that the FHWA's delegation of the writing of the statement
to the State highway agency was not a violation of NEPA. In
the Green County v. FPC case, however, the court held a
different view. In that case, the court said that the FPC
had abdicated a significant part of its responsibility
by circulating a statement prepared by the Power.Authority of
the State of the New York (the applicant) as the draft
environmental impact statement. The court ordered the FPC
to revise its procedures to provide that the FPC would henceforth
prepare its own draft statements.
At the present time, then, courts disagree on the extent
which an agency may delegate preparation of the draft statement.
It will probably take a year or two before this issue is finally
resolved.
B. Who Pays the Cost of Preparing the Statement?
Since applicants are often requested to do environmental
analyses as part of the Federal agency's responsibility to
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issue an impact statement, the question of who foots the expense
of these environmental analyses frequently arises. For the
answer to this question, one must look to the particular
agency's NEPA regulations. Some agencies make no provision
for reimbursement to applicants for the cost of the environmental
analyses. Other agencies, however, provide that the applicant's
costs in preparing the environmental analyses can properly
be considered as part of the project's overall costs and there-
fore eligible for reimbursement by the Federal agency. EPA
has such a provision in its NEPA regulations covering sewage
treatment plant grants, and this results in applicants being
reimbursed up to 75% of their cost of preparing the environ-
mental analyses to be submitted to EPA. To decide in any
particular case, then, whether an applicant can be reimbursed,
one must consult the regulations of the relevant Federal agency.
(I might add, parenthetically, that there are no Federal agencies
which to my knowledge charge an applicant for the Federal agency's
own costs in preparing an impact statement. Although Federal
agencies sometimes reimburse applicants, I do not think any
applicants have ever been requested to reimburse the Federal
agency for its own costs.)
C. Contents of the Impact Statement
We come, then, to the question of how to write the impact
statement. This is a difficult question to answer in the
abstract; but it is an important one to consider, because the
language of the sections of NEPA covering this actual preparation
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of impact statements is by no means unambiguous.
It appears, to me, that five steps are generally involved
in writing a statement. First, one must determine the proper
scope of the proposed project for the preparation of a statement.
Clearly, neither the erection of lights, in the case of a new
airport, nor all possible sources of energy in the U.S., in
the case of a new power plant, are proper project entitities
for a detailed environmental analysis. Second, one must
decide on the range of environmental considerations appropriate
for analysis for this project entity, i.e. what primary and
what induced or secondary environmental effects need to be
considered. Third, one must step back and determine what
basic data about the project and its surroundings is needed
to investigate the environmental effects and what analysis
of this data needs to be performed. Only after this is done
can one methodically proceed to forecast environmental effects.
Fourth, one must look critically at the conclusions resulting
from the analysis and make some assessment of them. Finally,
one must decide on any alternative formulations of the project
which need to be considered and analyze their environmental
effects.
The first question, that of defining the proper scope of
the proposed project for the preparation of an impact statement,
recurringly produces a dilemma. On the one hand, a broad
formulation of the project entity often makes analysis unmanageably
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complex. A broad formulation of the project also sometimes
creates an impasse, because necessary information is not available
at the level of the person preparing the statement. For
example, the construction of an oil pipeline involves
possible damage to the environment. It raises the question of
whether alternative national energy policies might be appropriate.
Yet this is an exceedingly complex analysis to make, and requires
information and judgements readily available to very few people.
A broad formulation also results on occasion in placing
too little attention on the particular action at hand. It
•
may also cause unnecessary duplication of effort when statements
are written on similar types of projects located in different
parts of the country.
The other side of the dilemma is that a narrow formulation
of the project entity often makes it very difficult to put the
action in perspective. In the case of individually small
projects that are related to each other, their cumulative
effects may be obscured. In the case of a single large
complex project, and in the case of a chain of projects (e.g.
the nuclear fuel chain), highly damaging components might
erroneously be justified on the grounds that the other
components of the project are already constructed, and the
benefits resulting from the small additional expenditure outweigh
the damage.
•
What is needed, then, is a finely tuned balance in the
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selection of the proper scope of the project for analysis. In
some cases a narrow conception of the project may be appropriate.
In other cases, a broad conception may be appropriate. In still
other cases, two levels of impact statements may be required.
An overview impact statement may be needed to look at the
broad effects of a program; and individual, more narrowly
focused impact statements, may be needed to look at specific
projects within the program. The overview statement in this
case would serve to highlight the major effects of the program
and to provide a background analysis enabling one to put the
effects of the individual projects in perspective.
Once one decides on the proper project entity for analysis,
one must then determine the range of environmental effects to
be analyzed. Obvious questions such as potential for air
or water pollution must of course always be considered.
But so must other less obvious questions. Two forms of
short-sightedness frequently occur. The first is where the
initial or primary effects of a project have been taken into
consideration, but the secondary or induced effects of the
project have been ignored. For example, statements on
highways and sewage treatment plants seldom evaluate the
impact of their construction and operation on urban growth
patterns. These secondary or induced effects may, however,
be more damaging than the primary effects.
The second form of shortsightedness is the tendency to
consider only changes in the physical environment, and to ignore
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possible alterations of the social environment. Yet impacts on
population patterns or community behavioral patterns may affect
the quality of the human environment much more than impacts on air
and solid waste. In determining the range of environmental
effects to be analyzed, beware of these two forms of
shortsightedness.
Having determined the proper scope of the project for
analysis and the range of environmental effects to be investigated,
the next step is to gather the basic data on the project and
its surroundings and analyze the information. This is frequently
difficult to do, because for many kinds of projects, it is
unclear what data is relevant and even what types of analysis
need to be performed. The field of environmental forecasting
is very new, and necessary analytical techniques have not yet
all been developed. Nevertheless, a number of major analytical
frameworks have recently been completed or are near completion.
The Atomic Energy Commission has recently issued several
booklets on approaches to preparing environmental analyses for
nuclear power plants, and EPA has recently drafted, for
limited review, a conceptual framework for analyzing the
environmental consequences of highway projects. What is
required in writing an impact statement is to set forth, to
the greatest extent practical, the project's likely environmental
effects. Where forecast techniques do not exist, one need not
attempt the impossible. Judging, however, from the impact
statements which have been prepared, much room for improvement
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exists, even within the bounds of generally available analytical
techniques.
After one forecasts environmental effects, the next
step is to look critically at the results and make an assessment
of them. It's surprising how many impact statements on highways,
for example, fail to compare the additional air pollution
likely to result from the highway with the existing air pollution
in the affected area and with national ambient air quality
standards. For an impact statement to be useful in the
decision-making process, it must not only forecast environmental
effects but must also indicate their significance. If standards
will be violated, one must attempt to evaluate by how much the
standards will be violated, how frequently this will occur, and
whether this is likely to be significant. Without this informa-
tion, the forecasts are of very limited utility.
Finally, in the last step, one must analyze the alternatives
that are available to the project. On the question of what types
of alternatives must generally be investigated, CEQ has said,
in its May 16, 1972 guidelines:
"The recent decision in NRDC v. Morton discussed... the
requirement that agencies consider the 'alternatives' to
the proposed action. The most significant aspect of the
Morton decision is the court's conclusion that all
alternatives reasonably available to the Government as
a whole must be discussed - even if some of those
alternatives are outside the control of the agency preparing
the statement. Discussion of such alternatives is required
in order to guide the decision at hand as well as to inform
the public of the issues and to guide the decisions of
the President and Congress.
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"The court in this case was careful, however, to emphasize
that it was not requiring the impossible. 'A rule of
reason is implicit in this aspect of the law...'
Detailed discussion is not required of alternatives that
"are deemed only remote and speculative possibilities in
view of basic changes required in statutes and policies
of other agencies.' And the agencies need not indulge
in 'crystal ball inquiry1 in assessing the effects of
alternatives.
"Agencies must indicate in their procedures that all
reasonable alternatives and their environmental impacts
are to be discussed, including those not within the
authority of the agency. Examples of specific types of
alternatives that should be considered in connection with
specific kinds of actions should be given where possible.
Such examples should include, where relevant:
(1) the alternative of taking no action;
(2) alternatives requiring actions of a significantly
different nature which would provide similar benefits
with different environmental impacts (e.g., a fossil fuel
v. a nuclear power plant);
(3) alternatives related to different designs or details
of the proposed action, which would present different
environmental impacts (e.g., pollution control equipment
on a nuclear plant).
"In each case, the analysis of alternatives should be
sufficiently detailed and rigorous to permit independent
and comparative evaluation of the benefits, costs and
environmental risks of the proposed action and each
alternative." I/
These, then, are the major steps involved in writing an
impact statement. First, one must determine the proper scope
of the project for analysis. Second, one must decide on the
range of environmental considerations to be investigated.
Third, one must determine the basic data on the project and
/
ITCitations to cases omitted.
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its surroundings to be gathered and the analysis to be performed,
Fourth, one must look critically at the results of the analysis
and make an assessment of them. And fifth, one must analyze the
alternatives available to the project.
It may be helpful, in closing this section, to look
briefly at an issue which has caused a great deal of confusion.
This is the extent to which the impact statement must contain
a cost-benefit analysis of the proposed project. CEQ addressed
this question in its May 16, 1972 guidelines:
"Inherent in the duty imposed on any agency by NEPA
to promote environmental quality is the obligation
to weigh the possible environmental effects of a
proposal against the effects on other public values
the agency is mandated to consider. If the environmental
effects are adverse, the agency must consider whether
they outweigh the benefits of the proposal in deciding
whether to go ahead.
"...NEPA does not specify whether this balancing of
environmental and other considerations must be spelled
out in the environmental impact statement under Section
102(2)(C). ... [Legislative history suggests, however,
that Congress did expect the 102 statement to record
the agency's trade-offs of competing values.
"This interpretation is supported by several statements in
court decisions. In the Calyert Cliffs case the court
stressed the necessity for'balancing1under NEPA and the
role of the 102 statement in showing how the balancing
was done:
'In some instances environmental costs may outweigh
economic and technical benefits and in other
instances they may not. But NEPA mandates a
rather finely tuned and 'systematic' balancing
analysis in each instance.'
"Similarly, in Natural Resources Defense Council v.
Morton, the court observed that:
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"The impact statement provides a basis for
(a) evaluation of the benefits of the proposed
project in light of its environmental risks, and
(b) comparison of the net balance for the proposed
project with the environmental risk presented by
alternative courses of action.'
"These judicial comments do not, however, detract
from the primary purpose of the 102 statement: the
assessment of the environmental effects of possible
actions. NEPA was enacted out of a concern that environmental
considerations were not being fully canvassed before
action, and the purpose of Section 102(2) (C) is primarily
to require a 'detailed statement1 of environmental
effects...
[CEQ recommends that] wherever adverse environmental
effects are found to be involved in the proposed action,
the impact statement should indicate what other interests
and considerations of Federal policy might be found to
justify those effects. The statement should also
indicate the extent to which these stated countervailing
benefits could be realized by following reasonable
alternatives to the proposed action that would avoid
some or all of the adverse environmental effects. In
this connection, agencies that prepare cost-benefit
analyses of proposed actions should attach such analyses
to the environmental impact statement." I/
Accordingly, the impact statement need not itself contain
a detailed cost-benefit analysis. But the impact statement
must succinctly explain the nature of the interests to be served
which justify the expense of environmental degradation.
I/ Citations omitted.
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V. Circulating the Draft Statement, Preparing Responses
to the Comments Received; Writing the Final Statement
A. To Whom Must Statements Be Sent?
After a draft impact statement is written it must be
circulated and responses must be prepared for the comments
received. CEQ has issued a list, as an attachment to its
April 23, 1971 guidelines, of the Federal agencies to whom
impact statements should normally be sent for comment.
This list is subdivided according to both type and incidence
of environmental effects (for example, there are headings such
as water and air pollution, parks, forests, wetlands and
estuaries). Within each subdivision, CEQ has listed the
Federal agencies with jurisdiction by law or expertise in the
area. This list should be used, however, only as a rough
guide. When in doubt on whether a Federal agency should receive
a draft impact statement for comment, go ahead and send one!
Agencies should seek to distribute their draft impact statements
as broadly as is practical.
Most Federal agencies prefer that impact statements sent to
them for comment be directed to their regional office in charge
of the area in which the proposed project will be situated.
EPA, for example, has requested Federal agencies to send all
draft impact statements to its regional offices, except in the
case where the impact statement relates to legislation, the
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development of national policy, or projects of national controversy
or significance.
Draft impact statements should also be available to State
and local agencies and interested public and private groups
for comment. One way to circulate an impact statement among
State and local agencies is to have the statement accompany
the proposed action through the OMB A-95 review process.
To apprise non-governmental groups of the availability of a
statement, CEQ has suggested that Federal agencies consider
publishing a notice in local newspapers of the release of draft
statements. CEQ has also suggested that agencies maintaining a list
of groups known to be interested in the Agency's activities
and directly notify such groups each time a draft statement is
issued. The general objective here is to allow all interested
parties the opportunity to comment on the action.
B. Length of Allowable Review Period
CEQ's April 23, 1971 guidelines provide that agencies
seeking comment on their impact statements may establish time
limits of no less than 30 days for reply. After the time set
for review has expired, an agency may presume that all agencies
which were consulted but failed to respond have no comments
to make unless an agency has requested a specified extension of
time. The guidelines provide that agencies seeking comment
should endeavor to comply with requests for extensions of
time of up to 15 days.
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C. Consideration of and Preparation of Responses to
Comments Received
Courts have recently said that Federal agencies are
obligated to consider opposing views and to respond to all comments
received on their draft statements. CEQ discussed this basic
idea in its May 16 guidelines, noting:
"Agencies should make an effort to discover and discuss
all major points of view in the draft statement itself.
Where opposing professional views and responsible
opinions have been overlooked in the draft statement and
are brought to the agency's attention through the commenting
process, the agency should review the positive and
negative environmental effects of the action in light of
those views and should make a meaningful reference in
the final statement to the existence of any responsible
opposing view not adequately discussed in the draft
statement with respect to adverse environmental effects,
indicating the agency's response to the issues raised.
All substantive comments received on the draft should be
attached to the final statement, whether or not each such
comment is thought to"merit individual discussion by the
agency in the text of the statement.At the same time
that copies are sent to the Council, copies of final
statements, with comments attached, should also be sent to
all entities - Federal, State, and local agencies, private
organizations and individuals - that made substantive
comments on the draft statement, thus informing such
entities of the agency's disposition of their arguments."
(emphasis in original)
D. Writing the Final Statement
Having written a draft statement, circulated it for comment,
and prepared responses to the comments received, the agency's
writing of the final impact statement often becomes the easiest
step in the entire impact statement process. What is required
here is simply to revise the draft to reflect the agency's
consideration of the points raised by commenting groups. This
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requires little effort when the draft has fully analyzed the major
environmental effects likely from the action and the promising
alternatives to the action. Substantial work is usually
involved only where comments on the draft show that there are
significant environmental effects or alternatives that were not
considered by the preparing agency at the time the draft was
written.
Once a final statement is written, CEQ's April 23
guidelines require that it be filed with CEQ, along with copies
of all the comments received on the draft. The guidelines
also provide that a final agency decision should not be taken
earlier than 30 days after the final statement is filed.
Thereafter, the procedural requirements of NEPA will normally
have been fully satisfied, and the agency can proceed with
reaching a final decision on the proposed action.
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VI. EPA Review of Impact Statements - Rating by EPA of the
Draft Statement and the Project - Referral of Projects by
EPA to CEQ
Section 309 of the Clean Air Act Amendments of 1970
provides:
"Sec. 309. (a) The Administrator [of EPA] shall review
and comment in writing on the environmental impact of
any matter relating to duties and responsibilities
granted pursuant to this Act or other provisions of
the authority of the Administrator, contained in any
(1) legislation proposed by any Federal department or
agency, (2) newly authorized Federal projects for
construction and any major Federal agency action
(other than a project for construction) to which
Section 102 (2) (C) of Public Law 91-190 applies, and
(3) proposed regulations published by any department or
agency of the Federal Government. Such written comment
shall be made public at the conclusion of any such review.
" (b) In the event the Administrator determines that any
such legislation, action, or regulation is unsatisfactory
from the standpoint of public health or welfare or
environmental quality, he shall publish his determination
and the matter shall be referred to the Council on
Environmental Quality."
This section obligates EPA to review Federal agency actions.
This section is a logical supplement to NEPA. NEPA requires
Federal agencies to prepare impact statements, and Section 309
requires EPA to review impact statements. No other Federal
agency has an explicit legal mandate to review the environmental
effects of agency actions.
To implement this responsibility, EPA has established
detailed policies and procedures. They provide that, where an
impact statement has been sent to EPA for comment, EPA's
comments on the impact statement shall also constitute its
comments for purposes of Section 309. As of November 30, 1972,
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each such comment letter by EPA contains a rating of both
the impact statement and the project. The rating of the
impact statement can be a 1, 2, or 3. A "1" rating indicates
that EPA believes the impact statement is adequate. A "2"
rating indicates that EPA believes the draft impact statement
does not contain sufficient information to allow a full
assessment of the environmental effects of the proposed action.
A "3" rating indicates that EPA believes the impact statement
is inadequate and has asked that the statement be substantially
revised. Agencies might in this case consider preparing a new
draft statement.
EPA also rates the project, in addition to the impact
statement. Three ratings are possible here. An "LO" rating
indicates that EPA has no environmental objections to the
proposed action. An "ER" rating indicates that EPA has
reservations about the environmental effects of aspects of
the proposed action and that reassessment of these aspects is
required. An "EU" rating indicates that EPA believes the
proposed action is unsatisfactory because of its overall
potentially harmful effect on the environment. (The definitions
of these ratings are given in Table I.) Every two weeks, EPA
publishes in the Federal Register a listing of its comments on
draft impact statements released during the preceding two weeks,
along with the rating of each of the draft statements and the
projects they cover.
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Table 1
DEFINITION OF RATINGS USED BY EPA
IN REVIEWING FEDERAL AGENCY ACTIONS
AND ENVIRONMENTAL IMPACT STATEMENTS
Environmental Impact of the Action
LO—Lack of Objections
EPA has no objections to the proposed action as described
in the draft impact statement; or suggests only minor
changes in the proposed action.
ER--Environmental Reservations
EPA has reservations concerning the environmental effects of
certain aspects of the proposed action. EPA believes that
further study of suggested alternatives or modifications is
required and has asked the originating Federal agency to
reassess these aspects'.
EU—Environmentally Unsatisfactory
EPA believes that the proposed action is unsatisfactory
because of its potentially harmful effect on the environment.
Furthermore, the Agency believes that the potential safe-
guards which might be utilized may not adequately protect
the environment from hazards arising from this action. The
Agency recommends that alternatives to the action be analyzed
further (including the possibility of no action at all).
Adequacy of the Impact Statement
Category 1—Adequate
The draft impact statement adequately sets forth the
environmental impact of the proposed project or action as
well as alternatives reasonably available to the project
or action.
Category 2—Insufficient Information
EPA believes that the draft impact statement does not contain
sufficient information to assess fully the environmental
impact of the proposed project or action. However, from the
information submitted, the Agency is able to make a
preliminary determination of the impact on the environment.
EPA has requested that the originator provide the informa-
tion that was not included in the draft statement.
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Table 1 continued
Category 3—Inadequate
EPA believes that the draft impact statement does not
adequately assess the environmental impact of the proposed
project or action, or that the statement inadequately
analyzes reasonably available alternatives. The Agency has
requested more information and analysis concerning the
potential environmental hazards and has asked that substan-
tial revision be made to the impact statement.
If a draft impact statement is assigned a Category 3, no
rating will be made of the project or action, since a
basis does not generally exist on which to make such a
determination.
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EPA's procedures for implementing its responsibilities
under Section 309 also require EPA staff to follow up on
selected Federal projects beyond the draft impact statement
stage. EPA staff are required to review all final impact
statements for which the draft statement or the project at the
draft statement stage received a 2, 3, ER, or EU. If the review
of the final statement shows that environmental problems
surfaced at the draft statement stage have not been adequately
resolved, EPA will first notify the originating agency and then
prepare formal comments on the final statement. A summary
of all such comments issued by EPA is published every two weeks
in the Federal Register. The comments on the final impact
statement of those projects determined by the Administrator to
be unsatisfactory from the standpoint of health, welfare,
or environmental quality, are forwarded to the Council on
Environmental Quality, and the Administrator's determination
is made public.
This is very briefly how EPA implements its responsibilities
under Section 309. The policies and procedures it follows are
covered much more comprehensively in EPA Order 1640.1. Copies
of the Order are available to any interested individual, and
can be obtained by writing EPA's Office of Public Affairs.
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VII. Making A Decision In Light of the Final Impact Statement
A. Must the Responsible Official Actually Consider
the Impact Statement? The EOF v. Corps of Engineers
(Gilham Dam) Case
We come, then to the last stage in the impact statement
process - making a decision in light of the final impact statement.
For a long time, the prevailing view among Federal officials was that
NEPA simply created a procedural hurdle to surmount. The view was
held that once an agency went through the motions and wrote
an impact statement, NEPA no longer was relevant to the final
decision-making process. This was a reasonable view, I believe,
if one looked at the general theme of the court decisions which
were being handed down. Most of the questions in dispute in
the decisions involved whether an impact statement had to be
prepared for a particular proposed project.
Recently, however, several courts and agency officials
have started to focus on what NEPA requires a Federal agency
to do with the environmental impact statement once it is prepared.
The new question being asked is whether NEPA creates more than
a procedural requirement (over which only the unwary need stumble).
A recent major case focuses on this question. In the
EOF v. Corps of Engineers (the Gilham Dam Case), the U.S.
Court of Appeals for the eighth circuit ruled that NEPA is more
than an environmental full disclosure law. The court said,
"NEPA was intended to effect substantive changes in decision-
making... We conclude that purely mechanical compliance with
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the procedures of S102 is not sufficient to satisfy the
provisions of NEPA." The court went on to say that if it
could be demonstrated that an agency did not consider all
relevant factors - including the impact statement - in reaching
its decision, then the court would enjoin the proposed agency
action.
Two questions emerge out of this pronouncement. First,
what procedure will the courts follow in reviewing whether an
agency has adequately considered environmental values? The
court answered this by rejecting the idea of a completely new
analysis of the project by the court. The court would not
substitute its own weighing for that of an agency. The court
also rejected the idea of requiring the agency to produce
substantial evidence to support its decision. The proper test,
according to the court, is whether an opposing party can demonstrate
that the agency decision was arbitrary, capricious, an abuse
of discretion, or a clear error in judgement. Thus, an agency
must consider environmental values in its decision-making and
courts will hold up a proposed action if this is not done, but
the procedure used by the court in reviewing an agency's decision
requires an outside group to demonstrate that this agency decision
represents a clear error in judgement.
The second question raised by this court statement on NEPA
is what standards courts will use to decide whether the weight
given to environmental values represents a clear error of
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judgement. How will courts apply the judicial review procedure
just enunciated? The court attempted to answer this by saying
that courts should look to the standards set forth in
sections 101(b) and 102(1) of NEPA, and determine whether,
according to these standards, the actual balance of costs and
benefits that was struck by the agency clearly gave
insufficient weight to environmental values.
I expect there will be a number of court decisions in the
near future on the question of the extent to which NEPA affects
an agency's substantive decision-making. Certainly there is a
great need for clarification in this area. I think we are
seeing in the EDF v. Corps of Engineers case the beginning
of a new direction in the courts' thinking about the
National Environmental Policy Act.
B. Is the Impact Statement the Decision Document?
Another of the questions which I expect will receive
major attention in the future is whether the impact statement
represents the decision-making document. If the impact
statement is intended to reflect only environmental considera-
tions, then of course there must be separate evaluations of
other factors important to consider in the final agency decision.
But if the impact statement reflects the balancing of environmental
costs and benefits against other relevant considerations, it then
effectively becomes the decision document.
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No final answer to this question of whether the impact
statement is (or should be) the decision document is yet
available. I urge you to express your views on this question
to the Council on Environmental Quality.
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VIII. Wrap-Up
We have not had time in this survey to discuss a number
of major aspects of the impact statement process. We have not
looked at the extent to which NEPA applies to continuing
activities of agencies, to the development of new programs
and policies, or to the discontinuation of long standing
programs. We have generally assumed that NEPA applies only to
discrete "projects," although its coverage is clearly broader
than this. We have not tackled the questions of how NEPA applies
to legislative proposals and, in particular, to appropriation
requests. These and many other major questions, such as the
meaning of recent and. proposed amendments affecting NEPA, must
await another time.
A. Statistics on the Current EIS Process
It may be useful, in closing, to note some statistics on
the current impact statement process. At the present time,
approximately 125 new draft impact statements are issued for
comment each month. Although the exact number of statements
issued each month fluctuates between about 80 and 160, there
appears to be neither a long-term decrease nor a long-term
increase from the mean of 125 statements a month. This represents,
then, about 1500 new statements being generated each year.
Table 2 shows the number of impact statements which have been
prepared, by agency and by type of project, from the beginning of
NEPA to December 1, 1972. During this almost three year period,
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Summary of 102 Statements Filed With the CEQ Through 11/30/72
(By Agency)
Agency
Draft 102's for
actions on which no
final 102's have
yet been received
Agriculture, Department of
Appalachian Regional Commission
Atomic Energy Commission
Commerce, Department of
Defense, Department of
Air Force
Army
Army Corps of Engineers
Navy
Delaware River Basin Commission
Environmental Protection Agency
Federal Power Commission
General Service Administration
HEW, Department of
HUD, Department of
Interior, Department of
International Boundary and Water
Commission — U.S. & Mexico
Interstate Commerce Commission
Justice, Department of
National Aeronautics and Space Adm.
National Capital Planning Comm.
National Science Foundation
New England River Basins Commission
Office of Science and Technology
Pacific Northwest River Basins Comm.
State Department
Tennessee Valley Authority
Transportation, Department of
Treasury, Department of
U.S. Postal Service
U.S. Water Resources Council
Veterans Administration
93
1
48
6
5
9
3
244
6
3
6
73
12
4
15
111
0
3
2
12
0
1
1
0
2
2
5
870
5
1
4
1
Final 102 's on
Legislation
and actions
163
0
63
11
3
6
13
391
10
1
20
9
31
4
36
75
6
0
1
13
2
3
0
1
0
1
12
1123
4
0
4
2
Table 2
Total actions
which final draft
102 statements for
Federal action have
been received _
256
1
111
17
8
15 -
16
635
16
4
26
82
43
8
51
186
6
3
3
25
2
4
1
1
2
3
17
1993
9
1
8
3
2010
3553
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Table 2
(continued)
Summary of 102 Statements Filed with the CEQ Through 11/30/72
(By Project Type)
Draft statements Total actions on
actions on which no Final statements which final or
final statements have on legislation draft statements
yet been filed and actions have been taken
AEC nuclear development 4 21 25
Aircraft, ships and vehicles 1 56
Airports 61 206 267
Buildings 9 14 23
Bridge permits 11 11 22
Defense systems 3 3 6
Forestry 23 8 31
Housing, urban problems 10 25 35
new communities
International boundary 4 59
Land acquisition, disposal 10 39 49
Mass transit 2 68
Mining 6 6 12
Military Installation 13 19 32
Natural gas & oil
Drilling and exploration 3 8 ll
Transportation, pipeline 9 7 16
Parks/ Wildlife refuges,
Recreational facilities 76 29 105
Pesticides, herbicides 13 27 40
Pow er
Hydroelectric 69 10 79
Nuclear 42 41 83
Other 16 16 32
Transmission 5 17 22
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Table 2
(Continued)
Railroads
Roads
Plus roads through parks
Space programs
Waste disposal
Detoxification of toxic
substances
Munition disposal
Radioactive waste disposal
Sewage facilities
Solid wastes
Water
Beach erosion, hurricane
protection
Irrigation
Navigation
Municipal & Industrial
supply
Watershed protection &
flood control
Weather modification
Research & Development
Miscellaneous
3
626
161
2
6
2
5
9
4
10
18
90
10
139
6
15
30
1
809
85
9
3
3
1
18
0
26
16
131
11
330
5
16
23
4
1435
246
11
9
5
6
27
4
36
34
221
21
469
11
31
53
1543
3553
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52
a total of 3553 statements have been prepared. There have
been 2010 final statements, and 1543 draft statements for which
no corresponding final statement has yet been released.
The Department of Transportation has prepared the
greatest number of statements. It has written 1993 statements,
or about 60% of the total. Next comes the Army Corps of
Engineers, with 635 statements; the Department of Agriculture
with 256 statements; the Department of Interior with 186
statements; and the Atomic Energy Commission with 111 statements.
These five agencies account for approximately 90% of all the
statements submitted.
In terms of types of projects for which impact statements
have been prepared, the category with the largest number of
statements is roads, as would be expected from the above
figures. Roads have accounted for 1681 of the 3553 statements
that have been submitted. The next largest category consists
of watershed protection and flood control projects, with 469
statements; next comes airports, with 267 statements; next comes
water navigation projects with 221 statements; and after that
comes parks, wildlife refuges, and recreational facilities, with 105
statements. As you can see, 80% of all the statements that have
been written have been for five categories of projects.
As of December 1, 1972, approximately 350 lawsuits
challenging agency compliance with NEPA had been filed. Of these
cases, about 250 are active. Each month, an average of 15 new
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53
lawsuits are filed. However, each month, almost an equal.
number of cases filed in the past are terminated. Thus, there
appears to be a somewhat steady level of outstanding cases
challenging agency compliance with NEPA, with the new
cases initiated each month roughly balancing the number of
old cases terminated.
The greatest number of active lawsuits are against the
Department of Transportation, with about 65 lawsuits presently
outstanding. Next in order are the Army Corps of Engineers,
EPA, and HUD, with respectively, about 40, 35, and 26 outstanding
active lawsuits against each.
The number of government actions presently halted by
court orders resulting from NEPA litigation is approximately 47.
This is a rather low number, I think, in view of the close
monitoring being conducted on compliance with the impact
statement process. During the last year or so, a few new
government actions have been temporarily halted each month by
court order, and an almost equal number of actions halted in
previous months have been allowed to proceed.
The cost of administering the impact statement process
has increased substantially during the last few years. This
however, appears to reflect Federal agencies gearing up to meet
their responsibilities under NEPA, rather than any long term
trend. Table 3 shows the outlays by each major Federal agency,
t.
for 1971, 1972, and 1973, for preparing, processing, reviewing,
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Table 3
54
RESOURCE REQUIREMENTS FOR PROSECUTION OF
NATIONAL ENVIRONMENTAL POLICY ACT (SEC. 102(2) (C))
Agency
Department of Agriculture
Appalachian Regional
Commission
Atomic Energy Commission
Department of Commerce
Department of Defense
Air Force
Army
Army Corps of Engineers
Navy
Delaware River Basin
Commission
Environmental Protection
Agency
Federal Power Commission
Department of HEW
Department of HUD
Department of Interior
International Boundary, and
Water Commission,
United States and Mexico
National Aeronautics and
Space Administration
National Science Foundation
Tennessee Valley Authority
Department of Transportation
Department of Treasury
1971
730, OOU
23,000
1,376,000
558,000
4,860,000
25,000
1,140,000
320,000
450,000
173,000
4,249,000
35,000
436,000
8,000
1,425,000
1,296,000
5,000
1972
2, 934, OOU
35,000
6,923,000
659,000
87,000
2,664,000
12,380,000
3,711,000
98,000
2,028,000
544,000
450,000
880,000
8,995,000
43,000
506,000
9,000
2,138,000
2,972,000
171,000
1973
3,932,00u
35,000
8,194,000
1,593, QUO
116,000
3,543,000
19,870,000
1,478,000
2^3,000
2,601,000
577,000
450,000
1,095,000
14,267,000
61,000
498,000
15,000
1,888,000
4,219,000
281,000
Total
17,109,000
48,077,000 64,986,000
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' . 55
and commenting on environmental impact statements. According
to this chart, total outlays for the Federal Government in
administering the impact statement process rose from $17
million in 1971, to $48 million in 1972, to a budgeted
$65 million for fiscal 1973. The agency with the largest
expected outlay in fiscal 1973 is the Army Corps of Engineers,
with $20 million budgeted. This represents almost one-third
of total Federal Government administrative expenses under
NEPA. The agency with the second largest outlay is the
Department of Interior, with $14 million. Next comes the
Atomic Energy Commission with $8 million, and the Department
of Transportation with $4 million.
B. Preparation of "Conceptual Frameworks for Analysis"
to Assist Preparers of Impact Statements - New Phase
in the FIS Process?
I would like to close by briefly introducing what appears
to be a new phase in the impact statement process - the
preparation of conceptual frameworks for analysis. During the
first few years under NEPA, we have been preoccupied with the
procedural requirements of the Act. When are impact statements
required? Who prepares them? What is required for a project
already under construction at the time of passage of the Act?
These were the questions demanding attention.
Now that the procedural questions are fairly well
understood, attention is shifting to the quality of the
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56
environmental analyses being prepared. This in turn is
directing people to the question of how one goes about
forecasting environmental effects. In attempting to answer
this question, it has become clear that, at the time NEPA
was passed, there was little understanding of how to
forecast the environmental effects of major categories of
Federal projects.
To help remedy this situation, EPA and a number of other
groups have started to prepare conceptual frameworks for analysis
for different categories of projects. These frameworks present
a detailed methodology for forecasting environmental effects.
EPA has just recently completed a draft of a framework for
highway projects. It presents the different types or levels of
detailed analysis that appear appropriate for different types of
s
highway projects. For example, a small rural highway project
generally requires a very different form of analysis than a
multi-lane expressway through a congested urban area. For
each level of analysis, the framework shows what data needs
to be collected to forecast air and noise pollution, and the
different methodologies that can be used. To take care of the
situation where complete data for a project is not available,
the framework contains charts and tables giving average levels
of different factors in different general situations. Charts
and tables are also provided giving frequently needed reference
information, such as average automobile emission factors and
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57
national air quality control regions. To enable one to
assess the significance of the results of the forecasts, the
framework shows how to evaluate the results in terms of likely
background concentrations in the absence of the project and
national environmental standards.
We do not look at the framework as a panacea. But we
do think it will help significantly improve the quality of
environmental forecasts, and thus the usefulness of the
impact statement process. We think the preparation and use
of these conceptual frameworks may constitute a new level
of sophistication, and thus the beginning of a new phase in
the impact statement process.,
Thank you.
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