EPA-600/5-74-006
APRIL 1974
Socioeconomic Environmental Studies Series
Environmental Impact Requirements
In The States: NEPA's Offspring
Office of Research and Development
U.S. Environmental Protection Agency
Washington, D.C. 20460
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RESEARCH REPORTING SERIES
Research reports of the Office of Research and
Monitoring, Environmental Protection Agencyt have
been grouped into five series. These five broad
categories were established to facilitate further
development and application of environmental
technology. Elimination of traditional grouping
was consciously planned to foster technology
transfer and a maximum interface in related
fields. The five series are:
1. Environmental Health Effects Research
2. Environmental Protection Technology
3. Ecological Research
U. Environmental Monitoring
5. Socioeconomic Environmental Studies
This report has been assigned to the SOCIOECONOMIC
ENVIRONMENTAL STUDIES series. This series
describes research on the socioeconomic impact of
environmental problems. This covers recycling and
other recovery operations with emphasis on
monetary incentives. The non-scientific realms of
legal systems, cultural values, and business
systems are also involved. Because of their
interdisciplinary scope, system evaluations and
environmental management reports are included in
this series.
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EPA-600/5-74-006
April 1974
ENVIRONMENTAL IMPACT REQUIREMENTS IN THE STATES:
NEPA'S OFFSPRING
By
Thaddeus C. Trzyna
Contract No. 68-01-1818
Program Element 1HA095
Project Officer
Harold V. Kibby
Implementation Research Division
Washington Environmental Research Center
Washington, B.C. 20460
Prepared for
OFFICE OF RESEARCH AND DEVELOPMENT
U.S. ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
For sale by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402 - Price $1.30
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EPA Review Notice
This report has been reviewed by the Environmental
Protection Agency and approved for publication.
Approval does not signify that the contents neces-
sarily reflect the views and policies of the Envi-
ronmental Protection Agency, nor does mention of
trade names or commercial products constitute
endorsement or recommendation of use.
ii
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FOREWORD
The widespread use of environmental impact analysis as a
means of achieving Federal agency decision-making re-
sponsive to environmental concerns was initiated by the
passage of the National Environmental Policy Act of 1969.
The Act required that Federal agencies prepare statements
assessing the environmental impact of their major actions
significantly affecting the human environment. In sub-
sequent years Federal agencies developed procedures for
the preparation of environmental impact statements, often
requiring similar analyses and statements from local
governments and the private sector as a requirement for
the award of Federal permits or grants. In addition,
some States adopted environmental impact statement
requirements. Recent revisions of guidelines for the
preparation of Federal impact statements, issued by the
Council on Environmental Quality, have defined clear
requirements as to what can be expected in impact state-
ments from Federal agencies. However, such uniformity
of procedure and approach has not been extended below
the Federal level on either Federal agency requirements
or individual State requirements. Further, while the
guidelines may specify what is desired in Federal impact
statements, technical approaches to meeting these objec-
tives may not always be available and universally
acceptable.
As a part of its series of Socioeconomic Environmental
Studies, the Environmental Protection Agency, Office of
Research and Development, is conducting research whose
objectives are to:
-- Improve the technical quality of environmental
impact analyses in areas of Agency responsi-
bility;
-- Improve the ability of the Agency to provide
substantive technical review of environmental
impact statements prepared by other agencies;
and
-- Improve the effectiveness of the use of envi-
ronmental impact analyses in influencing
decision-making at all governmental levels.
• • •
TM
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This publication is the second of a three-part series
of reports on environmental impact analysis require-
ments several State governments have instituted. The
report is a comparative analysis of requirements in
the various States, updating a summary published as
the first reportl of the series. The third report will
provide a detailed analysis of the environmental impact
reporting program instituted in California, the most
extensive of the State programs. This'series of studies
is being conducted by Thaddeus C. Trzyna and his associ-
ates at the Center for California Public Affairs (an
affiliate of The Claremont Colleges), 226 W. Foothill
Boulevard, Claremont, California 91711, under contract
to the Ecological Studies and Technology Assessment
Branch, Implementation Research Division.
Alan P. Carlin, Director
Implementation Research Division
Edwin B. Royce, Chief
Ecological Studies and Technology
Assessment Branch
iv
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ABSTRACT
There is a growing trend in the States to adopt require-
ments for environmental impact statements like those in
the National Environmental Policy Act of 1969. Fifteen
States and Puerto Rico now require impact statements for
a wide range of activities significantly affecting the
quality of the environment, and several others apply
the process to limited classes of projects. At least
twenty other States have such requirements under consi-
deration.
The State requirements are summarized and compared to
each other and to the national act. Some key issues are
discussed: contents of the impact statement, applicabi-
lity to private projects and local governments, relation
to land use regulation, enforcement, and citizen partic-
ipation.
There are many problems involved in adapting the impact
requirement to State needs and institutions. More
evaluation of State programs is needed, and a new
organization should be created to facilitate communica-
tion among the States on administration of impact
statement programs.
This report was submitted in partial fulfillment of
Contract No. 68-01-1818, Program Element 1HA095, under
the sponsorship of the Office of Research and Development,
Environmental Protection Agency.
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CONTENTS.
Section
P'a'qe
I
II
III
IV
V
VI
VII
VIII
IX
Conclusions 1
Recommendations 3
Introduction 5
NEPA and Its Offspring 7
California 9
Connecticut ln
Hawaii 11
Indiana 11
Maryland 11
Massachusetts 12
Michigan 1?
Minnesota 12
Montana 13
New Mexico 13
North Carolina 14
Puerto Rico 15
Texas 15
Virginia 15
Washington 16
Wisconsin 1.6
Some Key Issues IP
Elements of the Environmental.
Impact Statement IP
Applicability to Private Projects
and Local Governments 22
Relation to Land TTse Regulation 24
Enforcement 26
Citizen Participation 2P
Other Issues 33
The Need for Evaluation and
Communication 35
Acknowledgments 3P
References 41
Appendices 55
A. State Requirements and Proposals
for Environmental Impact
Statements 57
B. Suggested State Environmental
Policy Act 73
vii
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SECTION I
CONCLUSIONS
1. General requirements for environmental impact
statements have been adopted by fifteen States and
Puerto Rico. However, implementation of these programs
has been slow, and their net effect so far appears to
be fairly small, except in California.
2. The effectiveness of many State programs is severely
limited because the environmental impact requirement
does not extend to private activities or to actions of
local governments (or to either).
3. The States generally fail to provide for adequate
enforcement of the environmental impact requirement,
and enforcement by citizen action is usually hampered
by a lack of mechanisms for informing and involving
the public. This leaves the way open for superficial
analyses, after-the-fact rationalizations, or failure
to prepare any impact statement at all.
4. An environmental impact statement requirement is
not redundant in States which have strong land use
controls; the two programs are mutually supportive.
5. While there are many differences among the various
State programs, so far thei*e have been only a few
really innovative departures from the Federal model.
6. There is widespread interest in NEPA-type State
legislation, and with good reason. The potential value
of environmental impact requirements in the States is
at least as great as at the Federal level. However,
before a State goes ahead with such a program, it
should be aware of the choices and the problems involved,
More evaluation of State programs is needed, and there
should be some mechanism for communication among the
States in this expanding and important field.
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SECTION II
RECOMMENDATIONS
1. A new national professional association or informa-
tion clearinghouse should be established to promote
better communication on the problems of developing and
administering environmental impact statement programs.
Participation in this organization could be open to
Federal, State and local officials, and to persons
outside government who have special expertise or
interest in the subject. The organization might be
established under the auspices of the Council of State
Governments, with the encouragement of the Council on
Environmental Quality and the Environmental Protection
Agency.
2. The Federal Government should sponsor independent
research on the successes and failures of State environ-
mental impact requirements. This research should
emphasize the problems of enforcing the requirement,
involving the public in the review process, and applying
the program to private projects and local governments.
The relationship between the impact analysis process
and land use planning and regulation should also be
studied.
3. In funding such research, the Government should
give priority to evaluating the innovative programs of
three States.:
a. California, which has the most extensive program.
Here, more information is needed on the adequacy of
impact statements and their role in influencing deci-
sions. A legal analysis of court decisions under the
California Environmental Quality Act would also be
useful.
i
b. Massachusetts, which (like California) applies
the impact requirement to a wide range of activities,
including private projects and local government actions.
This State's enforcement provisions are of special
interest.
/•
c. Minnesota, focusing on the role of the State
Environmental Quality Council, which has broad powers
to force compliance with the requirement, and which can
veto a proposal if the impact statement indicates that
approval would be contrary to State environmental poli-
cy.
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4. The Federal Government should provide for wide
dissemination of the results of these studies among
State officials and citizens1 groups.
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SECTION III
INTRODUCTION
There is a growing movement in the States to adopt
requirements for environmental impact statements
patterned after those established at the Federal level
by the National Environmental Policy Act of 1969
(NEPA). This report summarizes the status of environ-
mental impact procedures in the States (Section IV),
examines some key issues involved in developing and
carrying out such procedures and how they have been
dealt with by the various States (Section V), and dis-
cusses the need for more research and communication
on State impact programs (Section VI).
A companion report on the California Environmental
Quality Act, to be issued early in 1974, will discuss
in greater detail the problems of administering a
State environmental impact procedure, with recommenda-
tions on how other States might institute similar
programs with minimum disruption of essential acti-
vities.
Our survey of the State requirements included analysis
of State laws, regulations and other documents; personal
communications with officials in all fifty States, as
well as selected citizens' environmental organizations,
discussions with State and Federal officials; review
of published commentary on NEPA and the State acts;
and participation by the author in a workshop on
State environmental policy acts at the Second National
Symposium on State Environmental Legislation, held at
Arlington, Virginia, April 10-12, 1973.2
Because the practical effect of the laws and executive
orders described here is not always clear, this report
has some important limitations. First of all, most of
the State environmental impact requirements are quite
recent. In some cases, they are not yet implemented;
in others, detailed guidelines have not yet been
issued in final form.
Second, administration of many of the State environ-
mental policy acts is certain to be challenged in the
courts. NEPA already has been the basis of over 400
lawsuits3, and the California Environmental Quality Act
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of several dozen. In a number of cases, judicial
interpretations have led to major changes in the way
the national or State acts are implemented. And the
basis for some key decisions has been the declaration
of policy contained in a law, rather than its opera-
tive provisions4. We have made no attempt to analyze
these policy declarations.^
Third, without first-hand knowledge of how a law is
being administered, or at least the benefit of objective
analysis, it is hard to evaluate the actual effect of
any law. We were unable to make personal observations
outside California, and our survey of the other States
was hampered by an almost total lack of published
research.
The information in this report is believed to be
correct as of October 15, 1973. Sources of further
information will be found in the references. A list
of our contacts in the States is included in Appendix A.
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SECTION IV
NEPA AND ITS OFFSPRING
No single law has had as great an impact on environ-
mental decisionmaking in the United States as the
National Environmental Policy Act of 19696. NEPA
accomplished several things. First, it declared a
broad national policy for environmental protection?.
Second, it created certain "action-forcing" procedures
to insure that the policy is carried out^. Third, it
established a Council on Environmental Quality in the
Executive Office of the President.9
Of the action-forcing provisions in NEPA, the most
innovative and far-reaching is a requirement, in
Section 102 (2) (C) -t that Federal agencies prepare an
environmental statement in advance of "every recom-
mendation or report on proposals for legislation and
other major Federal actions significantly affecting
the quality of the human environment." These state-
ments must include certain specified elements, in-
cluding a discussion of alternatives to the proposed
action, and they must be circulated for comment to
other Federal agencies, affected State and local
governments, and the public.
The primary purpose of this process is to force full
disclosure of the environmental consequences of a
proposed action, thus alerting agencies, the public,
and ultimately the President and the Congress to the
environmental risks involved. An important and in-
tended result is to build into the decisionmaking
processes of Federal agencies a continuing considera-
tion of environmental factors.10
Although NEPA applies only to Federal actions and not
directly to actions of State or local governments,
State and local agencies are involved significantly in
the Federal environmental impact statement (EIS) pro-
cess. Approval of Federal funding for many State and
local projects (a highway, for example) may require
an impact statement under NEPA. Also, State and local
authorities are asked to comment on Federal impact
statements on projects affecting their areasll. But
as important as this involvement is, there is another
effect of NEPA which, in the long run, may have a far
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more profound impact on the States. The adoption by
States of "little NEPAs" causes the environmental im-
pact statement procedure to be applied to a wide range
of State and local actions that are not subject to the
Federal law. This not only affects environmental
decisions below the national level; it can also
transform the State and local processes of arriving
at such decisions. This factor probably will become
more apparent as the various States accumulate more
experience with their impact requirements.
NEPA was signed on January 1, 1970- -the first law of
the new decade. Even before it was enacted, it attracted
the attention of environmentalists at the State level,
and bills for State environmental policy acts, including
EIS procedures, were introduced in many State legis-
latures. Only two such laws were enacted in 1970 (in
Puerto Rico and California), but by the end of 1971,
eight States and the Commonwealth of Puerto Rico had
adopted broad EIS requirements by statute or executive
order. Three other States joined the ranks in 1972,
and four more in the following year, so that by October
1973 the list included fifteen States and Puerto Rico12.
In addition to the States which have mandated general
EIS procedures, several States require impact state-
ments to be filed for certain limited classes of pro-
jects. Arizona, for instance, specifies that an EIS
be prepared for proposed water- oriented development
projects. In Delaware, applicants for coastal zone
permits must submit an EIS for proposed manufacturing
projects. Georgia and New Jersey apply the procedure
to certain toll roads. And in Nevada, there is a
special EIS provision for power plant
There is widespread interest in NEPA- type State legis-
lation, and at least twenty other States have had
environmental impact requirements under consideration.
To aid the States in developing such legislation, the
Council of State Governments has adopted a 'Suggested
State Environmental Policy Act (Appendix B) .
The recent report of the Task Force on Land Use and
Urban Growth also endorsed the concept of a State EIS
requirement :
An environmental review process at the state
level analogous to that required of federal
agencies is desirable, for it is the nature
and importance of proposed actions, rather
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than the identity of the actor, that ought to
determine the scope of review. State review
becomes even more important with the enactment
of revenue-sharing. Whereas before federal
agencies were responsible for satisfying NEPA's
requirements in administering categorical
grant programs, now, if no similar mechanism
exists on the state level, the hard-won ob-
jectives embodied in NEPA are in danger of
being ignored.14
The following summary of the programs of the sixteen
States that have adopted general environmental impact
statement requirements describes the most important
and most innovative features of those programs and,
to the extent that information was available, the
progress that has been made in implementing them.
CALIFORNIA
California was the first State to establish an EIS
requirement patterned after NEPA (although Puerto
Rico's law preceded it by a few months). The California
Environmental Quality Act of 197Q15 applies to actions
of local, as well as State, agencies, and also to pri-
vate projects for which State or local governmental
permission is required. Because it is the oldest and
broadest in effect of the State acts and because it
has been the subject of considerable litigation, the
California law has attracted a good 'deal of attention
from the national press and from officials of other
States.
Much of that attention has surrounded the California
Supreme Court's ruling in the Friends of Mammoth y.
Board of Supervisors of Mono County casel6.in that
decision, handed down in September 1972, the Court held
that an EIS must be prepared before a governmental
entity approves a private project which is subject to
public permission and which could have a significant
effect on the environment. The case at issue involved
County approval of a condominium at a mountain resort.
It had been assumed by most observers that private
projects were not included within the EIS requirement.
But the Court noted that NEPA was used as a pattern
for the California act, and the key provision in both
acts--the environmental impact statement--was the same.
Observing that the Federal guidelines would require an
EIS under similar circumstances, the Court concluded
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that under the California law State and local agencies
must file an EIS before acting on a1private project.
i
The Friends of Mammoth decision resulted in confusion
over the status o± private projects already in process,
and this caused considerable alarm in the construction
industry, the building trades and the financial community.
Numerous lawsuits were filed or threatened, and some
officials called for amending the Environmental Quality
Act so that it would not apply to private projects.
Intensive negotiations among legislators, developers
and environmentalists led to the enactment of a com-
promise measure in December 1972. This measure added a
number of clarifications and new provisions to the 1970
law, but it had little effect on the most important
features of the act, including the Court's interpretation,
It also granted retroactive exemption to projects already
built or under way, and imposed a 120-day moratorium on
implementation of the EIS requirement.
The Secretary of the State Resources Agency, in consulta-
tion with the Office of Planning and Research, part of
the Governor's Office, is responsible for issuing guide-
lines for implementation of the EIS requirement and for
approval of categorical exemptions. The first set of
guidelines was issued in February 197317. Proposed
amendments to the guidelines have been circulated-^-8 and
it is expected that they will be issued in final form
in late 1973. Local governments were required to adopt
similar guidelines and procedures by April 6, 197319.
CONNECTICUT
An executive order signed by Governor Thomas Meskill in
October 197220 requires an EIS to be prepared by State
agencies recommending or initiating actions which may
significantly affect the environment. Earlier in 1972,
Governor Meskill had vetoed a bill for a State environ-
mental policy act that would have required an EIS to be
prepared for private projects licensed by the State,
as well as projects carried put by State agencies, on
the ground that it would have'"presented administrative
problems of the highest order."
effect
In mid-1973, the Governor signed the Connecticut
Environmental Policy Act2! , which will not take
until February 1, 1975. This law will require impact
statements to be prepared for State projects and pro-
jects "funded in whole or in part by the State"zz. Under
both the executive order and the statute., the State
10
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Planning Council is charged with reviewing the state-
ments and comments made on them and making recommenda-
tions to the Governor. Guidelines have been issued
in draft form.23
HAWAII
Hawaii's EIS requirement, currently limited to State
projects, was established by an executive order signed
by Governor John A. Burn's in August 1971^41 The review
process is coordinated by v«the Office of Environmental
Quality Control in the Governor's Office, which issued
guidelines in October 197125. Typically, impact state-
ments have dealt with such matters as State-sponsored
housing projects; roads, highways, and related facili-
ties; harbors and boat launch ramps; school siting and
construction; development of State parks; and dredging.
Several bills have been introduced in the Legislature
over the past two years to give the EIS requirement a
statutory base. The Temporary Commission for State-
wide Environmental Planning has proposed a strong
State environmental policy act that would extend the
impact statement process to local government and to
private projects.
INDIANA
Indiana's environmental policy act2^, approved in
February 1972, generally follows NEPA, but provides
specifically that it shall not be construed "to re-
quire an environmental impact statement for the
issuance of a license or permit by any agency of the
State." The Governor's Office and the Environmental
Management Board are responsible for coordinating the
program and reviewing impact statements. However,
the law has not yet been implemented. The Environ-
mental Management Board is developing policies and
guidelines which are expected to be acted upon in
early 1974.
MARYLAND
The Maryland Environmental Policy Act, enacted in
197327:, requires environmental impact statements to
be prepared by State agencies on State actions
significantly affecting the quality of the environ-
ment beginning July 1, 1974. Responsibility for
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carrying out the program is given to the Governor
or his designated agent.
MASSACHUSETTS
Massachusetts enacted an EIS requirement in 1972,
which took effect on July 1, 197328. The law applies
to "any work, project, or activity" of "any agency,
department, commission, or authority of the common-
wealth or any authority of any political subdivision
thereof." The guidelines issued by the Secretary of
Environmental Affairs29 define "project" as including
not only governmental activities, but also publicly
permitted private projects. Impact reports are to
be submitted to the Secretary of Environmental Affairs,
who is required to "issue a written statement indica-
ting whether or not in his judgment said reports
adequately and properly comply with the provisions of
this section."3U
MICHIGAN
A directive to department heads issued by Governor
William G. Millikan in December 1971^1 was superseded
by a more formal executive order in 1973-52. it re-
quires State agencies to prepare impact statements on
"major state activities which affect the environment."
Guidelines issued by the State Advisory Council for
Environmental Quality define a "major state action" as
"any policy, administrative action, or construction
project proposed by an agency of the State"'^ The
term "administrative action" includes issuance of
permits34. The program is coordinated by the Depart-
ment of Environment and Natural Resources. The ad-
visory council has been considering recommending
legislation to give the EIS procedure a statutory base,
MINNESOTA
Minnesota's environmental policy act, approved in
197335, requires an EIS to be prepared "where there
is potential for significant environmental effects
resulting from any major governmental action or from
any major private action of more than local signifi-
cance"^, The Minnesota Environmental Quality Council
is charged with adopting guidelines and regulations
for the program by January 1, 197437 and coordinating
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the processing of statements among local, State and
Federal agencies.
The Council is authorized to require an EIS for "any
action or project not referred to in its guidelines
and regulations."38 The law also provides that upon
receiving a petition requesting an EIS on a particular
action, the Council shall review the petition and at
its discretion require an impact statement to be
prepared. If the Council finds an EIS to be inade-
quate, it can demand that it be revised.39
A very significant feature of the Minnesota law is
that the Environmental Quality Council is authorized
to reverse or change a proposed action if it determines
that the action would be inconsistent with the declara-
tion of policy contained in the act.40
MONTANA
The Montana Environmental Policy Act, approved in
197141, requires that an environmental impact statement
be included in "every recommendation or report on pro-
posals for projects, programs, legislation and other
major actions of state government."^2 The Environmental
Quality Council is responsible for coordinating the
program, reviewing impact statements, and issuing
guidelines.43 According to the guidelines, "Private
sector enterprises are affected in cases where a pro-
posed action requires a license, permit, lease, or
other entitlement from the state. If the action is
controversial or significantly affects the human
environment, the involved agency must prepare an
EIS."44
NEW MEXICO
New Mexico's Environmental Quality Control law,
enacted in 197145^ requires an impact statement to be
included in "every recommendation or report on proposals
for legislation and other state actions."46 The law
also created a Council on Environmental Quality, but
it did not give specific responsibility for the EIS
program to that body. According to the State Planning
Office, the vagueness of the law created many problems
of interpretation.
In 1973, the Legislature suspended the EIS requirement
for one year and asked the Council to recommend legis-
13
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lation for a new environmental policy act. The Council
has voted to recommend that the new measure require
impact statements from State agencies on actions
significantly influencing the environment, and the
Legislature is expected to act on a new law early in
1974.
NORTH CAROLINA
The North Carolina Environmental Policy Act of 197147
requires impact statements to be made on State agency
proposals for "legislation and actions involving ex-
penditures of public monies for projects and programs
significantly affecting the quality of the environ-
ment. "4° In addition, the law authorizes (but does
not require) local governments to "require any special
purpose unit of government and private developers of
a major development project" to submit an EIS.4" The
term "major development project" includes but is not
limited to "shopping centers, subdivisions and other
housing developments, and industrial and commercial
projects, but shall not include any projects of less
than two contiguous acres."50 By mid-1973, only one
local government, the Town of Holden Beach, had adopted
such a requirement^!. The North Carolina Council on
State Goals and Policy is charged with reviewing
impact statements. The Department of Administration
has issued guidelines for the program.52
»>-•
The North Carolina law originally was enacted as a
two-year experiment. In a 1972 report to the Legis-
lature, 53 Governor Robert W. Scott said he believed
the measure had "proved to be a valuable tool for
insuring that actions of state government reflect
the aspirations of our people for an environment of
high quality," and he recommended that it be made
permanent, with certain modifications. These in-
cluded deleting the requirement that an EIS be pre-
pared on agency proposals for legislation; adding a
provision stating that an-EIS must be submitted in
the "early planning stages" of a project, rather
than after basic decisions have been made; and re-
quiring environmental impact analyses to be included
in the annual work programs of State agencies.
Because a key legislative committee decided that the
act was still experimental and needed more review, the
Legislature voted early in 1973 to extend the law until
1977, rather than make it permanent.54
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PUERTO RICO
Puerto Rico's Public Environmental Policy
approved on June 18, 1970,' only six months after
NEPA was signed, was the first law in any State or
Territory to require environmental impact statements.
It is almost identical to the national act. The law
is administered by the Environmental Quality Board
in the Office of the Governor, which has issued
detailed guidelines for the program.56 Under those
guidelines, impact statements are required for
legislation proposed or reported on by Commonwealth
agencies and "projects and continuing activities
directly undertaken by commonwealth agencies;
supported in whole or in part through commonwealth
contracts, grants, tax exemptions, subsidies, loans,
or other forms of financial assistance [,or] involving
a commonwealth lease, permit, license, certificate or
other entitlement for use." An EIS is also required
for "the adoption, amendment or repeal of plans,
policies, regulations, guidelines, norms, or pro-
cedures;" for decisions relating to mining concessions;
and for "any proposed action that is likely to be
highly controversial on environmental grounds."
TEXAS
Procedures for preparation, processing, and review of
impact statements in Texas are set forth in a "Policy
for the Environment"57 adopted on January 1, 1973 by
the Interagency Council on Natural Resources and the
Environment, of which Governor Preston Smith is
chairman. This policy "neither requires nor mandates
its member agencies, but rather suggests and solicits
the cooperation and coordination of its participants
to appraise and.improve the environmental effects of
their activities and to develop new initiatives to
abate environmental problems." Impact statements are
suggested for "project proposals" of State agencies.
The Division of Planning Coordination in the Governor's
Office coordinates the program.
VIRGINIA
The Virginia Environmental Policy Act, approved in
March 1973^8? requires State agencies to prepare
impact statements on State construction projects
costing $100,000 or more. The Commissioner of
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Conservation, Development and Natural Resources
coordinates the program. The law specifically
excludes highway and road projects from the EIS
requirement59. According to the Governor's Office,
this was done because most, if not all, highway
projects having a significant, impact on the environ-
ment are subject to the requirements of HEPA.
WASHINGTON
Washington's State Environmental Policy Act, approved
in 1971,50 is patterned closely after NEPA. Impact
statements are required on "proposals for legislation
and other maj.or actions" and of "all branches of
government of this state, including state agencies.
municipal and public corporations, and counties."61
The law appears to apply to private actions for which
a governmental permit is required, as well as public
projects. The program is coordinated by the Department
of Ecology, which has issued guidelines,62 and the
Ecological Commission. The Department reports that
implementation of the EIS requirement has been some-
what sporadic, due mainly to a lack of strict regula-
tory definitions and procedures for determining what
constitutes a "major action," when environmental
effects are "significant," and when a proposal should
get full study by the Department.
Two other Washington laws involve the EIS process.
The Highway Construction Environmental Review Law of
1971,63 which predates the State Environmental Policy
Act, requires an impact statement on State highway
projects which the highway department determines will
significantly affect environmental quality, and on all
highways in new locations or requiring additional
right of way. While it does not require impact state-
ments, the Shorelines Management Act of 197164 is ad-
ministered to "frequently require" an EIS to accompany
the review of shoreline permits sanctioned by local
officials.
WISCONSIN
The Wisconsin Environmental Policy Act, approved in
197165, applies to "agencies of the state" and generally
follows the wording of Section 102 of NEPA. However,
there are two important differences. Each EIS must
"contain details of the beneficial aspects of the pro-
posed project, both short term and long term, and the
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economic advantages of the proposal."66 Also, "Every
proposal other than for legislation shall receive a
public hearing before a final decision is made."67
While the Environmental Policy Act does not specifically
require an EIS for private activities, a companion
Iaw68 authorizes the Department of Natural Resources to
require an EIS from "an applicant for a permit or
statutory approval" which the Department is enpowered
to grant, provided that the area affected is more than
40 acres in extent or the estimated cost of the project
exceeds $25,000.69
The Department of Administration has issued guidelines
for implementing the Environmental Policy Act.70 Copies
of impact statements are to be sent to the Governor's
Office and the Department of Natural Resources7!.
Governor Patrick J. Lucey has created an interagency
Environmental Impact Statement Coordinating Committee
to assist agencies in implementing and defining the
language of the act.72
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SECTION V
SOME KEY ISSUES
In considering an environmental impact requirement, a
State is faced with some important decisions about the
scope of the program, who will be responsible for it,
how it will be carried out, and how it will relate to
other local. State and Federal environmental protection
activities.73
It should be kept in mind that the closer a State
provision is to the language of NEPA and the NEPA
guidelines, the more likely it is that State courts
will draw on case law under NEPA and similar State
acts in interpreting it.74
Among the key issues involved in developing an impact
statement program are the content of the EIS, the
application of the requirement to private activities
and local governments, its relation to land use con-
trols, enforcement, and citizen participation.
ELEMENTS OF THE ENVIRONMENTAL IMPACT STATEMENT
The National Environmental Policy Act requires five
specific points of information to be covered in a
Federal environmental impact statement:
(i) The environmental impact of the proposed
action,
(ii) Any adverse environmental effects which
cannot be avoided should the proposal
be implemented,
(iii) Alternatives to the proposed action,
(iv) The relationship between local short-
term uses of man's environment and the
maintenance and enhancement of long-term
productivity, and
(v) Any irreversible and irretrievable com-
mitments of resources which would be
involved in the proposed action should
it be implemented.75
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Expanding on these points, the guidelines issued by
the U. S. Council on Environmental Quality for the
preparation of Federal impact statements7° specify
that three other elements shall be included in an
EIS: (1) a description of the proposed action and
a statement of its purposes, along with a discussion
of the environment affected; (2) an explanation of
how the proposed action relates to land use plans,
policies, and controls for the affected area; and
(3) an indication of what other interests and con-
siderations of Federal policy are thought to offset
any adverse environmental effects outlined in the
EIS.77
There are few departures from the national pattern
in the States in the points to be covered in an impact
statement. The State acts and executive orders do
not always follow the exact language of NEPA, but if
they are looked at together with their implementing
guidelines and procedures and compared with the NEPA
guidelines, there are only minor differences in their
practical effect.
California's act7** specifically requires that the
EIS include a discussion of "Mitigation measures
proposed to minimize the impact" of a project.
Similar clauses are included in the Maryland7^
Massachusetts8*), North Carolina81 and VirginiaoZ acts,
and in the Suggested State Environmental Policy Act
adopted by the Council of State Governments?3 While
NEPA itself does not specifically address this problem,
the NEPA guidelines cover it under the category of
"alternatives to the proposed action."84
The California law85 and the model act8^ specifically
require an analysis of "the growth-inducing impact of
the proposed action." The NEPA guidelines also place
strong emphasis on discussing the effects of a proposed
action on population and growth.87 California Deputy
Attorney General Nicholas Yost notes that
The whole concept embodied in this require-
ment. . . is surely one of the lessons re-
peatedly learned in this time of environ-
mental awareness. Not only does a highway
or an airport cause certain environmental
disruptions incident to its construction
and not only do the automobiles or air-
craft which use it cause certain air and
noise pollution consequences, but the
facility itself fosters population growth
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and resulting land use changes. We have
only to look at the cities sited at harbors
and along rivers and railroads and at the
strip development, along highways to realize
that these secondary consequences of a facility
may be the most profound ones. California's
explicit requirement that these impacts be
evaluated cannot but be a good thing.88
Several States require an EIS to include an evaluation
of primary and secondary effects of a proposal, but no
other State specifically calls for an evaluation of
growth impact.
Five States specify that the EIS include a discussion
of the economic impact of the proposed action:
Michigan,89 Minnesota,90 Montana,51 Washington,92 ancj
Wisconsin.93 The Michigan act, for example, says
that, "Where appropriate, a discussion of the economic
gains and losses including the effect on employment,
income levels, property values, taxes, and the cost of
alternatives to the proposed action" should be included
in the EIS. The Federal guidelines are not as specific.
They provide only that an impact statement should deal
with "changed patterns of social and economic activities"
under the discussion of secondary consequences of a
proposal.94 The model act has no special reference to
economic impact. Some local jurisdictions in California
require an economic analysis in an EIS, and a bill has
been introduced in the California Legislature to add
a discussion of economic impact to the EIS elements
already specified in that State's act.
Texas and Wisconsin require that the "beneficial"
aspects of a proposal be discussed. Under the Texas
executive order, the "expected beneficial environmental
impacts of the proposed actions" are to be set forth
in the EIS.95 Wisconsin requires inclusion of "details
of the beneficial aspects of the proposed project, both
short term and long term" to be included in the impact
statement.96 The NEPA guidelines contain no special
reference to beneficial aspects, but require agencies
to "assess the positive and negative effects of the
proposed action."97
The Minnesota law contains two other departures from
the general model. The EIS must include an assessment
of the "impact on state government of any federal con-
trols associated with the proposed actions" and a dis-
cussion of the "multistate responsibilities associated
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with the proposed actions."98
The statutes or executive orders of Hawaii,99 Indiana,100
Montana,101 NeV Mexico,102 Puerto Rico,l°3 and Washing-
ton104 follow to the letter NEPA's list of elements to
be included in the EIS. Except as noted above, the
laws or executive orders of the other States specify
elements similar, but not identical, to those listed
in the national act.
APPLICABILITY TO PRIVATE- PROJECTS AND LOCAL GOVERNMENTS
All of the sixteen States which have general EIS pro-
cedures require impact statements for actions or pro-
jects undertaken directly by State agencies.1°5 There
are very large differences among the States, however,
in their application of the EIS process to local
government actions and to private activity for which
a governmental permit is required.
Whether the State EIS requirement extends to local
governments and whether it includes public permission
of private activity are key issues, separate but over-
lapping. The private sector conducts a great range
of activities that might; have harmful environmental
consequences, and many of them are subject to some
form of discretionary governmental approval. Some
of the most important controls over private actions,
particularly those relating to the use of land, are
administered not by the States but by counties, cities,
towns and special purpose units of local government.
And apart from their role of regulating private acti-
vities, local governments are responsible for facili-
ties and services intimately related to environmental
quality, for example, sewage and solid waste disposal,
construction of new streets and roads, water supply,
and flood control.1°6 Thus, the real impact of a
State's EIS program largely depends on whether it
applies to local governments aaid/or private activities.
The Task Force on Land Use and Urban Growth strongly
recommended that States require impact statements for
both private and public projects at the local as well
as State level.1°' The Council of State Governments'
Suggested State Environmental Policy Act applies'the
EIS requirement to private projects or activities
involving governmental permissionl°8 fcut gives a
choice as to whether such a law should apply only to
State actions or local ones as well.109
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Only four States seem to apply the EIS requirement
both to private activities and to local governments.
California's law is the only one that is explicit
on both points. It says that an impact statement
shall be prepared on private activities involving
the issuance of a "lease, permit, license, certifi-
cate, or other entitlement for use by one or more
public agencies."HO The term "public agencies"
includes local governments and regional bodies as
well as State agencies.HI
The Massachusetts act applies to State agencies and
political subdivisions of the State.112 While the
law is silent on the issue of private activities,
the guidelines specify that an EIS must be prepared
for any governmental activity "which involves the
issuance of a lease, permit, license, certificate,
or any entitlement for use by an agency."113
Washington's law applies to "all branches of govern-
ment of this state, including state agencies,
municipal and public corporations, and counties."114
The guidelines imply that private activities are
subject to the EIS requirement.115 The Puerto Rico
act places the impact statement requirement on "all
agencies of the government','116 defined in the guide-
lines as including any "public authority, public
corporation, or municipality."117 The guidelines
require an EIS to be filed on activities "involving
a commonwealth lease, permit, licence, certificate
or other entitlement for use."H8
Four other States explicitly require an impact state-
ment to be prepared on private activities for which
a State permit is required: Michigan,H9 Minnesota,
Montana,121 and Wisconsin.122 However, Minnesota's
law requires an environmental analysis only for a
"major private action of more than local significance."
It should be noted that Indiana's law provides that it-
shall not be "construed to require an environmental
impact statement for the issuance of a license or
permit by any agency of the state."123
Several of the States use words identical or similar
to those in NEPA in describing the EIS requirement,
and presumably the NEPA guidelines would be considered
by the courts in deciding whether they apply to private
activities.124 Although NEPA itself does not deal
explicitly with the issue of private activities, the
NEPA guidelines require an EIS to be filed on actions
"involving a Federal lease, permit, license certificate
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or other entitlement."125
None of the States applies the EIS requirement to local
governments without also specifying that an impact
statement be prepared on private activities subject to
public permission. While the North Carolina law
authorizes local governments to require an EIS for
certain private projects, this provision has had
almost no use.lz° It appears that the North Carolina
act does not extend to public projects of local
agencies.
Some of the State laws and executive orders are vague
on the application of the EIS requirement to local
governments or private projects. For example, the new
Maryland law applies to State agencies "and any such
bodies created by the state."127 Does this include
local governments? The recently-enacted Minnesota
law applies to private actions "of more than local
significance . . . where no governmental permit is
required."128 what kinds of activities does this
encompass? The laws of some States which do not
specifically extend the EIS requirement to local
agencies say that an impact statement must be pre-
pared for governmental projects paid for wholly or
partly out of the State treasury. For example,
Connecticut requires an EIS on a project "funded
in whole or in part by the state."129 Many local
projects (roads, for instance) are built with
State assistance. Does this mean that such local
activities are subject to an impact statement?
Such questions may be answered in the guidelines
yet to be issued by these States, or in the
courts.
RELATION TO LAND USE REGULATION
A*n important issue in implementing an EIS requirement
in the States is how it will relate to ongoing govern-
mental processes, particularly to existing mechanisms
for regulating land use. Much of the variation among
the States in EIS programs derives from differences
in established approaches to land use planning and
management.
Some observers believe that an EIS program might be
redundant in States with strong state-level land use
regulation. This is an important point in view of the
recent trend toward shifting responsibility for key
land use decisions from local authorities to the
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States,131 and in view of wide support in the Congress
and the Administration for Federal legislation to
encourage a stronger role for the States in this area.
Three States have adopted statewide land regulatory
systems: Hawaii, Maine, and Vermont. There has
been little interest in Maine or Vermong in adopting
a State EIS requirement. Officials of those States
account for this by pointing to their land use control
laws. But neither law appears to provide as substan-
tial an informational tool as the impact statement.
Vermont's Iawl32 requires environmental factors to be
considered prior to any State approval of significant
development proposals. There is no provision for a
formal, written environmental analysis similar to
an EIS, but State "environmental advisors" are required
to make on-site inspections and submit their comments
to the district commission of the State Environmental
Board. A State review committee furnishes the
district commission with a position paper representing
the views of reviewing agencies.133
Under Maine's Site Location Law,134 the Environmental
Improvement Commission, which is the regulatory agency,
relies for its information on a proposed project on
the developer's permit application (which must include
certain specified data on environmental effects) and
on review forms submitted by other State agencies,
some of which may undertake on-site investigations.
Hawaii, on the other hand, which has had State land
use controls since 1961, is also considering adopting
a broad EIS requirement. Under the Hawaiian Land Use
Law,136 the State Land Use Commission has divided the
entire State into four zones: urban, rural, agri-
cultrual, and conservation. The uses to be permitted
in each of these zones are specified in the law. The
Commission's major function is to consider applications
for zone boundary changes and special use permits.137
The proposed Hawaii Environmental Policy Act would
appear to require preparation of an impact report on
such applications.
California, which applies the EIS process to private
projects subject.to local government approval, also
has one of the nation's strongest local planning laws.
Some local planning directors in California express
the opinion that they have had authority for many years
under the zoning and subdivision laws to require in-
formation about the environmental effects of proposed
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developments, and that the EIS program superimposes
an unnecessary and burdensome requirement on the
planning system. However, many planners feel that
even with strong regulations and well-staffed local
planning units, the EIS provides an additional and
valuable means of forcing environmental factors to
be taken into account.
The environmental impact statement represents an
operational, case-by-case approach to many of the
same goals intended under comprehensive planning and
zoning. In California, it is being used in some
jurisdictions as a means of balancing long-term
environmental factors against more immediate economic
and political demands in the process of making
individual decisions on land use development. In
this sense, the EIS can provide a vehicle for
stabilizing the integrity of the comprehensive plan
and strengthen the more traditional means of land
use regulation.
ENFORCEMENT
>x
All of the States which .have an EIS requirement
designate an agency to coordi4iaJte__the program, or
at least to develop detailed guidelines. But that.
agency usually has no specific authority to insure
that an impact statement is prepared, or to reject
inadequately written reports. Only one State
(Minnesota) provides for the veto of a proposal
found to be inconsistent with the policies set forth
in its environmental policy act.
This absence of clear enforcement authority follows
the Federal example. Under NEPA responsibility for
compliance rests with the agency proposing the
action. NEPA says that copies of Federal impact
statements must be filed with the Council on
Environmental Quality, but does not say what CEQ is
to do with them.138 The Council has no veto power
over agency proposals and -cannot reject an inadequate
statement.
CEQ is responsible for issuing the NEPA guidelines,139
and that document requires Federal agencies "to be
responsive to a request by the Council" for the prepa-
ration and circulation of an EIS.140 Otherwise, the
Council's role is advisory. It assists agencies in
preparing their own procedure^ for implementing NEPA
and carries on "continuing consultation with agencies
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on their performance."141
However, it should be noted that under "Title II of
NEPA, the Council is designated as environmental
advisor to the President, and that decisions of
environmental agencies are subject to review by the
Chief Executive. In addition, Section 309 of the Clean
Air Actl42 requires the Environmental Protection Agency
to review and comment on Federal agency proposals sub-
ject to the EIS requirement. If the Administrator of
EPA determines that any sucfc proposal is unsatisfactory
from the standpoint of public health or welfare or
environmental quality, he must publish his determina-
tion and refer the matter to CEQ.
No doubt the absence of a "policeman" in the Federal
system is the main reason many impact statements have
been found to be inadequate. CEQ has expressed concern
"about upgrading the quality of information and analysis
presented in impact statement,"143 an(j ^e General
Accounting Office, after examining a number of state-
ments from several Federal agencies, concluded that
their usefulness was impaired by several common failings
inadequate discussion of the identified environmental
impacts, inadequate treatment of reviewing agencies'
comments, and inadequate consideration of alternatives
and their environmental impacts.144
Michael McCloskey, who as Executive Director of the
Sierra Club has been involved in several major disputes
over the adequacy of impact statements, recently wrote
that
. . . the lack of any rejection authority is
turning the requirement of environmental impact
reports into a hollow gesture. [CEQ] must be
given clear authority, at the very least, to
reject inadequately prepared reports. It is
now relying on persuasion alone to have poor
reports redone. . . [CEQ] still does not have
authority to keep agencies from violating the
National Environmental Policy Act.I45
Officials report similar problems with compliance
under the State laws. For example, the Puerto Rico
Environmental Quality Board in its 1972 annual report
says that "compliance with the EIS requirement is
still far from universal" and that ".some commonwealth
agencies are participating in the process more fully
than others."146 The 1972 annual report of the
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Montana Environmental Quality Council notes that
agencies "that -wish to minimize or ignore the environ-
mental effects of their actions naturally consider the
process irritating and burdensome" and points to
"adherence to old decision-making habits" as a major
problem. "In some instances," the Montana report
goes on to say, "the EIS is an after-the-fact ,
exercise used to justify decisions already made. Con-
sideration of alternatives is frequently inadequate,
and rarely is the ultimate alternative--taking no
action at all because of environmental consequences--
considered."147
Six States have given responsibility for their EIS
programs to environmental councils or boards similar
to the Federal CEQ.148 In four States, this function
is assigned to the governor's office or the state
planning unit within the governor's off ice, 149 an(j in
two States, to the natural resources department.150
California and Wisconsin split the responsibility
between the governor's office and the natural resources
agency, and Washington divides it between the Department
of Ecology and the Ecological Commission. North Carolina
assigns the function to its Council on State Goals and
Policy. Typically, these agencies coordinate the EIS
program among the various units of State government,
issue guidelines, and receive copies of impact state-
ments, or at least notification that a statement has
been prepared.
In California, for example, guidelines for the EIS
program are developed by the planning unit of the
Governor's Office and adopted by the Secretary of the
Resources Agency.151 State and local agencies must
file a notice of the completion of an EIS with the
Secretary;152 however, there are no sanctions for
failing to file these documents.I53 In fact, the law
provides specifically that failure to file notice with
the Resources Agency "shall not affect the validity of
the project."15* Moreover, the law does not say what
should be done with notices of completion, and the
Resources Agency takes no action on them beyond filing
them as a permanent record.155 There is no provision
in the California system for rejection of an inadequate
EIS.156 i
In practice, the California system is much weaker than
the Federal one. Although the Federal system may rely
mainly on persuasion to get agencies to comply with
NEPA, the U. S. Council on Environmental Quality does
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have a staff to monitor agencies' activities, call
their attention to violations, and work with them in
improving their procedures. The California Resources
Agency has no such staff.
In most of the States, "enforcement" of the impact
statement program is limited, as in California, to
requiring a copy or notice of each impact statement
to be furnished to the coordinating agency. What
should be done with the statement once it is received
is usually not specified. However, five States pro-
vide for some degree of discretion by higher authority,
In Hawaii, the Governor "approves" the EIS.15? In
North Carolina, the Council on State Goals and Policy
has the choice of accepting the EIS, approving it con-
ditionally contingent on changes specified by the
Council, or submitting it to the Governor for final
disposition. 158 jn Maryland, the Governor may delay
for up to 90 days any action which the EIS indicates
will threaten the public health and welfare.15^ In
Massachusetts, the Secretary of Environmental Affairs
"shall issue a written statement indicating whether
or not in his judgment said reports adequately and
properly comply" with the
The Minnesota law is the strongest. It authorizes
the Minnesota Environmental Quality Council not only
to require revision of inadequate impact statements
and delay implementation of an action, but to
"reverse or modify the decisions or proposal where
it finds, upon notice and hearing, that the action
or project is inconsistent" with the broad statement
of environmental policies and standards set forth in
the law.161
CITIZEN PARTICIPATION
Since the agencies responsible for State environmental
impact programs usually lack specific authority to
insure compliance, the major burden of enforcing EIS
requirements falls on citizen groups. By bringing
deficiencies to the attention of administrators or
applying political pressure, citizens have frequently
been successful in persuading an agency to prepare an
EIS when it has not done so or to revise an inadequate
document. And at least at the Federal level and in
California, agency officials are increasingly responsive
to public sentiment because of th.e large number of court
decisions supporting citizen demands and the ever-present
threat of litigation.
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At the Federal level, enforcement by citizen action
has been important in establishing NEPA's viability.
While NEPA itself says only that copies of an EIS
and agency coraments-on it "shall be made available
to ... the public,"162 the Federal guidelines
describe in some detail how and when the public is
to be involved. CEQ has made a vigorous effort to
provide mechanisms for citizen participation at the
agency level and to publicize and facilitate the
availability of impact statements. Still, CEQ notes
that
Unfortunately, some agencies are still slow
to implement fully the citizen involvement
requirements of the NEPA process. Too often
the burden rests with the public to find out
what is going on rather than with the agency
to keep the public informed.163
The Federal guidelines were recently amended to
increase opportunities for citizen participation in
the early stages of planning and decision-making.164
Like NEPA, most of the State laws and executive orders
require only that copies of impact statements be made
available to the public. California's act, for
example, provides only that an EIS be available for
public inspection and that a citizen may obtain a
copy by paying for its actual cost.165 Several of
the State laws make no reference to the public at
all. How citizens are to be included in the EIS
process, if at all, is left to the State guidelines
which, in many cases, are not very specific.
For instance, California's guidelines say only that
agencies "shall make provisions in their [EIS] pro-
cedures for wide public involvement, formal and in-
formal, consistent with their existing activities and
procedures."166 Michigan's regulations call for
"maximum use of public involvement procedures and
public hearings. . . A mechanism to inform the public
of the availability of [ impact statements] should be
developed by all agencies."167 North Carolina
specifies that agencies should consult with the public
"if deemed appropriate."168 And Puerto Rico's guide-
lines contain the rather ironic statement that, "After
allowing time for public response to the final EIS,
the issuing agency proceeds with its action."169
In order to have any influence on an impact statement
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(and, ultimately, on Low the EIS is used in deciding
whether to go ahead with a proposed action), citizens
must, first of all, know that it exists, and second, have
sufficient time to study and comment on it. Some formal
mechanism for public participation might also be helpful.
How does the public find out that an EIS is ready for
comment? At the Federal level, brief summaries of
draft and final impact statements, along with instructions
on how to obtain them and related information, are pub-
lished weekly in the Fede'ral Reg i s t er and monthly in
CEQ's 102 Monitor. Apparently, only two States issue
similar periodic, centralized lists of impact statements:
California and North Carolina.170 Another means of
informing the public is through notices in newspapers,
but apparently only two States require them. The
Wisconsin law calls for notice of a hearing on an EIS to
be published in a newspaper in the affected area (or,
if statewide, in the official State paper), and in that
State hearings are held on virtually all impact state-
ments. 171 The Massachusetts guidelines direct agencies
to give notice of a draft EIS in a newspaper of general
circulation in the area affected and also in a daily
statewide paper.172 The Washington State guidelines
specify that a news release be sent to newspapers in the
affected area, but that is no guarantee that it would
be published.173 pOr a time, Puerto Rico used news-
paper display advertisements to publicize impact state-
ments, but it discontinued the practice because of its
cost.
In the absence of a centralized, periodic list of state-
ments or newspaper advertising, how does an agency inform
the public that an EIS is available for comment? The
problem is in defining "the public." A few States have
attempted to come up with a working definition of the
term. Hawaii specifies that an EIS shall be disseminated
to "the various concerned agencies and citizens groups."174
Maryland calls for comment by agencies and "private organi-
zations and individuals with jurisdiction by law, special
expertise, or recognized interest."175 jn Montana, the
State Environmental Quality Council is required to "con-
sult with such representatives of science, industry,
agriculture, labor, conservation organizations, educa-
tional institutions, local governments and other groups,
as it deems advisable," and to use the services of such
organizations "to the fullest extent possible."176 The
Montana guidelines provide that "pre-draft outlines" of
impact statements will be circulated to "selected private
groups and individuals, and to private groups and indivi-
duals whose interests will be significantly affected by
the proposed action."177
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The Washington State Guidelines say that distribution
of a draft EIS should be made' to citizens and citizens'
organizations "who have specifically indicated [an]
interest in the proposed action, and have requested
the statement."178 While the Minnesota act makes no
special allowance for citizen participation in reviewing
impact statements, it contains the interesting pro-
vision that if a petition signed by not less than 500
persons is filed with the State Environmental Quality
Council, the Council "shall review the petition and,
where there is material evidence of the need for an
environmental review," require preparation of an
EIS.179
How much time is given for public review and comment?
The NEPA guidelines specify a minimum review period
of 45 days (recently changed from 30 days) from the
time notice of an EIS is published in the Federal
Register.18" Most States also require such a minimum
period, ranging from 20 to 60 days.181 The California
guidelines are an exception. They say only that "ade-
quate time" should be given for review and comment by
other agencies and the public. Such vague language
invites abuse: one local government in California
allows only five days for comment on an impact
statement.182
What mechanisms have the States created to facilitate
public participation? Public hearings are one means
of obtaining citizens' comments. Only Wisconsin re-
quires a hearing to be held on every EIS.183 The
California guidelines say that a hearing is a "widely
accepted desirable goal" and "should be held" if the
sponsor determines that it would further the purposes
of the law.184 Massachusetts agencies are "encouraged"
to hold hearings or more informal meetings on impact
statementslSS and the Michigan regulations stress
"maximum use of public involvement procedures and public
hearings."186 in other States, it appears that public
hearings on impact statements are held only if they are
otherwise required for the proposed action. j
With few exceptions, the States have not made it easy
for citizens to have a say in the EIS process. Yet,
as Russell Train has said, "An informed, concerned and
responsible citizenry is the crucial factor upon which
ultimately all environmental progress must depend."Io7
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OTHER ISSUES
There are a number of other important questions which
the States face in adopting environmental impact re-
quirements. 188 Our report on the California Environ-
mental Quality Act will discuss them in some detail.
They include the following:
1. What kinds of governmental actions should be
covered by the EIS program (aside from the issue of
private projects, discussed above)? Should the re-
quirement apply to regulatory activities and adoption
of broad policies and planning documents, as well as
public Works projects? Should it apply to agency
proposals for legislation? Should it extend to so-
called "beneficial" activities conducted for the ex-
press purpose of protecting the environment, for ex-
ample, setting air and water quality standards?
Should it cover actions which have an indirect but
demonstrable effect on the environment, such as
electrical rate-setting by a State public service
commission or a publicly-owned utility?
2. What special exemptions should be made to the
general EIS requirement, if any? Should these be
set forth in detail in the law or left to the dis-
cretion of the responsible agency? Typical exemptions
are for emergency or temporary activities, and for
"ministerial" acts, that is, actions in which the
agency exercises no discretion, but rather acts in
a prescribed manrier in accordance with a statutory or
regulatory mandate. Some States provide for "cate-
gorical exemptions" to be granted administratively;
these might include such areas as wildlife preser-
vation programs and experimental and research projects
3. Should the EIS requirement apply only to "major"
actions significantly affecting the environment (as
in most States), or to all actions significantly
affecting the environment (as in California and
Massachusetts)? In practice, how are such terms as
"major action," "significant effect," and "environ-
ment" defined?
4. If private activities are subject to the EIS
requirement, who should write the impact statement?
In some cases, draft statements are being prepared
by developers or consultants hired by them. If the
EIS is written by the agency should the applicant
or the public pay for the cost of preparing it?
33
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5. All of the State EIS requirements impose an obli-
gation on the responsible agency to consult with other
agencies -which Tiave special expertise or interest in a
proposed action, on the environmental impacts involved.
What procedures can be established to insure that all
concerned agencies — State, local and Federal--are given
an opportunity to comment? Can the State and areawide
A-95 clearinghouses!89 which are already used to pro-
cess Federal impact statements be used also for the
State program?
6. How much will it cost the State to adopt an EIS
requirement? This depends largely on the scope of
the program. Cost has been a major factor in the
reluctance of some States to enact such a procedure.
It was given as one of the reasons for the veto of
an EIS program in New York.
7. What effect will the new EIS requirement have on
developments where construction has started, permits
have been issued, or financing has been arranged?
Should there be a "grandfather clause?"
8. Should there be a statute of limitations for
legal actions brought under the requirement so as
not to affect actions already implemented?
9. What happens when a project requires an EIS
under NEPA as well as the State program?
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SECTION VI
THE NEED FOR EVALUATION AND COMMUNICATION
Officials and citizen environmentalists who are
trying to develop environmental impact programs for
their States, or who are struggling with the problems
of administering existing programs, have few sources
of guidance. Our own experience demonstrates this.
We had to begin our survey virtually from scratch,
and almost all of what we found out about EIS require-
ments (except from the laws themselves) came in response
to letters we sent to officials in the various States.
More than a few of those officials wrote back asking
for information on what their sister States were doing
in the field.190
Very little has been published on State EIS requirements
other than California's. This is accounted for partly
by the newness of some of the programs, but not entire-
ly; most of the requirements described in this report
are over two years old. And what has appeared in print
(on NEPA as well as the State acts) is generally legal
analysis. Not enough attention has been given to how
the process is carried out on a day-to-day basis.
The environmental impact statement was a Federal innova-
tion. The States, have relied mainly on the Federal
example in setting up their own programs, and many of
NEPA's faults as well as its strengths have been
transferred to the State level. But now the States
are starting to play their traditional role as experi-
mental laboratories. In responding to a number of
factors--deficiencies in the Federal system, problems
peculiar to the States, differences in institutions,
citizen demands--they are beginning to depart from
the general model and advance the state of the art.
Minnesota's strong enforcement provisions, for example,
are an important departure from those in the Federal
system. California and Massachusetts, in applying
the EIS requirement to all significant (not only "major")
actions, public and private, State and local, go far be-
yond the Federal Government and the other States in
the kind and number of activities reached by their pro-
grams. Innovations such as these bear close watching.
If they succeed, some of them might be adopted at the
Federal level as well as by the States. It is important
35
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that the States at least know the choices available to
them.
Two needs are apparent. First, there should be study
and evaluation of environmental impact programs in the
States. We are recommending that the Federal Govern-
ment sponsor objective research on selected State EIS
programs. These studies should be done on the ground
by institutions or individuals thoroughly familiar
with their States' environmental problems and political
systems. They should focus on the practical effects of
the programs, rather than their strictly legal aspects.
They should emphasize the problems of enforcing the EIS
requirement, interagency consultation, involving citi-
zens in the review process, and applying the program
to private projects and local governments. The rela-
tionship between the environmental impact process and
land use planning and regulation should also be
studied. Finally, they should take a hard look at
results. Does the EIS program work? Are environmental
factors brought into the decisionmaking process early
enough to make a difference?
At first, this project might be limited to an analysis
of the innovative programs of California, Massachusetts,
and Minnesota. In California, more information is
needed on the adequacy of environmental impact state-
ments and their role in influencing decisions. A legal
analysis of court decisions under the California law
would also be useful. The impact of the new Massachusetts
law, which is similar to California's, also warrants close
study. Its enforcement provisions, which are stronger
than the California law, merit special attention. In
Minnesota, research should focus on an evaluation of
the role of the State Environmental Quality Council,
which has broad powers to force compliance with the
EIS requirement, and which can veto a proposed project
if the impact statement indicates that approval would
be contrary to State policy--authority that goes far
beyond that provided for by other States.
The second need is for a mechanism for communication
among the States on the problems of implementing and
administering EIS requirements. Officials who need
information on what their sister States have done in
this new and complex field now have no central source
of help to turn to.
Diffusion of innovations among the States depends
mainly on the existence of specialized professional
36
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associations of State officials, whjose major function
is to facilitate communication among the States.-^l
The environmental impact process cuts across the
traditional lines of specialized communication. In
some States, the EIS program is the primary responsi-
bility of an environmental quality council; in others,
of the State planning office or the natural resources
agency. Furthermore, the process involves officials
in a wide range of other agencies as authors or
reviewers of impact statements, for example, fish and
game experts, highway designers, and public health
officers. The only professional interest these people
have in common is the EIS process.
Several professional associations have become interested
in the problems of State EIS programs: the Council of
State Planning Agencies, the American Society of Plan-
ning Officials (ASPO), and the National Association of
Attorneys General, to mention three. But no existing
organization includes even the key people in the States
who are involved with impact statements.
We are recommending that a new national professional
association be created for officials concerned with
EIS programs. Through the usual meetings, newsletters,
and special publications, and also through more infor-
mal contacts, such an organization could facilitate
exchange of information on problems of developing
and carrying out the environmental review process.
This association should include not only State govern-
ment officials, but also Federal and local officials
who work with impact statements and those who are
attempting to develop new requirements. The organi-
zation might also include selected representatives of
citizens' organizations, lawyers, and scholars. And
it might well invite the participation of foreign
officials concerned with similar problems.-"-92 An
alternative to such an organization would be a national
clearinghouse on EIS programs.
37
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SECTION VII
ACKNOWLEDGEMENTS
Thanks are due to:
The many State officials who patiently answered our
requests for information, often in considerable
detail.
Arthur W. Jokela, Center for California Public Affairs,
for comments on several parts of this report and ideas
on how the impact statement process relates to land use
planning.
Nicholas Yost, California Department of Justice, and
Donald G. Hagman, UCLA Law School, for letting us
read drafts of articles.
Norman E. Hill, The Resources Agency of California,
for comments on the draft report.
The people inside and outside of government who were
contacted in the California phase of the project and
helped us to get a perspective on the problems that
other States face in implementing impact requirements.
The Environmental Protection Agency for its support of
the project, and particularly to Edwin Royce and Harold
Kibby, the Project Officer, both of the Office of
Research and Development; and to Ed Twomey, Office of
Legislation.
All errors of fact, faults of judgment and omissions
are the author's responsibility.
39
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SECTION VIII
REFERENCES
1. Trzyna, TLaddeus C., Environmental Impact Require-
ments in the States. Office of Research and Develop-
ment, Environmental Protection Agency, Washington,
D. C. (Socioeconomic Environmental Studies Series,
EPA-R5-73-024), July 1973. Reprinted in 102
Monitor, the monthly bulletin of the U. S. Council
on Environmental Quality, May 1973, pp. 21-41.
2. Unless otherwise stated, information on implementa-
tion of impact requirements was obtained from the
State officials listed in Appendix A. Sources of
information 6n the California program will be
referenced in the companion report.
3. Environmental Quality: The Fourth Annual Report of
the CpunciI on Environmental Qua!ity.Government
Printing Office, 1973, p. Z37.
4. Notable examples are the interpretation of NEPA by
the U. S. Eighth Circuit Court of Appeals in
Environmental Defense Fund v. United States Army
Corps ot Engineers, 47U F. Zd Z89, 4 ERC 17Z1
C8th Cir. 1972), cert, denied, -- U.S. -- 5 ERC 1416
(1973); and the California Supreme Court's ruling
on that State's act in Friends of Mammoth v. Board
of Supervisors of Mono County, 8 C"3d 247,4 ERC
1593, mod. 1705 (Calif. Sup. Ct., 1972).
5. A discussion of these policy declarations and their
relation to the EIS requirement is included in a
paper by Nicholas C. Yost, "NEPA's Progeny: State
Environmental Policy Acts," to be published in
Environment Reporter.
6. National Environmental Policy Act of 1969, 42 U.S.C.
4321 et seq., 83 Stat. 852, Pub. L. 91-190 (herein-
after cited as NEPA).
7. NEPA, Sec. 101.
8. NEPA, Sec. 102.
9. NEPA, Sec.
41
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10. Much. has. been written about the Federal EIS
requirement. The annual reports of the Council
on Environmental Quality are basic to an under-
standing of how the Federal process works. The
most comprehensive examination from a legal
standpoint is in Frederick R. Anderson's book,
NEPA.in the Courts: A Legal Analysis of the
National Environmental Policy Act (.Resources for
the Future, Washington, D. C., 1973). See also
Steven B. Fishman's article, "A Preliminary
Assessment of the National Environmental Policy
Act of 1969," Urban Law Annual, 1973, pp. 209-241.
Non-legal, as well as legal, material is included
in a bibliography available from the Council of
Planning Librarians CP- 0. Box 229, Monticello,
Illinois 61856), "National Environmental Policy
Act of 1969 (P.L. 91-190): Bibliography on
Impact Assessment Methods and Legal Considerations,"
Exchange Bibliography no. 415, June 1973.
11. "Preparation of Environmental Impact Statements:
Guidelines," 38 Fed. Reg. 20550-20562, August 1,
1973, Sec. 1500.9. This document, issued by the
Council on Environmental Quality, is hereinafter
cited as the NEPA guidelines or Federal guidelines.
It is reprinted in CEQ's 1973 annual report,
pp. 416-439.
12. As used in this report, the term "State" applies
.to Puerto Rico as well as the fifty States. As
far as can be determined, none of the other
Territories has considered an EIS requirement.
Some States use other terms for environmental
-'impact statements, including "environmental
impact report" and "environmental assessment."
As used in this report, the term "environmental
impact statement" includes all such documents.
•'•?•• •
13. See Appendix A for a complete listing of special
EIS requirements.
14. Reilly, William K., ed/,: The Use of Land: A
Citizens' Policy Guide to Urban Growth"Thomas
Y. Crowell Company, New York, 1973, p. 206. The
task force, funded by The Rockefeller Brothers '
Fund, was created by the Citii&ens1 Advisory '
Committee on Environmental Quality, a body estab-
lished by presidential executive order in 1969.
15. California Environmental Quality Act of 1970,
42
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Cal. Pub. Res. Code Sees. 21000-21001 (hereinafter
cited as California law).
16. See note 4 above.
17. "Guidelines for Implementation of the California
Environmental Quality Act," California Administra-
tive Register 73, No. 6-B, February 10, 1973,
Sees. 15000-15166 (hereinafter cited as California
guidelines).
18. "Proposed Amendments to Guidelines for Environmental
Impact Reports," memorandum from the Secretary for
Resources, August 31, 1973.
19. California law, Sec. 21082. The most comprehensive
legal analysis of the amended act to date is Carl
J. Seneker, II, "The Legislative Response to Friends
of Mammoth," California State Bar Journal, 48, No. 2",
pp. 126-189. 7
20. Executive Order No. 16, October 4, 1972.
21. Pub. Act No. 73-562 (hereinafter cited as
Connecticut law).
22. Connecticut law, Sec. 3.
23. "Draft, Guidelines for the Implementation of
Executive Order No. 16," transmitted under a
memorandum from the Governor to State agencies,
December 13, 1972 (hereinafter cited as Connecticut
guidelines).
24. Hawaii Executive Order, August 23, 1971 (hereinafter
cited as Hawaii executive order).
25. "Instruction Manual for Developing and Processing
Draft Environmental Impact Statements," October 1971.
26. Ind. Code 13-1-10 (hereinafter cited as Indiana law).
27. Md. Ann. Code art. 41, Sees. 447-453 (hereinafter
cited as Maryland law).
28. Mass. Gen. Laws Ann. ch. 30, Sees. 61-62 (herein-
after cited as Massachusetts law).
29. "Regulations to Create a Uniform System for the
Preparation of Environmental Impact Reports," issued
by the office of the Secretary of the Commonwealth,
43
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July 6, 1973 .(hereinafter cited as Massachusetts
guidelines).
30. Massachusetts law, Sec. 62.
31. Michigan Executive Directive 1971-10.
32. Michigan Executive Order 1973-9 (hereinafter
cited as Michigan executive order).
33. "Guidelines for Implementing State of Michigan
Executive Directive 1971-10," n.d., Sec. 4 (A)
(hereinafter cited as Michigan guidelines).
34. Michigan guidelines, Sec. 5 (A) (2).
35. Minnesota Environmental Policy Act, Chap. 412,
Laws 1973 (hereinafter cited as Minnesota law).
36. Minnesota law, Sec. 4 (1).
37. Minnesota law, Sec. 4 (2).
38. Minnesota law, Sec. 4 (2).
39. Minnesota law, Sec. 4 (3).
40. Minnesota law, Sec. 4 (9).
41. Montana Environmental Policy Act, Mont. Rev.
Codes Ann. Sec. 69-6501 et seq. (hereinafter
cited as Montana law).
42. Montana law, Sec. 69-6504 (b) (3).
43. Environmental Quality Council, First Annual Report,
pp. 126-130.
44. "Revised Guidelines for Environmental Impact
Statements Required by the Montana Environmental
Policy Act of 1971," July 21, 1972, Sec. 5 (2)
(hereinafter cited as Montana guidelines).
45. Environmental Quality Control law, N. M. Stat.
Ann. Sees. 12-20-1 et seq. (hereinafter cited
as New Mexico law).
46. New Mexico law, Sec. 12-20-6 (C).
47. North Carolina Environmental Policy Act, N. C. Gen.
' ' Stat. Sec. 113 (A) et seq. (hereinafter cited as
44
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North Carolina law).
48. North Carolina law, Sec. 4 (2).
49. North Carolina law, Sec. 8.
50. North Carolina law, Sec. 9 (4).
51. Willey, Joan, A North Carolina Citizen's Guide
to Commenting on Environmental Impact Statements.
North Carolina State University, Division of
Continuing Education (P. 0. Box 5125, Raleigh,
North Carolina 27607), 1973, p. 2. The text
of the Holden Beach ordinance is included in
this report.
52. Memorandum from the Governor to State agencies,
February 9, 1972.
•5
53. "The North Carolina Environmental Policy Act,"
a report to the Legislative Research Commission
by Governor Robert W. Scott, July 1972.
54. "House Votes EPA Four More Years," Durham Morning
Herald, March 29, 1973.
55. Puerto Rico Public Environmental Policy Act,
P. R. Laws Ann. tit. 12, Sees. 1121 et seq.
(hereinafter cited as Puerto Rico law).
56. "Draft of the Guidelines for Environmental Impact
Statements," November 1971 (hereinafter cited as
Puerto Rico guidelines).
57. The policy, guidelines, and procedures are con-
tained in "Environment for Tomorrow: The Texas
Response," Office of the Governor, Division of
Planning Coordination, January 1, 1973.
58. Virginia Environmental Policy Act, Chapt. 384,
Acts 1973 (hereinafter cited as Virginia law).
59. Virginia law, Sec. 1 (1) (b).
60. State Environmental Policy Act, Wash. Rev. Code
Ann. Sees. 43.21C.010 - 43.21C.900 (hereinafter
cited as Washington law).
61. Washington law, Sec. 3 (2).
62. "Preliminary Guidelines for Implementation of the
-------
State Environmental Policy Act of 1971," March 1
1972 (hereinafter cited as Washington guidelines).
63. Wash. Rev. Code Ann. Sees. 47.04.110 - 47.04.130
(1971).
64i Chap. 286, Laws 1971.
65. Wis. Stat. Sec. 1.11; Chap. 274, Laws 1971
(hereinafter cited as Wisconsin law).
66V. Wisconsin law, Sec. 1.11 (2) (c) (6).
674 Wisconsin law, Sec. 1.11 (2) (d).
68. Wis. Stat. Sees. 23.11 (5), 30.19 (4), and 31.06 (3);
Chap. 273, Laws 1971. This law was approved on the
same date as the Environmental Policy Act.
69. Wis. Stat. Sec. 23.11 (5).
70. "Guidelines for State Agencies under the Wisconsin
Environmental Policy Act," n.d. (received January
1973) (hereinafter cited as Wisconsin guidelines).
71. Wisconsin law, Sec. 1.11 (2) (d).
72. Problems of implementing the Wisconsin law are
discussed in a report by Jon A. Kusler and Farnum
Alston, "Environmental Impact Evaluation Pro-
cedures; Some Recommendations for Wisconsin,"
Institute for Environmental Studies, University
of Wisconsin, Madison, December 1972.
73. This is not to say that the drafters of EIS
requirements are always aware of the choices
available to them; some of the laws and regula-
tions described in this report appear to have
been written with little thought about how the
requirement would be implemented.
74. For example, in Friends of Mammoth v. Mono
County (See note 4), and in City of Roswell y.
itfew Mexico Water Quality Control Commission,
305 P.Zd 1Z37, 4 JriKC i/53, 1754, 3 ELK ZUlSl
(N.M. Ct..of App. 1972).
75. NEPA, Sec. 102 (2) (C).
76. See note 11 above.
46
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77. NEPA guidelines, Sec. 1500.8 (a) (8).
78. California law, Sec. 21100.
79. Maryland law, Sec. 451.
80. Massachusetts law, Sec. 62.
81. North Carolina law, Sec. 4 (2) (c).
82. Virginia law, Sec. 2.
83. See Appendix B (Sec. b (b) (6)).
84. NEPA guidelines, Sec. 1500.8 (a) (4).
85. California law, Sec. 21100.
86. See Appendix B (Sec. 5 (b) (7)).
87. NEPA guidelines, Sec. ±500.8 (a) (1) and (a) (3) (ii)
88. Yost, "NEPA's Progeny," see note 5.
89. Michigan executive order, Sec. 7 (b).
90. Minnesota law, Sec. 4.
91. Montana guidelines, Sec. 6.
92. Washington guidelines, Sec. F (2) (B).
93. Wisconsin law, Sec. 1.11 (2).
94. NEPA guidelines, Sec. 1500.8 (3) (ii). Sec.
1500.8 (8) says that agencies which prepare
cost-benefit analyses should attach them to
the EIS, with an indication of the extent to
which environmental costs are not reflected in
them.
95. "Environment for Tomorrow" (see note 57), page 16.
96. Wisconsin law, Sec. 1.11 (2).
97. NEPA guidelines, Sec. 1500.8 (a) (3) (i).
98. Minnesota law, Sec. 4.
99. Hawaii executive order, Sec. 1 (b).
47
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lOt). Indiana law, Sec. 13-1-1-10-3.
.101.. Montana law, Sec. 69-6504.
>»• • i
1 - ** - •
"109. See Appendix B (Sees. 3 (e) and 4 (a)).
.lie, California law, Sec. 21065 (c).
111. California law, Sec. 21063.
It2, Massachusetts law, Sec. 62.
.113. Massachusetts guidelines, Sec. 2.4.
• * i
114. .Washington law, Sec. 3 (2).
ITS.;. Washington guidelines, page 9.
!•- . ,
116. Puerto Rico law, Art. 4 (2).
117. Puerto Rico guidelines, Sec. 7.
• *
118% Puerto Rico guidelines, Sec. 9 (BJ (2).
48
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119. Michigan guidelines, Sec. 5 (2).
120. Minnesota law, Sec. 4 (1).
121. Montana guidelines, Sec. 5 (2).
122. See note 69.
123. Indiana law, Sec. 13-1-10-6.
124. This is discussed in Yost, "NEPA's Progeny" (See
note 5).
125. NEPA guidelines, Sec. 1500.5 (a) (2).
126. Only one local government has used it (See note 51J.
127. Maryland law, Sec. 449 (A).
128. Minnesota law, Sec. 4 (1).
129. Connecticut law, Sec. 3.
130. It should be noted that some local governments
have adopted EIS procedures independently of -
State requirements.
131. For a thorough discussion of this trend;, see 'The
Quiet Revolution in Land Use Control, prepared"
for the Council on Environmental Quality by
Fred Bosselman and David Callies (Government
Printing Office, Washington, 1971).
132. Act 250 of the Vermont Laws, 1970; Vt. Stat. Ann.'
tit. 10, Sees. 6001 et seq.
133. The Quiet Revolution, pp. 54-89.
134. Maine Site Location of Development Act of 1970';
Me. Rev. Stat. Ann. tit. 38, Sees. 481 et seq.
135. The Quiet Revolution, pp. 187-199.
136. Hawaii Rev. Stat. ch. 205.
137. The Quiet Revolution, pp. 5-34.
138. NEPA, Sec. 102 (2).
139. Executive Order 11514.
-------
140.i- NEPA guidelines, Sec, 1500.11 00-
141. Environmental QuaTi'ty; The Third Annual Report
ot the Council on Eriyironmeritar 'Quality.
Government Printing Office, Washington, 1972,
p. 246.
t
142.-- 42 U.S.C. 4332, 83 Stat. 853, Pub. L. 91-604.
i *
143. CEQ fourth annual report (See note 3), p. 245.
144. Comptroller General of the U.S., Adequacy of
Selected Environmental Statements Prepared under
the National Environmental Policy Act of 1969,
Report No. B-170186, to the Subcommittee on
Fisheries and Wildlife Conservation of the
Committee on Merchant Marine and Fisheries,
> U. S. House of Representatives, November 27, 1972.
145. McCloskey, Michael, "Reorganizing the Federal
Environmental Effort," Duquesne Law Review,
11, No. 4, p. 484.
146. Environmental Report 1972. The Environmental
Quality Board, Santurce, 1972, p. 6.
147. Environmental Quality Council, First Annual
Report.Environmental Quality Council, Helena,
1972, p. 128.
148. Indiana, Michigan, Minnesota, Montana, New
Mexico, and Puerto Rico.
149. Connecticut, Hawaii, Maryland, and Texas.
150. Massachusetts and Virginia.
151. California law, Sec. 21083.
152. California law, Sec. 21108.
153.- '^However, under another-provision of the California
law (Sec. 21152), local governments approving
projects subject to the ElS requirement must file
notice with the County clerk. One of the purposes
of this requirement is to start the running of a
30-day statute of limitations on challenges to a
•'project. If the notice is not filed, the statute
of limitations does not begin to riin. Thus,
public agencies have an incentive to comply with
this provision. However, the County clerk is not
50
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required to take any special measures to publicize
the action.
154. California law, Sec. 21161.
155. The State Office of Planning and Research receives
copies of impact statements generated by State (but
not local) agencies and comments on them from the
standpoint of State land use and population policy.
156. Although State administrative decisions are sub-
ject to review by the Governor or by various State
boards and commissions.
157. Hawaii executive order, Sec. i.
158. Memorandum from the Governor to State agencies,
February 9, 1972, transmitting the North Carolina
guidelines.
159. Maryland law, Sec. 451 (A) (13) (D).
160. Massachusetts law, Sec. 62.
161. Minnesota law, Sec. 4 (9).
162. NEPA, Sec. 102 (2) (C).
163. CEQ fourth annual report (See note 3), p. 236.
164. These changes are discussed in CEQ's fourth
annual report, pp. 234-236.
165. California law, Sec. 21105.
166. California guidelines, Sec. 15164.
167. Michigan guidelines, Sec. 3.
168. North Carolina guidelines, Sec. II (A).
169. Puerto Rico guidelines, Sec. 5. This wording may
be the result of inadequate translation from the
original Spanish document.
170. A California EIR Monitor will be published twice-
monthly by the Resources Agency beginning in
January 1974; subscriptions will cost $20 a year.
North Carolina includes such a listing in its
Environmental Bulletin.
51
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171. North Carolina law, Sec. 1.11 (2) C<1) .
172. Massachusetts guidelines, Sec. 7.3.
173. Washington guidelines, Sec. 2 (4).
174. Hawaii executive order, Sec. 1 (d) (3).
175. Maryland law, Sec. 451 (A) (3).
176. Montana law, Sec. 69-6517.
177. Montana guidelines, Sec. 5 (C) .
178. Washington guidelines, Part 6.
179. Minnesota law, Sec. 4 (3).
180. NEPA guidelines, Sec. 1500.11 (c).
181. Hawaii specifies a minimum period of 20 days;
Maryland, Wisconsin, Montana, Michigan, Massa-
chusetts, and Puerto Rico, 30 days; Connecticut
and North Carolina, 45 days; and Washington,
60 days. The time period is usually measured
from the date of publication of the EIS or its
receipt by the coordinating agency. Some States
provide for extensions of time at the request
of a reviewing agency, but not by the public.
182. California guidelines, Sec. 15160, which ex-
plains that "These Guidelines do not provide
a fixed period of time for this review and con-
sultation process in order to allow variations
according to local needs . . . the time limits
in the federal guidelines provide an example
that may be followed in some situations."
The proposed amendments (see note 18) call for
a minimum period of 30 days.
183. Wisconsin law, Sec. 1.11 (d) .
184. California guidelines, Sec. 15165.
185. Massachusetts guidelines, Sec. 7.5.
186. Michigan guidelines, Sec. 3.
4
187. As quoted by Gladwin Hill, Madman in a Lifeboat:
Issues of the Environmental urisis jJohn Day,
New YorJc, iy/3j, p. nz. "~
52
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188. Some of these problems are discussed in the
Federal context by Anderson, NEPA in the Courts
(See note 10).
189. Mechanisms set up under Office of Management and
Budget (OMB) Circular A-95. See NEPA guidelines,
Sec. 1500.9 (c).
190. One State official, for instance, asked for "a
list of the states that have adopted such pro-
cedures and copies of any implementing documents
that other states send you. This would cut out
the necessity for each state to write other
states for similar information. This information
is needed as soon as possible, not when your
study is completed late in 1973."
191. Walker, Jack L., "The Diffusion of Innovations
Among the American States." The American Political
Science Review, 63, No. 3, pp. 893-898 (I9t>9).
192. The only NEPA-type legislation outside the U. S.
that has come to our attention is Quebec's
Environmental Quality Act (Loi de la qualite de
1'environnement), Chapter 49 of the Statutes of
1972. Section 22 of that law reads in part:
The Director [of Environment Protection]
shall . . . require a study to be made
on the impact that the carrying out of
the project will have on the environment
and may require the applicant to carry
out certain research or experiments
which he indicates respecting the project . . .
The Quebec requirement appears to apply to a
wide range of land and industrial developments.
We understand that the Federal Governments of
Canada and Australia have also adopted EIS
procedures administratively.
193. "Guidelines--Environmental Impact Statement,"
n.d. We appreciate the help of David F. Moore,
North Jersey Conservation Foundation, in
bringing the New Jersey requirements to our
attention. The Foundation (300 Mendham Rd.,
Morristown, New Jersey 07960) has issued a
pamphlet discussing the EIS process: "The
Process of Environmental Assessment--Options
and Limits," by Richard E. Galantowicz, 1972.
-------
194.. By Norman E. Hill. Excerpted from Second
National Symposiuin on Sta't'e'JEriv'i'rp'rim'e'rit'aT
Legislation, April 9-12, 1975, Arlington,
Virginia. Council of State Governments
17th St., N. W., Washington, D. C. 20036),
1973, pp. 20-22.
54
-------
SECTION IX
APPENDICES
Page
A. State Requirements and Proposals
for Environmental Impact Statements 57
B. Suggested State Environmental Policy Act 73
55
-------
APPENDIX A
STATE REQUIREMENTS AND PROPOSALS
FOR ENVIRONMENTAL IMPACT STATEMENTS
57
-------
State
EIS Requirement and/or Proposals
Contact
Alabama
None
Edwin G. Hudspeth
Policy Studies Division
Alabama Development Office
State Office Building
Montgomery, AL 36104
Alaska
Cn
00
None. However, Department of
Environmental Conservation re-
views projects which have "po-
tential for environmental im-
pact" and submits comments to
appropriate agencies.
Jerry Reinwand
Special Assistant to Commissioner
Department of Environmental
Conservation
Pouch 0
Juneau, AK 99801
Arizona
No general requirement. Game
and Fish Commission on July 2,
1971 adopted a policy requiring
Game and Fish Department to
prepare impact statements on
proposed water-oriented develop-
ment projects. Conservationists
have proposed a State policy act
similar to California's.
Robert D. Curtis, Chief
Wildlife Planning and Development
Division
Arizona Game and Fish Department
2222 W. Greenway Rd.
Phoenix, AZ 85023
Arkansas
None
Harold E. Alexander
Special Advisor, Env'l Affairs
Arkansas Department of Planning
Game and Fish Building
Little Rock, AR 72201
-------
State
EIS Requirement and/or Proposals
Contact
California
"California Environmantal Quality
Act of 1970 (Cal. Pub. Res. Code
Sees. 21000-21174). See text.
Norman E. Hill, Special Assistant
to the Secretary for Resources
The Resources Agency
1416 Ninth St.
Sacramento. CA 95815
Colorado
tn
No current requirement. A pro-
posed Colorado Environmental
Policy Act (Senate Bill 43, 1973
Sess.) would require an EIS on
public and private actions ap-
proved by any unit of State or
local government.
David F. Morrissey
Assistant Director
Colorado Legislative Council
46 State Capitol
Denver, CO 80203
Connecticut
Executive Order No. 16, October
4, 1972, is currently in force.
The Connecticut Environmental
Policy Act (Pub. Act No. 73-562),
approved in 1973, will not take
effect until February 1, 1975.
See text.
George Russell, Director
Education Programs
Department of Environmental
Protection
State Office Building
Hartford, CT 06115
Delaware
No general requirement, and
none proposed. Under the
Delaware Coastal Zone Act (Del.
Code Ann. tit. 7, Sees. 7001 et
seq.), applicants for coastal
John Sherman, Chief
Coastal Zone Management
Delaware State Planning Office
530 S. duPont Highway
Dover, DE 19901
-------
State
EIS Requirement and/or Proposals
Contact
zone permits must submit an EIS
on proposed manufacturing pro-
jects.^ __________^_
District of
Columbia
No current requirement. A pro-
posal to require an EIS for
"major construction projects"
is under consideration.
Malcolm C. Hope, Director
Office of Environmental Planning
Department of Environmental
Services
415 12th St., N. W.
Washington, D. C. 20004
Florida
No requirement. A bill similar
to NEPA was introduced in the
1972 session of the Legislature,
but failed to pass.
James K. Lewis, Director of Staff
Committee on Environmental
Pollution Control
Florida House of Representatives
217 Holland Building
Tallahassee, FL 52504
Georgia
No general requirement. Impact
statements are required, however,
for projects proposed to be un-
dertaken by the Georgia Tollways
Authority. The Office of Plan-
ning and Research, Department of
Natural Resources, is considering
drafting legislation to require
an EIS for certain state and lo-
cal actions.
James T. Mclntyre, Director
Office of Planning and Budget
Executive Department
270 Washington St., S. W.
Atlanta, GA 50554
-------
State
EIS Requirement and/or Proposals
Contact
Hawai i
Executive Order, August 23, 1971.
See text. Nine bills to give the
requirement a statutory basis were
introduced in the 1973 Legisla-
ture, but only one was reported
from committee (House Bill 1522).
The Temporary Commission for
Statewide Environmental Policy
Act, including an EIS require-
ment applicable to private pro-
jects and local actions.
Richard E. Marland
Interim Director
Office of Environmental Quality
Control, Office of the Governor
550 Halekauwila St., Room 301
Honolulu, HI 96813
Idaho
None
Glenn W. Nichols, Director
State Planning and Community
Affairs Agency
State House
Boise.) ID 85707
Illinois
No requirement. Governor
Richard B. Ogilyie proposed
legislation similar to NEPA
in 1972, but it failed to
pass.
Michael Schneiderman, Director
Institute for Environmental
. Quality
309 W. Washington St.
Chicago, IL 60606
-------
State
EIS Requirement and/or Proposals
Contact
Indiana
Public Law 98, 1972 (Ind. Code
13-1-10). Not yet implemented.
See text.
Ralph C. Pickard, Technical Sec'y
Environmental Management Board
1330 W. Michigan St.
Indianapolis, IN 46206
Iowa
to
No requirement. There has been
"considerable discussion" among
State officials of an EIS re-
quirement, but it appears un-
likely that the Legislature will
take any action in the near
future.
Peter R. Hamlin
Environmental Coordinator
Office for Planning and Programming
523 E. 12th St.
Des Moines, IA 50319
Kansas
None
John P. Halligan, Director
Planning Division
Department of Economic Development
State Office Building
Topeka, KS 66612
Kentucky
None
Bernard T. Carter
Executive Assistant
Department of Natural Resources
Frankfort, KY 40601
Louisiana
No requirement. Legislation to
establish a general EIS program
(House Bill 1150) was defeated
in the 1972 Session of the
Legislature.
Eddie L. Schwertz, Jr.
Assistant Director
Office of State Planning
P. 0. Box 44425
Baton Rouge, LA 70804
-------
State
EIS Requirement and/or Proposals
Contact
Maine
None. There was some interest
among conservationists in intro-
ducing a bill in the 1973 Session
of the Legislature, but this
legislation did not materialize.
William R. Adams, Jr.
Commissioner
Department of Environmental
Protection
Augusta, ME 04330
Maryland
Maryland Environmental Policy Act
(Md. Ann. Code art. 41, Sees.
447-453), approved in 1973. See
text.
Vladimir Wahbe
Secretary of State Planning
301 W. Preston St.
Baltimore, MD 21201
o\
Massachu-
setts
Mass. Gen. Laws Ann. ch. 30,
Sees. 61-62. See text.
Harley F. Laing, Legal Counsel
Executive Office of Environmental
Affairs
18 Tremont St.
Boston, MA 02408
Michigan
Executive Order 1973-9.
text.
See
Terry L. Yonker, Executive Sec'y
Environmental Review Board
Department of Management and
Budget
Lansing, MI 48915
Minnesota
Chap. 412, Laws 1973.
text.
See
Joseph E. Sizer, Director
Environmental Planning
State Planning Agency
802 Capitol Square Building
St. Paul, MN 55101
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State
EIS Requirement and/or Proposals
Contact
Missis-
sippi
None. A proposal to create a
coastal zone management pro-
gram, including EIS require-
ments, died in the 1973 Session
of the Legislature.
Edward A. May, Jr., Assistant to
the Coordinator
Federal-State Programs
Office of the Governor
510 Lamar Life Building
Jackson, MS 39201 ^___
Missouri
o\
No requirement. Two bills simi-
lar to NEPA were introduced in
the 1972 Session of the General
Assembly; both died in committee,
The State administration has
created an Environmental Impact
Statement Task Force to evaluate
other State policy acts and make
recommendations.
R. Brinkworth
Chief Planning Specialist
Comprehensive Health Planning
Department of Community Affairs
505 Missouri Blvd.
Jefferson City, MO 65101
Montana
Montana Environmental Policy
Act (Mont. Rev. Codes Ann.
Sees. 69-6501 et seq.), 1971.
See text.
Fletcher E. Newby
Executive Director
Environmental Quality Council
Capitol Station
Helena, MT 59601
Nebraska
No general requirement, and
none proposed. Department of
Roads prepares impact state-
ments on State-funded highway
projects.
Robert D. Kuzelka
Comprehensive Planning
Coordinator
Office of Planning and Programming
Box 94601, State Capitol
Lincoln, NB 68509
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State
EIS Requirement and/or Proposals
Contact
New Hamp-
shire
No requirement. Requiring impact
statements on major land develop-
ments, whether private or public,
is one of the priorities of a
legislative coalition formed by
the State's major environmental
groups (contact: Miriam Jack-
son, Counsel, SPACE; P. 0. Box
757, Concord, NH 03301).
Raymond P. Gerbi, Jr.
Assistant to the Director of
Comprehensive Planning
Office of the Governor
Concord, NH 03301
New Jersey
tn
No general requirement. Legis-
lation is being prepared in both
houses of the Legislature. A
special EIS procedure applies to
a 35-mile extension of the New
Jersey Turnpike. The Department
of Environmental Protection has
prepared guidelines for an envir-
onmental impact procedure and
distributed copies to local agen-
cies for their guidance. In ad-
dition, the Department is "sug-
gesting" that such assessments
be made on major industrial
construction projects prior to
issuance of air or water pollu-
tion permits. Several local
jurisdictions require an EIS as
part of the zoning and subdivi-
sion process.193
Alfred T. Guide
Special Assistant to the
Commissioner
Department of Environmental
Protection
Trenton, NJ 08625
-------
State
EIS Requirement and/or Proposals
Contact
New Mexico
Environmental Quality Control Act
(N. M. Stat. Ann. Sees. 12-20-1
et seq.). The EIS requirement in
the law has been suspended. See
text.
David W. King
State Planning Officer
State Planning Office
Santa Fe, NM 87501
New York
o\
No general requirement. An ad-
ministrative regulation (Budget
Request Manual, Item 73) requires
environmental review and clear-
ance for State-funded capital con-
struction projects. A bill for a
State environmental policy act,
which included an EIS require-
ment, passed both houses of the
Legislature in 1972 (Assembly
Bill 9245-A), but was vetoed
by Governor Rockefeller, who
said that it would duplicate
existing requirements, confuse
responsibility among State agen-
cies, and increase expenditures
"at a time of protracted fiscal
difficulty."
Terence P. Curran
Director of Environmental Analysis
Department of Environmental
Conservation
Albany, NY 12201
-------
State
EIS Requirement and/or Proposals
Contact
North
Carolina
North Carolina Environmental Poli
cy Act (N. C. Gen. Stat. Sees.
113A et seq.), 1971. See text.
Arthur W. Cooper, Assistant
Secretary for Resource
Management
Department of Natural and
Economic Resources
P. 0. Box 27687
Raleigh, NC 27611
North
Dakota
No general requirement, and none
pending. A special EIS proce-
dure applies to certain waste
water treatment facilities.
Norman L. Peterson, Director
Division of Water Supply and
Pollution Control
Department of Health
State Capitol
Bismarck, ND 58501
Ohio
No requirement. Governor John
J. Gilligan has requested his
executive department to insti-
tute an EIS program. Bills have
been drafted for a State envi-
ronmental policy act, but no ac-
tion is expected in the near
future.
Alan L. Farkas
Deputy Director for Policy
Development
Ohio Environmental Protection
Agency
450 E. Town St.
Columbus, OH 43216
-------
State
EIS Requirement and/or Proposals
Contact
Oklahoma
None
Don N. Strain, Director
State Grant-in-Aid Clearinghouse
Office of Community Affairs
and Planning
4901 Lincoln Blvd.
Oklahoma City, OK 73105
Oregon
ON
00
No requirement. Bills for a
State environmental protection
act, including broad EIS re-
quirements , were introduced in
1971 (Senate Bill 49) and 1973
(House Bill 2921), but not en-
acted. The potential cost in-
volved was reportedly a signi-
ficant factor in their defeat.
Governor Tom McCall supports
the concept.
.Kessler R. Cannon
Assistant to the Governor, Natural
Resources
State Capitol
Salem, OR 97310
Pennsyl-
vania
None
Thomas Dolan, Chairman
Citizens' Advisory Council
Department of Environmental
Resources
c/o EPIC
313 S. 16th St.
Philadelphia, PA 19102
-------
State
EIS Requirement and/or Proposals
Contact
Puerto
Rico
Public Environmental Policy Act
(P. R. Laws Ann. tit. 12, Sees.
1121 et seq.), 1970. See text.
Santos Rohena Betancourt
Acting Executive Director
Environmental Quality Board
1550 Ponce de Leon Ave., 4th Fl
Santurce, PR 00910
Rhode
Island
ON
lO
No requirement. A bill to cre-
ate a general EIS program was
introduced in the 1972 Session
of the Legislature (H. 5179),
but was not reported from com-
mittee.
Daniel W. Varin, Chief
Statewide Planning
Department of Administration
265 Melrose St.
Providence, RI 02907
South
Carolina
No requirement. A bill to re-
quire EIS review for major pri
vate and public projects has
been introduced in the 1973
Session of the Legislature.
Gene Boles, Principal Planner,
Environmental Policy
Office of Planning
Division of Administration
Columbia, SC 29211
South
Dakota
None
D. R. Hood, Program Administrator
Land Use Planning
State Planning Agency
Office of the Governor
Pierre, SD 57501
-------
State
EIS Requirement and/or Proposals
Contact
Tennessee
No requirement. Governor Winfield
Dunn's administration has been
considering proposing an act simi-
lar to NEPA; no decision has been
taken.
Shelley Stiles
Policy Planning Staff
Office of the Governor
1025 Andrew Jackson Bldg.
Nashville, TN 37219
Texas
"Policy for the Environment."
See text.
Ed Grisham, Director
Division of Planning Coordination
Box 12428, Capitol Station
Austin, TX 78711
Utah
No requirement. A bill to re-
quire an EIS on S*tate agency
projects failed to reach the
floor of the Legislature in
1973. The state planning of-
fice is preparing an executive
order which is expected to be
implemented before the end of
the year. ^
Groyer Thompson
Office of the State Planning
Coordinator
118 State Capitol
Salt Lake, UT 84114
Vermont
None. While under Act 250 (Vt,
Stat. Ann. titl 10, ch. 151)
proposals for projects invol-
ving significant changes in
land use require scrutiny as
to .environmental impact, no
formal written document simi-
lar to an EIS is necessary.
See P- 25.
Schuyler Jackson
Assistant Secretary
Agency of Environmental Conserva-
tion
Montpelier, VT 05602
-------
State
EIS Requirement and/or Proposals
Contact
Virginia
Virginia Environmental Policy Act
(Chap. 384, Acts 1973). See text,
Robert H. Kirby, Director
Division of State Planning and
Community Affairs
1010 James Madison Building
Richmond, VA 23219
Washington
Impact statements are required
under the State Environmental
Policy Act (Wash. Rev. Code
Ann. ch. 43.21C), and the High-
way Construction Environmental
Review Law (Wash. Rev. Code
Ann. Sees. 47.04.110-47.04.130),
both enacted in 1971. While it
does not require an EIS, the
Shoreline Management Act of
1971 (Chap. 286, Laws 1971) is
administered to "frequently
require" impact statements to
accompany the review of shore-
line permits sanctioned by lo-
cal officials.
Dennis L. Lundblad
Office of Planning and Program
Development
Department of Ecology
Olympia, WA 98504
West
Virginia
None
Ira S. Latimer, Director
Department of Natural Resources
Charleston, WV 25305
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State
EIS Requirement and/or Proposals
Contact
Wisconsin
Wyoming
to
Wisconsin Environmental Policy
Act (Wis. Stat. Sec. 11.1;
Chap. 274, Laws 1971), and Wis.
Stat. Sees. 23.11 (5), 30.10 (4),
and 31.06 (3); Chap. 273, Laws
1971. See text.
L. P. Voigt, Secretary
Department of Natural Resources
P. 0. Box 450
Madison, WI 53701
None
Vincent J. Horn, Jr.
Administrative Assistant to the
Governor
Capitol Building
Cheyenne, WY 82001
-------
APPENDIX B
SUGGESTED STATE ENVIRONMENTAL POLICY ACT
The Suggested State Environmental Policy Act was drafted
in a workshop at the Second National Symposium on State
Environmental Legislation, held at Arlington, Virginia,
April 10-12, 1973. The symposium was co-sponsored by
the Council of State Governments, CEQ, EPA, and the
Department of the Interior. Co-chairmen of the workshop
were Timothy Atkeson, General Council, CEQ, and Norman E,
Hill, Special Assistant to the Secretary for Resources,
State of California.
The suggested act is included in the Council of State
Government's 1974 Suggested State Legislation (Volume
XXXIII).
EXPLANATORY NOTE194
The suggested act follows the approach of the National
Environmental Policy Act in being fairly simple, leaving
the details to be filled in by administrative guidelines,
The workshop delegates believed that individual states
would need flexibility in adjusting the many minor
details to their individual situations.
ISSUES. In considering a proposed law dealing with
environmental impact statements, a state should con-
sider the following important issues. The Suggested
State Environmental Policy Act represents the workshop's
proposed solution to these issues. Where there were
differences of opinion on significant issues, alternative
solutions to the problems are shown in brackets.
1. To which levels of government should the act apply?
A state should consider whether it wants to apply
the requirement for environmental impact statements
only to state level agencies or whether it wishes
to apply the requirement to local agencies also.
The resolution of this issue is not clear in most
of the state statutes adopted to the date of this
writing. The California act applies explicitly to
both state and local agencies.
73
-------
2. Should the act apply only to. public works construc-
tion or should it also apply to regulatory activities
and approval of private actions? NEPA has always
applied to direct government operations and to
regulatory and licensing activities. The California
act was amended in 1972 to make clear that it applied
to regulatory activities and the granting of dis-
cretionary approvals to private activities.
3. Should the act apply only to major actions or
should it apply to all actions which may have a
significant effect on the environment? NEPA
applies only to major actions. This follows the
belief that large activities will be the main
ones that have significant effects on the environ-
ment and that government will become bogged down
if it has to prepare and review too many reports.
Limiting the requirement to major actions is a
simple way to screen out actions which do not
require the preparation of an impact statement.
On the other hand, there may be many small pro-
jects which may have a large effect on the
environment. California provides no size limita-
tion and requires reports on all actions which
may have a significant effect on the environment.
4. Are there activities which should be specifically
excluded from the operation of the act? A state
may wish to exempt emergency actions because there
may not be sufficient time for a governmental
agency to evaluate environmental factors before
taking action. The suggested act follows the
California precedent in exempting ministerial
actions. With respect to these activities it
was believed that governmental powers are too
narrowly confined to enable the agency to shape
the activity to improve the effect on the environ-
ment.
The Guidelines implementing NEPA and the California
act both exclude environmentally regulatory actions
such as setting standards for air and water pollu-
tion control. This exclusion under NEPA is cur-
rently the subject of litigation. The requirement
for an impact statement was not thought to be r
necessary for these regulatory actions because the
programs were conducted for the express purpose of
protecting the environment and because the programs
have considered the environmental effects of their
activities since their beginnings. Whatever benefits
74
-------
might be gained from the formal preparation of
impact statements could be lost as a result of the
delays in enforcement. On the other hand, opponents
of these exclusions have claimed that these regula-
tory actions may have adverse effects on the
environment that were not considered by the regula-
tory agency or were not known to the public at the
time the actions were taken. The suggested act
provides for this exclusion.
5. Should the environment be defined to include the
totality of man's surroundings or should it be
limited to physical factors? In order to keep
the requirement for impact statements manageable,
the suggested act limits the definition of the
environment to physical factors. Once a physical
effect of an action is identified, social and
economic factors can be considered to determine
whether that effect is significant and whether
an impact statement should be prepared. Environ-
ment was not limited to natural factors because
most of the country's population lives in urban
areas, and man-made surroundings form a large
part of the environment which affect these people.
6. Should environmental effects be weighed against
social and economic considerations? The suggested
act provides that environmental protection should
be given appropriate weight with social and economic
considerations in overall public policy. This
follows the belief that public policy calls for
the balancing of many potentially competing factors
and that environmental protection does not require
shutting down the economy.
7. Should the act specifically require public hearings
on environmental impact statements? Resolution of
this decision was deliberately left to guidelines
to allow specific procedures to be established in
conformity with individual state practices.
8. Should the act provide for the charging of fees to
applicants or should the costs of protecting the
environment be borne by the public as a whole? The
suggested act allows for the charging of fees to the
sponsors of projects which require governmental
approval. Participants in the workshop believed
that a project which will affect the environment
should bear the costs of analyzing its effects on
the environment.
75
-------
Should the act provide a statute of limitations for
legal actions brought under the act? Although the
workshop believed that a statute of limitations is
necessary to provide certainty after a reasonable
period, no statute of limitations was included in
the act. Due to the variation in statutes of
limitation among the states, the resolution of
this issue is deliberately left to each individual
state. This subject was believed to be too compli-
cated and calls for too much variation to allow a
proposed solution in this suggested act.
SUGGESTED STATE ENVIRONMENTAL POLICY ACT
AN ACT to establish a State Environmental policy.
Section 1. Short Title
This Act may be cited as the "[Name of State]
Environmental Policy Act."
Section 2. Purpose
The purposes of this Act are: to declare a State
policy which will encourage productive and enjoyable
harmony between man and his environment; to promote
efforts which will prevent or eliminate damage to the
environment and stimulate the health and welfare of
man; and to enrich the understanding of the ecological
systems and natural resources important to the people
of the State.
Section 3. Findings and Declaration of State Environ-
mental Poli cy
The Legislature finds and declares as follows:
(a) The maintenance of a quality environment for
the people of this State that at all times is healthful
and pleasing to the senses arid intellect of man now and
in the future is a matter of statewide concern.
(b) Every citizen has a responsibility to contribute
to the preservation and enhancement of the quality of
the environment.
(c) There is a need to understand the relationship
between the maintenance of high-quality ecological systems
76
-------
and the general welfare of the people of the State,
including their enjoyment of the natural resources of
the State.
(d) The capacity of the environment is limited, and
it is the intent of the Legislature that the government
of the State take immediate steps to identify any critical
thresholds for the health and safety of the people of the
State and take all coordinated actions necessary to pre-
vent such thresholds from being reached.
(e) It is the intent of the Legislature that to the
fullest extent possible, the policies, statutes,
regulations, and ordinances of the State [and its poli-
tical subdivisions] should be interpreted and administered
in accordance with the policies set forth in this Act.
(f) It is the intent of the Legislature that the
protection and enhancement of the environment shall be
given appropriate weight with social and with economic
considerations in public policy. Social, economic, and
environmental factors shall be considered together in
reaching decisions on proposed public activities.
(g) It is the intent of the Legislature that all
agencies conduct their affairs with an awareness that
they have an obligation to protect the environment
for the use and enjoyment of this and all future
generations.
(h) It is the intent of the Legislature that all
agencies which regulate activities of private indivi-
duals, corporations, and public agencies which are
found to affect the quality of the environment shall
regulate such activities so that major consideration
is given to preventing environmental damage.
Section 4. Definitions
Unless the context otherwise requires, the defini-
tions in this section shall govern the construction of
the following terms as used in this Act:
(a) "Agency" means the Executive and Administrative
Departments, Office, Boards, Commissions, and other units
of the State Government, and any such bodies created by
the State.1
-'•Use the first definition of "agency" if the act is
intended to apply only to actions of State agencies
77
-------
[(a) "Agency" means any state agency, board or com-
mission any any local agency, including any city, county,
and other political subdivision of the State.]la
(b) "Actions" include:
(1) Proposals for legislation.
(2) New and continuing projects or activities
directly undertaken by any public agency;
or supported in whole or part through con-
tracts, grants, subsidies, loans, or other
forms of funding assistance from one or
more public agencies; or involving the
issuance to a person of a lease, permit,
license, certificate or other entitlement
for use by one or more public agencies.
(3) Policy, regulations, and procedure-making.
(c) "Actions" do not include:
(1) Enforcement proceedings or the exercise
of prosecutorial discretion in determining
whether or not to institute such pro-
ceedings;
(2) Actions of a ministerial nature, involving
no exercise of discretion.
(3) Emergency actions responding to an immediate
threat to public health or safety.
[(4) Actions of an environmentally protective
regulatory nature.2]
(d) "Environment" means the physical conditions which
will be affected by a proposed action, including
land, air, water, minerals, flora, fauna, noise,
objects of historic or aesthetic significance,
[existing patterns of population concentration,
distribution, or growth, and existing community
or neighborhood character.]
the alternative definition of "agency" if,the act
is intended to apply to actions of both state and local
agencies.
2This provision is highlighted as a controversial feature
which states may choose to include.
78
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(e) "Environmental impact statement" means a detailed
statement setting forth, the matters specified in section
5(b) of this Act. It includes any comments on a draft
environmental statement which are received pursuant to
section 5(c) of this Act, and the agency's response to
such comments, to the extent that they raise issues not
adequately resolved in the draft environmental statement.
(f) "Draft environmental impact statement" means a
preliminary statement prepared pursuant to section 5(c)
of this Act.
Section 5. Environmental Responsibility of Agencies
(a) Agencies shall use all practicable means to
realize the policies and goals set forth in this Act,
and to the maximum extent possible shall take actions
and choose alternatives which, consistent with other
essential considerations of state policy, minimize or
avoid adverse environmental effects.
(b) All agencies shall prepare, or cause to be
prepared by contract, an environmental impact statement
on any [major] action they propose or approve which may
have a significant effect on the environment. Such a
statement shall include a detailed statement setting
forth the following:
(1) a description of the proposed action and
its environmental setting;
(2) the environmental impact, of the proposed
action including short term and long term
effects;
(3) any adverse environmental effects which
cannot be avoided should the proposal be
implemented;
(4) alternatives to the proposed action;
(5) any irreversible and irretrievable commit-
ments of resources which would be involved
in the proposed action should it be imple-
mented;
(6), mitigation measures proposed to minimize the
environmental impact; and
(7) the growth-inducing aspects of the proposed
action.
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Such a statement shall also include copies or a summary
of the substantive comments received by the agency
pursuant to subsection (c) of this section, and the
agency response to such comments. The purpose of an
environmental impact statement is to provide detailed
information about the effect which a proposed action is
likely to have on the environment, to list ways in
which any adverse effects of such an action might be
minimized and to suggest alternatives to such an action.
(c) As early as possible in the formulation of a
proposal for action that is likely to require the pre-
paration of an environmental impact statement and in
all cases prior to preparation of an environmental impact
statement, the responsible agency shall prepare or cause
to be prepared a draft environmental statement describing
in detail the proposed, action and reasonable alternatives
to the action, and briefly discussing, on the basis of
information then available to the agency, the remaining
items set forth in the preceding subsection. The purpose
of a draft environmental statement is to inform the
public and other public agencies as early as possible
about proposed actions that may significantly affect
the quality of the environment, and to solicit comments
which will assist the agency in determining the environ-
mental consequences of the proposed action. The draft
statement should resemble in form and content the environ-
mental impact statement to be prepared after comments
have been received and considered pursuant to section
5(b) of this Act; however, the length and detail of the
draft environmental statement will necessarily reflect
the preliminary nature of the proposal and the early
stage/at which it is prepared. The draft statement
shall be circulated for coiiiment among other public
agencies which have jurisdiction by law or special
expertise with respect to any environmental impact
involved and shall be made available for comment by
relevant federal agencies and interested members of
the public.
(d) The environmental impact statement, prepared
pursuant to subsection (b) of this section, together
with the comments of!public and Federal agencies and
members of the public, shall-be filed with the [Office
of the Governor] and made available to the public at
least 30 days prior to taking agency action on the
proposal which is the subject of the environmental
impact statement.
(e) An agency may charge a fee to an applicant in
order to recover the costs incurred in preparing or
80.
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causing to be prepared an environmental impact statement
on the action which the applicant requests from the
agency.
(£) When an agency decides to carry out or approve
an action which has been the subject of an environmental
impact statement, it shall make an explicit finding that
the requirements of subsection (a) of this section have
been met and that all feasible action will be taken to
minimize or avoid environmental problems that are
revealed in the environmental impact statement process.
Section 6. Guidelines and Agency Procedures
(a) After conducting public hearings the [Governor]
shall issue Guidelines through regulations implementing
the provisions of this Act within [90 days] after the
effective date of this Act.
(b) The guidelines issued by the [Governor] shall
specifically include:
(1) Interpretation of terms used in this act
including criteria for determining whether
or not a proposed action [may be major or]
may have a significant effect on the
environment with examples. Social and
economic factors may be considered in
determining the significance of an en-
vironmental effect;
(2) On the basis of such criteria, identifi-
cation of those typical agency actions
that are likely to require preparation
of environmental impact statements;
(3) A list of classes of actions which have
been determined not to have a significant
effect on the environment and which thus
do not require environmental impact
statements under this act. In adopting
the Guidelines, the [Governor] shall make
a finding that each class of actions in
this list does not have a significant
effect on the environment;
(4) The typical associated environmental
effects, and methods for assessing such
effects, of actions determined to be
likely to require preparation of such
statements;
81
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C5) Procedures for obtaining comments on
environmental impact statements, including
procedures for providing public notice of
agency decisions with respect to preparation
of a draft environmental statement, or,
in the case of major or controversial
actions determined not to involve a signi-
ficant environmental impact, procedures for
announcing the decision that no environmental
impact statement will be prepared.
(c) Within [90 days] after the [Governor] adopts the
Guidelines, the relevant agencies shall adopt and publish
procedures for implementation of this Act consistent with
the Guidelines adopted by the [Governor].
(d) Each agency shall conduct a public hearing in
connection with adopting the procedures required by this
section.
Section 7. Limitations^
(a) In order to avoid duplication of effort and to
promote consistent administration of Federal and State
environmental policies, the environmental impact state-
ment required by Section 5 of this Act need not be pre-
pared with respect to actions for which a detailed
statement is required to be prepared pursuant to the
requirements of the National Environmental Policy Act
of 1969 and implementing regulations thereto, provided
that such statement complies with the requirements of
this Act and the guidelines adopted pursuant thereto.
(b) The requirements of Section 5 of this Act shall
apply to actions undertaken or approved prior to the
date of enactment of this Act only if:
(1) The responsible agency proposes a modifica-
tion of the action and the modification may
result in a significant effect on the
environment, or
(2) A substantial portion of the public funds
allocated for the project have not been
3ln addition to these limitations, a state may wish to
include a specific statute of limitations to govern
legal actions brought under this act.
82
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spent and it is still feasible either to
modify the project in such a way as to
mitigate potentially adverse environmental
effect or to choose a feasible and less
environmentally damaging alternative to
the project.
83
«OA GOVERNMENT PRINTING OFFICti974 546-317/3Z6 1-3
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SELECTED WATER
RESOURCES ABSTRACTS
INPUT TRANSACTION FORM
/: No,
No.
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4. Tide
Environmental Impact Requirements in the States: NEPA's
Offspring
5:
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Date ,
'
7. Author!.!)
Thaddeus C. Trzyna
"Report No,
10. Project No.
li. Cdiilruct.'Grant No.
68-01-1818
sod
15
Protection Agency Report Number
EPA - 600/5-74-006
16 Abstract
There is a growing trend in the States to adopt requirements for environmental Impact
statements like those in the National Environmental Policy Act of 1969. Fifteen
States and Puerto Rico now require impact statements for a wide range of activities
significantly affecting the quality of the envionment, and several others apply
the process to limited classes of projects. At least trenty other States have such
requirements under consideration.
The State requirements are summarized and compared to each other and to the
national act. Some key issues are discussed: contents of the impact statement,
applicability to private projects and local governments, relation to land use
regulation, enforcement, and citizen participation.
17a. Descriptors
Environmental Assessment
17b. Identifier
State Environmental Protection Acts
lie. COWRR Field &. Group 06E and 06G
IS Availability 1.9- Sdcarity <3aa. •'.-*;
(Rejxwt)
20, $eoujt, Glass.
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Send To:
WATER RESOURCES SCIENTIFIC INFORMATION CENTER
U.S. DEPARTMENT OF THE INTERIOR
WASHINGTON. DjC. MMO
Abstractor Institution
WRSIC 102 (REV. JUNE 19711
488-935
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