The National Environmental Policy Act

After Five Years

Angus Macbeth*

The National Environmental Policy Act' (NEPA) was signed
into law on January 1, 1970, and was announced as ushering in the
decade of the environment.2 As we are now halfway through that
decade, it is an appropriate time to evaluate the operation of the
Act.

NEPA is of major significance both in its new and broad ex-
pression of national policy on environmental matters and in its
innovative administrative procedures designed to implement that
policy. Prior to NEPA's passage the federal government had taken
only a limited part in environmental protection. The responsibilities
which had been assumed were not comprehensive, and the agencies
implementing them frequently lacked significant policies and man-
dates for enforcement.' The Report of the Senate Committee on
Interior and Insular Affairs, the committee responsible for drafting
NEPA, aptly described the problem which existed in the pre-NEPA
period:

As a result of this failure to formulate a comprehensive national
policy, environmental decisionmaking largely continues to pro-
ceed as it has in the past. Policy is established by default and
inaction. Environmental problems are only dealt with when
they reach crisis proportions.4

* B.A. Yale 1964, LL.B. Yale 1969. Formerly Staff Attorney, Natural Resources

Defense Council. Member of the New York Bar.
1. 42 U.S.C. §§ 4321-47 (1970).
2. Remarks of President Richard M. Nixon at the Bill Signing Ceremony, 6

WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS 11-12 (Jan. 5, 1970).
3. For a synopsis of federal environmental law prior to the passage of NEPA see

Moorman, Outline of Federal Law for the Practicing Lawyer, in LAW AND THE

ENVIRONMENT 182-234 (M. Baldwin & J. Page, Jr. ed. 1970). The poor record of

enforcement by the Federal Water Quality Administration is discussed at length in

D. ZWICK & M. BENSTOCK, WATER WASTELAND 199-228 (1971).
4. S. REP. No. 296, 91st Cong., 1st Sess. 5 (1969).

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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

NEPA was designed to remedy this pattern of inadequate federal
action. Its opening sections set out sweeping policy requirements
calling for the harmonious co-existence of man and his environ-
ment.' In order to implement these policies, the Act includes the
"action-forcing" requirement that for each proposed major federal
action affecting the environment the responsible official must pre-
pare an analytic impact statement." Unlike the statutes which

5. The declaration of purpose states:
The purposes of this chapter are: To declare a national policy which will en-
courage productive and enjoyable harmony between man and his environment;
to promote efforts which will prevent or eliminate damage to the environment
and biosphere and stimulate the health and welfare of man; to enrich the
understanding of the ecological systems and natural resources important to the
Nation. . . .

42 U.S.C. § 4321 (1970). The broad policy of the act is further defined in the
statement on its implementation by the federal government:

[I]t is the continuing responsibility of the Federal Government to use all practi-
cable means, consistent with other essential considerations of national policy, to
improve and coordinate Federal plans, functions, programs, and resources to
the end that the Nation may-

(1) fulfill the responsibilities of each generation as trustee of the environ-
ment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and esthetically and
culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without
degradation, risk to health or safety, or other undesirable and unintended
consequences;

(4) preserve important historic, cultural, and natural aspects of our national
heritage, and maintain, wherever possible, an environment which supports
diversity and variety of individual choice;

(5) achieve a balance between population and resource use which will permit
high standards of living and a wide sharing of life's amenities; and

(6) enhance the quality of renewable resources and approach the maximum
attainable recycling of depletable resources.

42 U.S.C. § 4331(b) (1970).
6. The Act requires that all agencies of the government shall
include in every recommendation or report on proposals for legislation and other
major Federal actions significantly affecting the quality of the human environ-
ment, a detailed statement by the responsible official on-

(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 commitments of resources which would

be involved in the proposed action should it be implemented.
42 U.S.C. § 4332(2)(C) (1970).

2 [2: 1



The National Environmental Policy Act

followed in the environmental field, such as the Clean Air Act
Amendments of 1970' and the Federal Water Pollution Control
Act Amendments of 1972 (FWPCA Amendments),' NEPA does
not contain specific standards for pollution control, nor does it
present a detailed program for controlling particular types of pol-
lutants.' NEPA's approach is to apply the policies of the Act to
any discrete federal action through the particular analytic approach
of the impact statement.

The success of this approach is dependent upon the recognition
by federal agencies and officials of their responsibility to promote
the policies of the Act and comply with its mandate through com-
prehensive impact statement preparation. Wise discretion must be
exercised by the agencies in determining the need for preparation
of an impact statement and the scope and context of the "major
Federal action" which forms the framework for the statement. In
addition, the sources of information relied upon in the analysis
must be thorough and competent, and the quality of the analytic
work must be unbiased and reflective of the state of the art.

To assure that the broad, national scope of the Act's policies
would be carried out and to guard against the parochialism of
narrowly focused agencies, three significant features were included
in the Act which make it unusual in the statutory landscape. First,
the Act contains a universal federal mandate. Every major federal
action significantly affecting the human environment is subject to
the Act's policies,'0 and for each major federal action the respon-
sible federal official must prepare an environmental impact state-
ment." Second, recognizing that most federal agencies do not have
environmental expertise or concern, the Act contains a consultative
referral mechanism which draws other federal and state agencies

7. 42 U.S.C. §§ 1857-58a (1970).
8. 33 U.S.C. §§ 1251-1376 (Supp. IV, 1974).
9. As Judge Skelly Wright has noted:
Congress did not establish environmental protection as an exclusive goal; rather,
it desired a reordering of priorities, so that environmental costs and benefits will
assume their proper place with other considerations . . .

Thus the general substantive policy of the Act is a flexible one. It leaves room
for a responsible exercise of discretion and may not require particular substan-
tive results in particular problematic instances.

Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109, 1112 (D.C. Cir. 1971).
10. 42 U.S.C. § 4332(2)(C) (1970).
11. 42 U.S.C. § 4332(2)(C) (1970).

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4 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [2: 1

into the operation of the federal entity complying with the Act.
NEPA specifically seeks to have those with relevant jurisdiction
and expertise involved in the making of decisions which affect the
environment by having those agencies comment on the analytic
impact statement.12 Third, NEPA has consistently been interpreted
as providing for substantial public participation in agency actions
which affect the environment." In part the Act was designed to
function as an environmental full disclosure law." The emphasis
on public participation also flows from the Act's expansion of
agency mandates beyond the immediate area of the agency's ex-
pertise. It is further based on the democratic philosophy of partici-
pation in enforcement which is evident in much of the other
environmental legislation of recent years."

This brief review of NEPA's first five years will examine its
operation largely in terms of agency compliance and enforcement,
considering first these three innovative features of the Act and
then the quality of environmental analysis and review which the
Act has fostered. The policies and structure of NEPA held out
great promise in 1970. The Act provided a comprehensive and
thorough method of integrating environmental issues and concern

12. The statute provides in part that:
Prior to making any detailed statement, the responsible Federal official shall
consult with and obtain the comments of any Federal agency which has juris-
diction by law or special expertise with respect to any environmental impact
involved.

42 U.S.C. § 4332(2)(C) (1970).
13. The Act directly requires that environmental impact statements be widely

available:
[the environmental impact] statement and the comments and views of the ap-
propriate Federal, State, and local agencies, which are authorized to develop
and enforce environmental standards, shall be made available to the President,
the Council on Environmental Quality and to the public as provided by section
552 of Title 5. . . .

42 U.S.C. § 4332(2)(C) (1970).
14. The courts have repeatedly emphasized both public participation and en-

vironmental full disclosure. E.g., Natural Resources Defense Council v. Morton, 458
F.2d 827 (D.C. Cir. 1972); Committee for Nuclear Responsibility v. Seaborg, 463
F.2d 783 (D.C. Cir. 1971); Duck River Reservation Ass'n v. TVA, 6 ERC 1789
(E.D. Tenn. 1974); Natural Resources Defense Council v. SEC, 389 F. Supp. 689
(D.D.C. 1974).

15. E.g., Clean Air Act Amendments of 1970, 42 U.S.C. § 1857h-2 (1970)
(citizen suit provisions); Federal Water Pollution Control Act Amendments of 1972,
33 U.S.C. § 1365 (Supp. IV, 1974); congressional declaration of policy on the
Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. § 1251(e)
(Supp. IV, 1974).



The National Environmental Policy Act

into the operation of the federal government and made the use of
this method mandatory to each federal agency. A broad, national
policy on the environment, universally applicable to federal
agencies, was to be exercised openly with the participation of the
widest range of interests. After five years, the Act has undoubtedly
done much to heighten the environmental consciousness of all
branches of the federal government and the general public. Given
the Act's indefinite goals, it is always difficult to detail the extent
of its effectiveness; but the extent of the controversy over its en-
forcement, as well as the fact that similar measures have been
enacted in more than twenty states,16 is patent testimony to its
impact. At the same time, the continuing opposition to the Act
has won significant victories which have weakened its full force
and effect. For that reason, this Article concludes with sugges-
tions for bolstering the effectiveness of the Act and preserving its
essential mandate for protection of the environment.

I. THE UNIVERSAL MANDATE

It was a central tenet of NEPA that the analysis which it re-
quired and the policies which it set forth should be applicable to
every major federal action which significantly affected the quality
of the human environment.7 Moreover, every federal agency was
itself to be required to apply the policies of the Act through the
prism of the impact statement.'8 By its terms NEPA was applicable
to both agencies endowed with an environmental charter and those
without. Its broad commands were sufficient to encompass those
agencies which could consider themselves to be already following
specific congressional instructions on environmental issues, such as

16. More than 20 states have adopted environmental impact statement require-

ments similar to those in NEPA. These are summarized as of December 1974 in

COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY: THE FIFTH

ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY 401 (1974). Since

that time, New York has passed a "little NEPA" statute, N.Y.E.C.L. § 8-0101 to

-0115 (McKinney Supp. 1975).
17. 42 U.S.C. § 4332(2)(C) (1970).
18. 42 U.S.C. § 4332(2)(C) (1970). As the Report of the Senate Committee

on Interior and Insular Affairs explains, "S. 1075 [NEPA] would provide all agencies

and all Federal officials with a legislative mandate and a responsibility to consider

the consequences of their actions on the environment." S. REP. No. 296, 91st Cong.,

1st Sess. 14 (1969).

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6 COLUMBIA JOURNAL OF ENVIRONMENTAL LAw [2: 1

the Forest Service" or the Federal Power Commission (FPC ),20
as well as those, like the Atomic Energy Commission (AEC),
which had explicitly ruled most environmental concerns. beyond
their jurisdiction.2 '

The universal mandate and the requirement of federal respon-
sibility resulted in a long spate of litigation in which agencies con-
tended that the mandate of the Act did not apply to them or that
they were empowered to delegate their responsibilities under the
Act to others. Agency after agency took one or the other of these
routes. The AEC contended that it was not compelled to apply the
Act for more than fourteen months after its passage and that it
could exclude from consideration in its impact statements issues
such as water quality by deferring to existing standards of other
state and federal agencies.22 The FPC23 and the Federal Highway
Administration (FHWA )24 argued that they could delegate most
if not all of their responsibilities to others, primarily their applicants
for licenses or funds. The Environmental Protection Agency (EPA)
contended that the Act simply did not apply to it because it was in
the business of environmental protection"2 and because its own

19. The Multiple Use-Sustained Yield Act of 1960 sets out a mandate which
could be claimed as a specific environmental charter. The Act requires that the
national forests be managed for outdoor recreation, range, timber, watershed and
wild life and fish purposes and requires the maintenance of sustained yield. 16
U.S.C. § 528 (1970). The resources are to be used so as to best meet the needs of
the American people. 16 U.S.C. § 531 (1970).

20. Under the Federal Power Act, the FPC is required to license those hydroelec-
tric power projects which

will be best adapted to a comprehensive plan for improving or developing a
waterway . . . . for the use or benefit of interstate or foreign commerce, for the
improvement and utilization of water-power development, and for other bene-
ficial public uses, including recreational purposes.

16 U.S.C. § 803(a) (1970). The courts have held that statutory mandate to require
an analysis and judgment closely akin to that required by NEPA. Scenic Hudson
Preservation Conference v. FPC, 354 F.2d 608 (2d Cir. 1965), cert. denied, 384
U.S. 941 (1966); Scenic Hudson Preservation Conference v. FPC, 453 F.2d 463 (2d
Cir. 1971), cert. denied, 407 U.S. 926 (1972).

21. New Hampshire v. AEC, 406 F.2d 170 (1st Cir.), cert. denied, 395 U.S. 962
(1969).

22. Calvert Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971).
23. Greene County Planning Bd. v. FPC, 455 F.2d 412 (2d Cir.), cert.

denied, 409 U.S. 849 (1972).
24. E.g., Citizens Environmental Council v. Volpe, 484 F.2d 870 (10th Cir.

1973), cert. denied, 416 U.S. 936 (1974); Iowa Citizens for Environmental Quality,
Inc. v. Volpe, 487 F.2d 849 (8th Cir. 1973).

25. See text accompanying notes 40-41 infra.



The National Environmental Policy Act

statutory requirements were the functional equivalent of NEPA.2 C

The Army Corps of Engineers, which had its water pollution dis-
charge program under the 1899 Refuse Act2" resuscitated by execu-
tive order in 1970,28 and which was faced with the difficult task of
developing permits for approximately 20,000 discharges into Amer-
ican rivers and streams, simply failed to take any significant steps
to enforce the Act.

In the face of this widespread hostility and indifference to NEPA
on the part of the agencies given the task of enforcing it, the reac-
tion of the courts has generally been to enforce both the universal
nature of the mandate and the federal responsibility for perfor-
mance under the Act. In Calvert Cliffs' Coordinating Committee v.
AEC,29 the Court of Appeals for the District of Columbia Circuit
roundly rejected the AEC's interpretation of the Act, finding the
time lag in its application "shocking,"30 and the exclusion of en-
vironmental areas to which existing standards applied "in funda-
mental conflict with the basic purpose of the Act."" In Kalur v.
Resor3 2 the District Court for the District of Columbia required the
Corps of Engineers to comply with NEPA with respect to dis-
charges affecting water quality, rejecting its contention that the
then-existing water pollution laws, whose enforcement proceedings
were cumbersome, ineffective and largely in the hands of the
states,33 sufficiently addressed the question of water quality con-
trol. In Greene County Planning Board v. FPC3" the Second Cir-
cuit denied the FPC the right to delegate to applicants for licenses

26. See text accompanying notes 42-44 infra.
27. 33 U.S.C. § 407 (1970).
28. Exec. Order No. 11,574, 3 C.F.R. 292 (1974).
29. 449 F.2d 1109 (D.C. Cir. 1971).
30. Id. at 1119.
31. Id. at 1123.
32. 335 F. Supp. 1, 13 (D.D.C. 1971).
33. Water Pollution Control Act of 1948, ch. 758, 62 Stat. 1155; Water Pollu-

tion Control Act Amendments of 1956, ch. 518, 70 Stat. 498; Federal Water Pollu-
tion Control Act Amendments of 1961, Pub. L. No. 87-88, 75 Stat. 204; Water
Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903; Clean Water Restoration Act
of 1966, Pub. L. No. 89-753, 80 Stat. 1246; Water Quality Improvement Act of
1970, Pub. L. No. 91-224, 84 Stat. 91. Moorman has noted that "[the Federal Water
Pollution Control Act] seems deliberately designed to make it difficult for the person
injured by pollution much less a mere citizen group to participate in its enforce-
ment proceedings." Moorman, supra note 3, at 202. Only one suit was brought under
the Act between 1960 and 1970. Id. at 204.

34. 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849 (1972).

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COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

the preparation of the draft impact statement required for review
at its licensing hearings, declaring that an applicant's statement was
likely to be based on self-serving assumptions and that the Com-
mission owed the public active and affirmative protection." With
respect to the claims of the FHWA, early decisions were more
receptive than Greene County to attempts at delegation, provided
the federal presence was maintained by way of review or consulta-
tion.36 By the summer of 1975, however, the Highway Administra-
tion had begun to suffer decisive defeats on the delegation issue as
various courts, such as the Second Circuit in Conservation Society
of Southern Vermont v. Secretary of Transportation"3 and the
Seventh Circuit in Swain v. Brinegar3 8 held that only genuine
federal participation in the preparation of the statement would
meet the standards of the Act.

The EPA is one of the few agencies that has been successful in
the courts in evading NEPA, at least on the basis of the argument
that the Agency's statutory requirements were the functional
equivalent of those in the Act." Its first major contention, that it
should be exempted from NEPA compliance because it is in the
business of environmental protection, was based on an exchange
that took place on the Senate floor prior to NEPA's passage be-

35. Id. at 419-20.
36. There were various formulations of the FHWA's proper role in the prepara-

tion of impact statements. For example, in Citizens Environmental Council v. Volpe,
484 F.2d 870, 873 (10th Cir. 1973), cert. denied, 416 U.S. 936 (1974), delegation
was acceptable where "[t]he S[tate] H[ighway] C[ommission] prepared the impact
statement in consultation with state, federal and private agencies" and "[the
Secretary of Transportation did not simply 'rubber stamp' the State's work." Accord,
Finish Allatoona's Interstate Right, Inc. v. Volpe, 355 F. Supp. 933 (N.D. Ga.),
aff'd, 484 F.2d 638 (5th Cir. 1973). In Iowa Citizens for Environmental Quality,
Inc. v. Volpe, 487 F.2d 849 (8th Cir. 1973), limited delegation was approved
where ". . . FHWA recommended changes in the initial statement and provided ad-
ditional information to be added to the final statement. Review, modification and
adoption by FHWA of the statement as its own occurred in this case." Id. at 854.

37. 508 F.2d 927 (2d Cir. 1974), vacated and remanded for further considera-
tion, 96 S. Ct. 19 (1975).

38. 517 F.2d 766 (7th Cir. 1975). Accord, Appalachian Mountain Club v.
Brinegar, 394 F. Supp. 105 (D.N.H. 1975).

39. The courts have created a few other limited exceptions to NEPA. People of
Saipan v. Dep't of Interior, 502 F.2d 90 (9th Cir. 1974), cert. denied, 420 U.S.
1003 (1975) (Pacific Island Trust Territory Gov't.); Ely v. Velde, 497 F.2d 252 (4th
Cir. 1974) (LEAA grant); Carolina Action v. Simon, 389 F. Supp. 1244 (M.D.N.C.),
aff'd, 522 F.2d 295 (4th Cir. 1975) (federal revenue sharing program); Cohen
v. Price Comm'n, 337 F. Supp. 1236 (S.D.N.Y. 1972) (Price Commission).

8 [2: 1



The National Environmental Policy Act

tween Senator Muskie, speaking for the Public Works Committee
(the Senate committee having jurisdiction over the EPA's pre-
decessor agencies) and Senator Jackson, the chief author and floor
manager of NEPA. Speaking with respect to the effect of section
102 of the Act on existing agencies having important environ-
mental control responsibilities, such as the National Park Service
and the Federal Water Pollution Control Administration, Senator
Muskie succinctly expressed the consensus that was reached in
their colloquy:

[T]he agencies having authority in the environmental improve-
ment field will continue to operate under their legislative
mandates as previously established, and . . . those legislative
mandates are not changed in any way by section 102-5.40

The courts have implicitly recognized that if this informal method
of amending legislation by stating understandings in the Congres-
sional Record were allowed to prevail, the voting powers of the
entire Congress would become illusory and every act would become
littered with exceptions and addenda. Thus they have given weight
to this argument but have not found it to be controlling.4 '

The EPA has been much more successful in avoiding the Act by
contending that performance of its responsibilities under its own
statutes is the functional equivalent of compliance with the re-
quirements of NEPA. Generally, the argument is made that the

40. 115 CONG. REC. 40423 (1969). By the fall of 1972, when the FWPCA
Amendments of 1972 were under consideration, Senator Jackson had abandoned this
view, at least insofar as it would exempt the EPA from NEPA compliance in all
respects. 118 CONG. REc. 33711 (1972). It was endorsed with even greater fervor,
however, by Senator Muskie, Representative Jones and others. 118 CONc. REc. 33700
(1972) (remarks of Senator Muskie); 118 CoNG. REC. 33750-51 (1972) (remarks
of Representative Jones).

41. E.g., Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973),
cert. denied, 417 U.S. 921 (1974). Senator Jackson, having changed his position
with respect to the issue of the EPA's exemption from NEPA, also became caustic
with respect to this practice. In condemning another attempt by Senator Muskie
in 1972 to rewrite the meaning of a statute (in this case § 511(c) of the FWPCA
Amendments) without rewriting its language, he declared:

A back-door attempt at legislation through last minute speeches on the floor
of the Senate is not the proper conduct of the Nation's business. Fortunately, as
Calvert Cliffs' and other court decisions have indicated, the courts will not
abide the diminution of the authority of environmental laws through the vehicle
of floor speeches reinterpreting clear legislative language.

118 CONG. REc. 33711 (1972).

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statutes enforced by the Agency seek the same policy goals as
NEPA (i.e., the protection of the environment), that the method

for enforcement outlined for the Agency by its statutes assures the

same kind of careful attention to environmental concerns as do the

requirements of section 102 of NEPA, and that to require the EPA
to comply with NEPA might frustrate the Agency's efforts to assure

that the policy goals shared by NEPA and the EPA are imple-
mented promptly.12 On this basis the Agency's actions under the

Clean Air Act Amendments of 1970 were effectively excluded from
the Act by the courts,3 and at least one court has similarly ex-

empted the Agency's control of economic poisons under the Federal

Insecticide, Fungicide and Rodenticide Act."
Despite the generally strong response of the courts in enforcing

NEPA's universal mandate, experience has demonstrated that the

preservation of that mandate is not guaranteed by judicial action.
An agency which fails in the courts can turn to Congress and ask

that the Act, or the agency's responsibilities under it, be amended

or curtailed. Moreover, exemptions from compliance with NEPA
which may remain open to question after litigation can be con-
firmed by explicit statutory directions.

These paths have been trod time and again with considerable
success. The Army Corps of Engineers, which did not respond to

Kalur by speedy compliance with NEPA, was relieved of its re-

sponsibilities for discharge permits by the passage of the FWPCA

Amendments," which transferred the water pollution discharge

control program to the EPA. Moreover, under the FWPCA Amend-
ments, the EPA's responsibilities concerning discharge permits were
exempted from NEPA compliance in most respects." The stated

42. E.g., Amoco Oil Co. v. EPA, 501 F.2d 722 (D.C. Cir. 1974); Portland

Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir. 1973), cert. denied, 417
U.S. 921 (1974); Environmental Defense Fund v. EPA, 489 F.2d 1247 (D.C.
Cir. 1973). See 118 CONG. REC. 33700-701 (1972) (remarks of Senator Muskie)

for a thorough statement of the arguments.
43. E.g., Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir. 1973);

Buckeye Power, Inc. v. EPA, 481 F.2d 162 (6th Cir. 1973); Duquesne Light Co. v.
EPA, 481 F.2d 1 (3d Cir. 1973); Anaconda Co. v. Ruckelshaus, 482 F.2d 1301
(10th Cir. 1973); Portland Cement Ass'n v. Ruckelshaus, 486 F.2d 375 (D.C. Cir.
1973), cert. denied, 417 U.S. 921 (1974); Getty Oil Co. v. Ruckelshaus, 467 F.2d
349 (3d Cir. 1972), cert. denied, 409 U.S. 1125 (1973).

44. Environmental Defense Fund v. EPA, 489 F.2d 1247 (D.C. Cir. 1973).
45. 33 U.S.C. § 1371(a), (b) (Supp. IV, 1974).
46. 33 U.S.C. § 1371(c) (Supp. IV, 1974).

[2: 110



The National Environmental Policy Act

rationale for the exemption was that the FWPCA Amendments
provided a comprehensive mandate to the Agency to regulate the
discharge of pollutants and that if the actions of the Adminis-
trator under the FWPCA Amendments were subject to the re-
quirements of NEPA, administration of the water pollution con-
trol program would be greatly impeded.17 On a similar basis Con-
gress approved the exemption of the EPA's actions under the Clean
Air Act which the courts had granted under the functional equiv-
alency test.4 8

In addition, in reaction to Calvert Cliffs', the FWPCA Amend-
ments gave the EPA sole authority over water-polluting discharges
and barred other agencies from reviewing the EPA's discharge
standards and permits in NEPA impact statements." Thus most
water pollution issues have been effectively removed from NEPA
review. This change not only affects the work of one agency, the
EPA, but also hampers the entire NEPA process.

In 1975, following the Second Circuit's decision in Conservation
Society,'o Congress amended NEPA itself to allow limited delega-
tion of impact statement preparation to state agencies receiving
grants from the federal government.5' It should be noted that the
degree of delegation permitted by the amendment is by no means
clear. The statute, even as amended, requires the responsible federal
official to furnish guidance and to participate in the preparation of
the statement, to evaluate the statement independently prior to its
approval and adoption, and to maintain his responsibility for the
scope, objectivity and content of the entire statement. Moreover,
when there is disagreement as to the interstate impact of a project
between the state preparing the statement and another state or
federal land management entity, the federal official must prepare
a written assessment of those impacts.5' The practical effect of this
cumbersome amendment remains to be seen.

Virtually without discussion in the congressional reports accom-

47. S. REP. No. 1236, 92d Cong., 2d Sess. 149 (1972).
48. Energy Supply and Environmental Coordination Act of 1974 § 7(c)(1), 15

U.S.C. § 793(c)(i) (Supp. IV, 1974).
49. 33 U.S.C. § 1371(c) (Supp. IV, 1974).
50. 508 F.2d 927.
51. Act of Aug. 9, 1975, Pub. L. No. 94-83, 89 Stat. 424, amending 42 U.S.C.

§ 4332 (1970) (codified at 42 U.S.C.A. § 4332(D) (Supp. 1975)).
52. 42 U.S.C.A. § 4332(D)(ii)-(iii) (Supp. 1975).
53. 42 U.S.C.A. § 4332(D)(iv) (Supp. 1975).

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panying them, numerous other exceptions to NEPA of various
degrees of importance have been passed by Congress. Under the
1974 Housing and Community Development Act, the Department
of Housing and Urban Development has been authorized to dele-
gate its impact statement preparation to local authorities, thus
removing the primary federal presence in the urban environment
from the control of NEPA." The impact statement on the Trans-
Alaska Pipeline System was congressionally approved and court
review barred.5 Most forms of federal action taken for the relief of
disaster victims, including the replacement of public facilities
damaged or destroyed, are exempt from NEPA." Some of the
conversions of power plants to coal-fire use are exempt, and the
importation of hydroelectric power from Canada in the vicinity of
Fort Covington, New York, may be approved without an impact
statement.5 7

The political forces at work in these amendments are not always
publicly visible, and the opaque and inoffensive language of con-
gressional reports does little to make clear all that is happening.
The amendment to NEPA proposed in 1975 in the wake of the
decisions in Conservation Society" and Swain," and the provisions
included in the FWPCA Amendments responding to Calvert Cliffs'"
and Kalur," are probably the best indications of the efforts to al-
ter the Act since they were contested most openly and bitterly.
In both instances the amendments came as direct responses to
judicial decisions interpreting the Act. In both the most forceful
pressures for amendment came from the "clients" of the agency
which had sustained the judicial reversal. The agency which had
flaunted the congressional mandate did less to argue directly for
change, but by its action could have a powerful effect on the de-

54. 42 U.S.C. § 5304(h) (Supp. IV, 1974).
55. Trans-Alaska Pipeline Authorization Act of 1973 § 203(d), 43 U.S.C. § 1652

(d) (Supp. IV, 1974).
56. Disaster Relief Act of 1974 § 405, 42 U.S.C. §§ 5172, 5175 (Supp. IV,

1974). See Homeowners Emergency Life Protection Comm. v. Lynn, 388 F. Sipp.
971 (C.D. Cal. 1974).

57. Energy Supply and Environmental Coordination Act of 1974 § 7(d), 15
U.S.C. § 793(d) (Supp. IV, 1974).

58. 508 F.2d 927.
59. 517 F.2d 766.
60. 449 F.2d 1109.
61. 335 F. Supp. 1.

12 [2: 1



The National Environmental Policy Act

bate in Congress. The FHWA acted most blatantly in this manner
by cutting off almost all funds for highway projects in New York,
Connecticut and Vermont in a time of recession." The result was
inevitably to build pressure for legislative change.

In each case the pressure created by the judicial decision on the
agency's program was used to shift the terms of the argument in
Congress away from the issue of proper principles of environmental
regulation to the particular problem of the production of power or
the provision of highway construction jobs. Given Congress' more
parochial view towards a particular crisis, persuasive arguments
could be found for deviation from the systematic method of the
Act. In the case of Calvert Cliffs' the appeal was to the special ex-
pertise of the EPA in water matters," and with Conservation
Society the appeal was to local knowledge and control.6 4

A constant counterpoint in the debate is the administrative
burden imposed by NEPA. This argument is closely allied to the
charge that compliance with the Act will delay or disrupt the pro-
gram to which it is applied. Characterizing compliance with the
law as delay is misleading, but it is an attractive argument when
the fruits of ignoring the law are concrete and tangible. Against this
attack the defenders of the Act have the difficult task of arguing
for a method and a general principle and against the supposedly
concrete benefits offered by the opponents of the Act. Arguing in
comparative ignorance before a NEPA analysis has been com-
pleted, the defenders are unable to say precisely what harms the
Act's operation will prevent, especially since it does not set par-
ticular standards. Moreover, the argument that the agency has
brought the delay upon itself by failing to comply with the Act

62. See S. REP. No. 152, 94th Cong., 1st Sess. 2 (1975).
63. The remarks of Senator Muskie, chief Senate floor manager of the FWPCA

Amendments, in an exchange on the floor with Senator Buckley make this clear.
Senator Buckley questioned the exclusion of EPA's water quality program from
review by other agencies, particularly the AEC, since under the authority of NEPA
the AEC staff had just proposed stringent remedial action for the protection of
aquatic biota at the Consolidated Edison Co. of New York's Indian Point 2 plant
on the Hudson River. Senator Muskie replied:

The whole concept of EPA is that environmental considerations are to be
determined in one place by an agency whose sole mission is protection of the
environment. It did not occur to us that AEC might be more conscientious in
this than EPA, so we have given EPA the total authority. . . .

118 CONG. REc. 33708 (1972).
64. See S. REP. No. 111, 94th Cong., 1st Sess. 2 (1975).

1975] 13



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

lacks the appeal it would have were the federal officials, rather
than construction workers or consumers of power, to be those suf-
fering the adverse effects occasioned by compliance with the Act
in an untimely fashion.

Faced with the hostility of the EPA and the tepid enthusiasm of
the Council on Environmental Quality (CEQ)," the Act does not
have a strong advocate in the executive side of government. Nor is
there an organized "clientele" economically dependent on the opera-
tion of the Act. Moreover, in Congress the amendments, not sur-
prisingly, usually emanate from committees whose first considera-
tions are constituencies with interests more specialized than that
of the general environment." Thus the amendments to the Act
have largely been the achievement of organized bureaucracies and
their clienteles, pursuing specialized interests to the detriment of
the general public's interest in the environment.

Whatever may be thought of the merits of individual exceptions,
the principle of a universal mandate is now a shattered hulk. Only
one amendment has directly altered the Act which itself maintains
a deceptively broad scope as it appears in the United States Code.
Nevertheless, the dismantling of the universal mandate has been
broad and effective. The federal programs on air and water pollu-
tion are effectively excluded. The economic poison and noise con-
trol programs are probably exempt. The urban programs and the
massive highway program are delegated to one degree or another.
The review of most water quality issues is barred in all impact
statements. And the special interests continue to pick over the
carcass of the Act.

II. THE REFERRAL MECHANISM

NEPA requires that before a detailed environmental impact
statement is prepared, the proposing agency shall obtain the com-
ments of federal agencies with relevant jurisdiction or special exper-

65. See notes 131-35 and accompanying text infra.
66. The FWPCA Amendments were prepared by the Public Works Committee.

See H. REP. No. 911, 92d Cong., 2d Sess. (1972); Letter from Edmund Muskie to
Jennings Randolph, Dec. 20, 1972 in ENVIRONMENTAL POLICY DIVIsION, CONGRES-
SIONAL RESEARCH SERVICE, 93D CONG., 1ST SEss., A LEGISLATIVE HISTORY OF THE

WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972 iii (Comm. Print 1972).
The 1975 Amendment of NEPA also began in the Public Works Committee. See
S. REP. No. 152, 94th Cong., 1st Sess. 5 (1975).

14 [2: 1



The National Environmental Policy Act

tise relating to the environmental impact. Further, the comments
of appropriate federal, state and local agencies are to accompany
the proposal through the agency review process." In addition,
the Administrator of the EPA has the responsibility under the Clean
Air Act Amendments of 1970 to comment on matters affecting the
environment"' and therefore must comment on all NEPA impact
statements.

NEPA expanded the mandate of all federal agencies to include
environmental considerations, and few, if any, had the expertise or
knowledge to comply fully with the terms of the Act. Thus, the
referral mechanism was crucial if the full knowledge and abilities
of the federal government were to be brought to bear on environ-
mental issues. There is little in the original debates on the Act that
touches on this requirement, but in 1972 Senator Jackson force-
fully pointed out the importance of the mechanism, noting that,
"[t]his consultation procedure guarantees that single-purpose, mis-
sion-oriented objectives do not have unintended and unanticipated
consequences far beyond the intent of the agency proposing the
action under consideration."o

The effective operation of the referral mechanism has depended
on the interest and commitment of the commenting agencies. The
failure of agencies aggressively and actively to exploit this op-
portunity is difficult to document, but the impression that few
agencies have labored to make this part of the Act work is sub-
stantiated by a number of facts.

Under the Fish and Wildlife Coordination Act the Department
of the Interior, particularly the Fish and Wildlife Service, and the

67. 42 U.S.C. § 4332(2)(C) (1970). There has been comparatively little judicial
interpretation of these requirements. Agencies which have failed to circulate impact
statements altogether have been found to be in violation of the Act. See, e.g.,
Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 749 (E.D. Ark.
1971), vacated, 342 F. Supp. 1211 (E.D. Ark. 1972), aff'd, 470 F.2d 289 (8th Cir.
1972), cert. denied, 412 U.S. 391 (1973). Except for such cases, there is very little
discussion of what, if anything, an agency must do to obtain the comments of other
agencies beyond forwarding the impact statement. See Sierra Club v. Callaway, 499
F.2d 982 (5th Cir. 1974); Simmons v. Grant, 370 F. Supp. 5 (S.D. Tex. 1974).

68. The Clean Air Act Amendments of 1970 require that the EPA Administrator
review and comment in writing on matters within his responsibility contained in any
environmental impact statement. 42 U.S.C. § 1857h-7(a) (1970). Where the Ad-
ministrator finds the action unsatisfactory from the standpoint of environmental
quality, he is to refer the matter to the CEQ. 42 U.S.C. § 1857h-7(b) (1970).

69. 118 CONG. REc. 33709 (1972).

1975] 15



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

Department of Commerce, particularly the National Marine Fish-
eries Service, have a responsibility to consult with agencies which
license or themselves undertake alterations to the nation's water-
ways.7 o This is, of course, the equivalent of their NEPA respon-
sibility on such projects. Moreover, the fish and wildlife expertise of
those agencies is obviously of the sort which NEPA sought as a
regular matter to incorporate into the making of all federal decisions
which affect the environment. The General Accounting Office
(GAO) in a study of the compliance by the Departments of the
Interior and Commerce with the requirements of the Coordination
Act indicates that the funding and manpower of these agencies
must be doubled if the Coordination Act responsibilities are to be
effectively carried out.7 Thus, with respect to obtaining expert
federal assistance concerning fish and animal life, half the work
necessary to meet NEPA's requirements is being performed. This
is particularly significant since for other major areas of pollution,
such as air and water, Congress has passed major standard-setting
legislation since 1970 which may independently protect those as-
pects of the environment.2 As nothing of a comparable sort exists
on the federal level for animal life, NEPA is of particular importance
in that field.

An Interior Department study has also shown that the Depart-
ment's budget requests for its responsibilities in the preparation
and review of impact statements have been chronically under-
estimated." Unanticipated costs not reflected in budget requests
varied from 30-60 percent of the total NEPA-related expenditures
during fiscal years 1970-1974.74 The importance of the review work
is brought home by the fact that apart from the Interior Depart-

70. 16 U.S.C. §§ 661-68 (1970).
71. GENERAL ACCOUNTING OFFICE, REP. B-118370, IMPROVED FEDERAL EFFORTS

NEEDED To EQUALLY CONSIDER WILDLIFE CONSERVATION WITH OTHER FEATURES OF

WATER RESOURCE DEVELOPMENTS 54-59 (1974). See Hearings on GAO Rep. B-
118370, H.R. 42, H.R. 2285, H.R. 2288, H.R. 2291, H.R. 2292, H.R. 10651 and H.R.
14527 Before the Subcomm. on Fish and Wildlife Conservation and the Environ-
ment of the House Comm. on Merchant Marine and Fisheries, 93d Cong., 2d Sess.,
ser. 93-33, at 591, 600-05 (1974).

72. Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857-58a (1970);
Federal Water Pollution Control Act Amendments of 1972, 33 U.S.C. §§ 1251-1376
(Supp. IV, 1974).

73. U.S. Dep't of the Interior, A Review of Environmental Impact Statement
Processes Within the Department of the Interior (1974).

74. Id. at 1-23.

186 [2: 1



The National Environmental Policy Act

ment's own negative declarations, a greater part of its workload
is devoted to review of other agencies' draft environmental state-
ments than to any other category of NEPA activity."

The CEQ has noted not only the lack of funds and manpower in
some agencies which makes commenting on a large volume of im-
pact statements difficult, but also the constraint of short comment
periods which makes analysis of a complex impact statement almost
impossible.76 The Council advocated curing the situation through
increases of manpower and earlier notice of the time of availability
of draft impact statements." It has acted to put the early warning
system into effect;7" but much of what it recognized as the basic
problem remains: even with adequate resources, it is often im-
possible to prepare comments in forty-five days that will do justice
to a draft statement that may have taken years to prepare.7

There is another irony in the operation of the referral mechanism.
A statement which is well-developed and presents usable data is
much easier for an analyst to review than a statement which is so
opaque and uninformative that the commentator must essentially
start from scratch himself, collecting or producing the basic data.
Thus, the quality of the comments on an impact statement is fre-
quently proportional to the quality of the statement being com-
mented upon. This is a new and sad variation of the old precept of
"garbage in, garbage out." This principle can be illustrated by a
brief examination of impact statements on power plants on the
Hudson River. Two fossil-fuel plants on the Hudson River, Bowline
Point and Roseton, are subject to impact statements prepared by
the Army Corps of Engineers.o Three nuclear plants at Indian
Point in the same reach of the River are subject to impact state-
ments prepared by the AEC, now the Nuclear Regulatory Com-

75. Id. at 1-30.
76. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY: THE

TIRD ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY 237 (1972).
77. Id. at 237-38.
78. 40 C.F.R. § 1500.7 (1975).
79. 40 C.F.R. § 1500.9 (1975).
80. The statements were formally required to be prepared pursuant to consent

judgments in the following cases, although the Corps had prepared draft statements
for the Bowline plant prior to such judgments: Hudson River Fishermen's Ass'n v.
Orange & Rockland Utilities, Civil No. 72-5460 (S.D.N.Y., filed Dec. 29, 1972);
Hudson River Fishermen's Ass'n v. Central Hudson Gas & Electric Co., Civil No.
72-5459 (S.D.N.Y., filed Dec. 29, 1972).

1975] 17



18 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [2: 1

mission (NRC). All of the plants withdraw large quantities of water
from the River for cooling purposes-the smallest taking approxi-
mately 650,000 gallons per minute-and all the plants pose a major
threat to the aquatic biota of the Hudson River by withdrawing the
eggs and larvae of the fish with the water and destroying them in
passage through the plants' cooling systems." The impact statement
prepared by the AEC for Indian Point in 1972 took well over 100
pages to analyze both the hydrology of the River and its aquatic
life. 2 The statements by the Corps of Engineers developed between
1971 and 1973 with respect to the Bowline plant devoted no more
than five or ten pages to these issues.13 On the whole, the com-
menting procedure was much more effective with the AEC where
it was needed less.84 In that statement the analyst had something to

81. Percent reduction values of [striped bass] juveniles per spawning season
ranges from 21-32% with once-through cooling at Indian Point Units Nos. 1, 2
and 3 alone, but these values increase in the range from 34-50% if the effects of
once-through cooling at Bowline, Lovett, Danskammer and Roseton plants are
included in the calculation. The percent reduction values are increased to 47-64%
by also including the Cornwall Pumped Storage Facility in the calculation.

U.S. Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation, En-
vironmental Statement (Final), Indian Point Nuclear Generating Plant No. 3,
Hudson River, New York (February 1975) [hereinafter cited as "Indian Point 3
Statement"], at V-146 and summary at vi.

82. U.S. Atomic Energy Commission, Directorate of Licensing, Environmental
Statement (Final), Indian Point Generating Plant Unit No. 2, Hudson River, New
York (September 1972) [hereinafter cited as "Indian Point 2 Statement"], at Vol. I,
V-7 to -74, XII-23 to -38, A-IL-1 to -27, A-V-36 to -97.

83. U.S. Army Corps of Engineers, New York, New York District, Environmental
Statement (Draft), Orange and Rockland Utilities, Inc., Bowline Point Generating
Station, Haverstraw, New York (September 1972) [hereinafter cited as "Bowline
Statement, Draft"], at 20-24 passin; U.S. Army Corps of Engineers, New York, New
York District, Environmental Statement (Revised Draft), Orange and Rockland
Utilities, Inc., Bowline Point Generating Station, Haverstraw, New York (May
1973) [hereinafter cited as "Bowline Statement, Revised Draft"], at 20-24 passim.

84. In response to the draft statement circulated by the Corps of Engineers in
1971 on the Bowline plant, Bowline Statement, Draft, supra note 83, the Interior
Department pointed out general deficiencies but made no detailed analysis of fish
life or specific recommendations beyond suggesting that the permit requested be
held in abeyance until certain issues were adequately covered in the environmental
statement. Letter of Richard E. Griffith to Mark Abelson, April 28, 1971; Letter of
Mark Abelson to Col. James W. Barnett, July 1, 1971, appended to Bowline
Statement, Revised Draft, supra note 83. In reviewing the Indian Point 2 Statement,
the Interior Department stated that the probable loss of aquatic biota was "unac-
ceptable to this Department on a long-term basis" and recommended seven specific
and strict licensing conditions to the AEC. Comments of the U.S. Dep't of the
Interior, Indian Point 2 Statement, supra note 82, at Vol. 2, 45-52.



The National Environmental Policy Act

which he could address himself, while in response to the Corps of
Engineers' work, there was little to be said unless the commentator
was willing to do the entire research job for himself.

There is no question that a thorough study of the commenting
work undertaken by the agencies would be very valuable. In its
absence it is still probably a fair judgment that the referral mech-
anism is an opportunity that has largely been foregone and will
not be properly exploited without aggressive agency personnel pro-
vided with sufficient funds and manpower.

III. PUBLIC PARTICIPATION

NEPA has been praised in the Congress as a full disclosure law,,"
and courts have solidly stood behind the principles of the Act which
open the doors of the executive agencies to the view and participa-
tion of the public, the Congress, and for that matter, other executive
agencies." However, there is one brutal necessity for effective
participation by the general public in the NEPA procedure: money.
It is a coarse-grained but essentially accurate generalization that
environmental matters are usually complex and highly technical
and that the development of such issues on a factual and legal basis
demands substantial funds for experts and attorneys. It is also true
that funds to meet these needs are more readily available to the
proponents of a project or development, who may treat such costs
as a necessary part of their investment in the project, than to the
general and largely unorganized public that wishes to see a project
abandoned or modified.

Again, there is a paucity of data on the costs of effectuating
NEPA procedure, but the general point is substantiated by a few
available statistics. The Deputy Director for Reactor Projects in the
NRC has estimated that the cost of an impact statement covering
the licensing of a nuclear reactor averages $1,700,000, with costs
to the license applicant ranging from $1-3,000,000, and those of the
Commission from $225,000 to $400,000.7 One analysis calculated
the cost of a full-scale intervention in a nuclear plant licensing at
$75,000 to $100,000 and described those sums accurately as "an ex-

85. 118 CONG. REC. 37059-60 (1972).
86. See note 14 supra.
87. 6 ENvmR. Rpn.-CURRENT DEV. 206 (1975).

1975] 19



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

tremely small fraction of the total costs of constructing a nuclear
power plant."" Another study conducted in connection with the
Kennedy Amendment to the Energy Reorganization Act, which
would have provided funds to intervenors in proceedings on the
licensing of nuclear power plants, estimated that utilities budget
$500,000 to $1,000,000 for such proceedings while intervenors spend
on the average $50,000 to $65,000." A report on the issue of
whether financial assistance should be given by the NRC to in-
tervenors in its licensing proceedings does not take issue with these
figures.o In a hard-fought battle utility expenditures can be much
higher. Consolidated Edison Co. of New York is now spending
more than $15,000,000 over five years to justify the cooling systems
on its Hudson River plants which were ordered altered by the
AEC under the authority of NEPA."

Since most of the basic research has to be undertaken by the
applicant, some disparity in financial resources is reasonable; but
differences of ten or twenty or more to one put public participation
in a different perspective and raise the question of whether the
public can ever be very effective fighting odds of that magnitude.
In addition, simply raising $50,000 is a Herculean effort for most
citizens' groups; and although projects of lesser magnitude than
nuclear plants may demand less in financial resources, they also
have the disadvantage of not appealing to as wide a public.

On the funding issue, NEPA finds itself the poor sister among
environmental statutes. It stands virtually alone among the major
ecological acts of the 1970's as having no fee-shifting provision in-
cluded by Congress." For a time, it appeared that this omission
might be remedied by the courts by application of the private at-
torney general doctrine whereby collection of attorneys' fees was
permitted in cases in which private litigants vindicated provisions

88. S. EBBIN & R. KASPER, CITIZENS GROUPS AND THE NUCLEAR POwER CON-
TROVERSY: USE OF SCIENTIFIC AND TECHNOLOGICAL INFORMATION 285 (1974).

89. 120 CONG. REC. 18725 (daily ed. Oct. 10, 1974).
90. Boasberg, Hewes, Klores & Kass, Report to the Nuclear Regulatory Com-

mission: Policy Issues Raised by Intervenor Requests for Financial Assistance in
NRC Proceedings (1975).

91. Consolidated Edison Company of New York, Inc., Summary of Hudson
River Research Programs, Approximate Cost of Ecological Studies (November 19,
1974).

92. See 42 U.S.C. § 1857b-2(d) (1970); 33 U.S.C. § 1365(d) (Supp. IV,
1974).

20 [2: 1



The National Environmental Policy Act

of the Constitution or enforced strong congressional policies in-
volving substantial public rights and benefiting a broad popula-
tion." This possibility has effectively been closed, however, by the
decision of the Supreme Court in Alyeska Pipeline Service Co. v.
Wilderness Society, in which the Court ruled that it was for Con-
gress and not for the courts to decide when the American rule that
each party to a litigation bears its own attorney's fees would be
altered to allow fee-shifting in litigation." Advocates of the Act
have not been so successful as its opponents in obtaining congres-
sional relief from a court decision. No amendment to the Act
dealing with fee-shifting has yet been passed.

It is also essential to bear in mind that in many NEPA proceed-
ings the bulk of expenses may occur during administrative hearings
before an agency. This is generally true for agencies such as the
NRC or the FPC which sit as fact-finders and whose decisions are
reviewable directly by the Courts of Appeals.15 In such cases the
expenses of trial preparation and presentation, as well as experts'
fees, come before litigation begins in the courts. The agency may
have discretion to award fees for experts and attorneys to public
groups in their proceedings, and the NRC at least is actively in-
vestigating such an arrangement.9 6 However, no agency with an

93. The Second and Fourth Circuits declined to honor the private attorney
general doctrine. See, e.g., Bridgeport Guardians, Inc. v. Members of Bridgeport
Civil Service Comm'n, 497 F.2d 1113 (2d Cir. 1974), cert. denied, 421 U.S. 991
(1975); Bradley v. School Bd. of City of Richmond, 472 F.2d 318 (4th Cir. 1972),
rev'd on other grounds, 416 U.S. 696 (1974). The District of Columbia, First,
Third, Fifth, Sixth, Seventh, Eighth and Ninth Circuits and some 23 district courts
accepted and applied the private attorney general doctrine. See, e.g., Milburn v.
Huecker, 500 F.2d 1279 (6th Cir. 1974); Fowler v. Schwarzwalder, 498 F.2d 143
(8th Cir. 1974); Brandenburger v. Thompson, 494 F.2d 885 (9th Cir. 1974);
Skehan v. Bd. of Trustees of Bloomsburg State College, 501 F.2d 31 (3d Cir. 1974),
vacated and remanded, 421 U.S. 983 (1975); Natural Resources Defense Council
v. EPA, 484 F.2d 1331 (1st Cir. 1973); Donahue v. Stauntan, 471 F.2d 475 (7th
Cir. 1972), cert. denied, 410 U.S. 955 (1973); Knight v. Auciello, 453 F.2d 852
(1st Cir. 1972); Lee v. Southern Homes Sites Corp., 444 F.2d 143 (5th Cir. 1971).
Among the best known applications of the doctrine to environmental causes by a
district court is La Raza Unida v. Volpe, 337 F. Supp. 221 (N.D. Cal. 1972), aff'd
488 F.2d 559 (9th Cir. 1973), cert. denied, 417 U.S. 968 (1974). See also
Delaware Citizens for Clean Air, Inc. v. Stauffer Chemical Co., 62 F.R.D. 353 (D.
Del. 1974), aff'd 510 F.2d 969 (3d Cir. 1975).

94. 421 U.S. 240 (1975).
95. E.g., 42 U.S.C. § 2239(b) (1970); 16 U.S.C. § 8251(b) (1970).
96. In re Consumers Power Co. (Big Rock Point Nuclear Plant) CLI-74-42,

RAI-74-11-820 (Nov. 20, 1974). The arguments for and against funding intervenors

1975] 21



22 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW [2: 1

appreciable number of environmental cases presently shifts fees on
a regular basis.

A glance at the reporters makes it obvious that litigation under
the Act continues apace. Nevertheless, the volume and effective-
ness of litigation depends to a measureable extent on funds being
available for pursuing it, and NEPA contains no provision making
such funds available in court or agency proceedings. The true power
of the Act will lie dormant until the resources are available -to
enforce it effectively.

IV. THE QUALITY AND REVIEW OF IMPACT STATEMENTS

The qualitative operation of the Act, its success in providing com-
petent analysis of and effective protection for the environment, has
had a checkered history. Definitive judgments in this area are im-
possible without reviewing the data and conclusions of hundreds
of impact statements. However, five years of experience with the
Act does allow tentative judgments to be made on a number of
issues which are repeatedly posed in the operation of NEPA: the

in NRC proceedings have been summarized in a lengthy study of the issue pre-
pared for the Commission:

Those favoring financing claim: (1) intervenors have made and can make
significant contributions to the NRC regulatory process; (2) they serve as a
gadfly to the staff and [Atomic Safety and Licensing] boards; (3) their funding
will increase the public's education and confidence in the efficacy and safety of
nuclear technology; (4) they add an extra review layer to important health,
safety, and environmental determinations of the potentially dangerous use of
nuclear power; and (5) intervenors represent an outside view which should be
heeded in a field dominated by government and powerful commercial interests.

On the other hand, those opposing financing claim: (1) the costs of intervenor
delay and blackmail outweigh any alleged benefits; (2) the NRC procedures
are already laden with ample safeguards, and the dangers associated with
nuclear reactors have been grossly exaggerated; (3) Congress has determined
that the agency best represents the public interest, and the taxpayers should
not have to support additional self-appointed guardians and unaccountable
private groups; (4) financing will further polarize the hearing process, turning
it into a courtroom drama, and making it even more difficult to adduce
scientific and technological truth; and (5) there are better alternatives avail-
able to the Commission [e.g., providing public counsel, providing funds to
back-up centers for intervenors, reducing the procedural costs of intervention
such as transcript and reproduction costs], and implementation of direct financing
creates insurmountable administrative problems.

Boasberg, Hewes, Klores & Kass, supra note 90, at 129-30.



1975] The National Environmental Policy Act 23

scope of the statement undertaken by the agency; the sources of
information on which the analysis rests; the quality of the impact
statement analysis itself and the review of the statement. These
factors obviously merge in a determination of whether or not the
broad view and the quality of analysis which effective operation
of the Act demands can or is being reasonably met.

A. Scope of Impact Statements

The extent of an impact statement and its timing are, of course,
of great significance. Consideration of a project or program that has
been artificially segmented through preparation of statements for
its component parts does not allow a rational choice of alternatives,
and a statement made after significant sums have been spent for
research and development will be propelled by the momentum of
those investments toward the alternative in which the investment
has already been made. At least rhetorically, the courts have gen-
erally been firm in stating that projects may not be fragmented in
order to avoid proper NEPA review and that impact statements
must be written at an early point, when options are still truly
open." Many highway cases" and some decisions involving the
Army Corps of Engineers" have addressed the issue of segmenta-
tion; and cases such as Scientists Institute for Public Information v.
AEC,"oo requiring an impact statement on the Commission's breeder

97. See notes 101-02 and accompanying text infra.
98. E.g., Conservation Society of Southern Vermont v. Secretary of Transporta-

tion, 508 F.2d 927 (2d Cir. 1974), vacated and remanded for further consideration,
96 S. Ct. 19 (1975); Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir. 1973),
modifying 345 F. Supp. 1167 (S.D. Iowa 1972); Named Individual Members of the
San Antonio Conservation Society v. Texas Highway Dep't, 446 F.2d 1013 (5th Cir.),
cert. denied, 403 U.S. 932 (1971).

99. E.g., Atchison, Topeka & Santa Fe Ry. Co. v. Callaway, 382 F. Supp. 610
(D.D.C. 1974); Sierra Club v. Callaway, 499 F.2d 982 (5th Cir. 1974).

100. 481 F.2d 1079 (D.C. Cir. 1973). See also Greene County Planning Bd. v.
FPC, 455 F.2d 412 (2d Cir.), cert. denied, 409 U.S. 849 (1972); Calvert
Cliffs' Coordinating Comm. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971) (insisting
that the agency's impact statement be prepared sufficiently early to accompany its
proposal through every stage of the review process, including public hearings).
Some doubt has been cast on these decisions, however, by the Supreme Court's
recent decision in Aberdeen & Rockfish R.R. Co. v. Students Challenging Regulatory
Agency Procedures, 422 U.S. 289, 320-21 (1975), holding that NEPA did not
require preparation of a final impact statement until the ICC actually announced
its decision (i.e., its proposal) not to suspend selective increases in a general



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

reactor program, have emphasized the importance of preparation
of the statement early in the program.

The courts have devised various formulae for testing claims of
improper segmentation. Some have held that if a proposed federal
action will have a coercive effect on the performance of additional
actions which are related either by geography, or by virtue of being
contemplated as part of the same plan or program, an impact state-
ment must be prepared which includes an analysis of the coerced
actions.'o Other courts have held that if an individual project, such
as a dam or highway section, has "independent utility," considera-
tion may be limited to the effects of that project despite the fact
that it is a component of a larger plan.o2 Realistically, one must
admit that the determination of the point at which one entity ends
and another begins remains a metaphysical problem. There is no
logical termination point to the analysis of many long-range pro-
grams. The most egregious decisions violating the spirit of the Act

revenue proceeding after public hearings were held. It is difficult to know what the
sweep of this reading of NEPA will be. If the time at which an agency makes a
recommendation or a report on a proposal for federal action is interpreted to be the
time of final decision by the agency, then review of impact statements could be
stripped to the point of meaninglessness. If it is interpreted as the time when the
staff of an agency takes a position on a proposal, then NEPA's operation should not
be as seriously affected. Since the purpose of the NEPA review is to integrate envi-
ronmental considerations into the fiber of agency actions and to provide informa-
tion to the public, the Congress and the executive branch at a time when options
remain open, the second interpretation appears to be more faithful to the Act. It
also makes NEPA's requirement that the statement accompany the proposal "through
the existing agency review process" have a common sense value, since it clearly in-
tegrates environmental issues into the review processes. It may be that the pe-
culiarities of ICC proceedings in which the rates filed by the railroads become
effective unless suspended by the Commission led the Court to take the position
which it did. In any case there is now some doubt as to the timing and review of
NEPA statements which is not likely to be fully resolved until the Supreme Court
addresses the matter again.

101. Conservation Society of Southern Vermont v. Secretary of Transportation,
508 F.2d 927 (2d Cir. 1974), vacated and remanded for further consideration, 96
S. Ct. 19 (1975); Scientists Institute for Public Information v. AEC, 481 F.2d 1079
(D.C. Cir. 1973); Appalachian Mountain Club v. Brinegar, 394 F. Supp. 105
(D.N.H. 1974); Sierra Club v. Volpe, 351 F. Supp. 1002 (N.D. Cal. 1972). See
also Council on Environmental Quality, Preparation of Environmental Impact State-
ment: Guidelines, 40 C.F.R. § 1500.6 (1975).

102. E.g., Sierra Club v. Callaway, 499 F.2d 982 (5th Cir. 1974); Sierra Club
v. Stamm, 507 F.2d 788 (10th Cir. 1974); Trout Unlimited v. Morton, 509 F.2d
1276 (9th Cir. 1974); Indian Lookout Alliance v. Volpe, 484 F.2d 11 (8th Cir.
1973), modifying 345 F. Supp. 1167 (S.D. Iowa 1972).

24 [2: 1



The National Environmental Policy Act

may be stopped by litigation,1 03 but over time the most important
question must be whether the agencies can or will make the
policies of the Act their own so that their discretion is exercised to
reflect reasonably the interests of NEPA.

Within the operation of the agencies there are two major obstacles
to this goal: first, the jurisdictional organization of the agencies;
and, second, the problem of providing a broad view for those
agencies which are constantly faced with making small, discrete
decisions within the context of a single environmental milieu. The
difficulties potentially arising from the jurisdictional organization
of the agencies are easily seen in the area of energy production. The
scheme for energy development in the Northern Great Plains may
be used as an illustration. The Northern Great Plains Province,
covering large parts of Wyoming, Montana and the Dakotas, as
well as segments of Nebraska and Colorado, contains vast quantities
of readily accessible low-sulphur coal. Approximately 85 percent
of the country's low-sulphur coal reserves are located in public
lands under the jurisdiction of the Secretary of the Interior. In
1972 the Secretary initiated the Northern Great Plains Resources
Program in order to assess the social, economic and environmental
impacts of developing the resources and to provide a basis for
comprehensive treatment of the area."o If massive development of
the Northern Great Plains reserves for energy production is pursued
it will require decisions by and approval of numerous federal
agencies. Mining leases on federal lands and Indian reservations
must be obtained. Water rights must be acquired. Permits for dis-
charging pollutants into the air and water must be received. Trans-
mission line corridors must be obtained. A project of this nature is

103. E.g., Named Individual Members of the San Antonio Conservation Society
v. Texas Highway Dep't, 446 F.2d 1013 (5th Cir.), cert. denied, 403 U.S.
932 (1971). An appeal to Congress is still available, however. In section 154
of the Federal Highway Act of 1973, Congress specifically exempted the highway
project which was improperly segmented in San Antonio from the requirements of
NEPA upon the agreement of the State of Texas to repay any federal funds utilized
in the project. 87 Stat. 276 (1973). The Fifth Circuit later deferred to this statutory
command. Named Individual Members of the San Antonio Conservation Society v.
Texas Highway Dep't, 496 F.2d 1017 (5th Cir. 1974), cert. denied, 420 U.S.
926 (1975).

104. Factual portions of the following discussion fre taken from Sierra Club v.
Morton, 514 F.2d 856 (D.C. Cir. 1975).

1975] 25



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

massive and utterly dependent on the policies of the federal gov-
ernment, as expressed through four or five agencies.

A parallel case is found on the Hudson River where the FPC,
the Army Corps of Engineers and the NRC have all licensed power
plants over the past five years. These plants withdraw vast quanti-
ties of water from the River with the consequent likelihood of
damage to the river's fishery and other aquatic biota.o' Here NEPA
applied to each licensing proceeding, but no agency voluntarily
examined the effect on the estuary of any plant outside its own

jurisdiction. As a result, there has been no comprehensive federal
environmental policy on the treatment of the Hudson River and its
use as a productive fish spawning and nursery ground or as a cool-
ing sluice for power plants. Only the NRC has produced an impact
statement with the necessary comprehensive treatment of the
River,10 6 and that was prepared only under legal pressure from
intervenors in an NRC proceeding.1 7

Impact statements are organized by an agency's concept of the
project being undertaken. In the Northern Great Plains, the division
of authority has made the comprehensive analysis of potential
development a long and tortuous procedure demanding coordinated
action among comparatively independent arms of the govern-
ment.08 On the Hudson River there has been no real cooperation
or coordination among the agencies licensing projects.'09 In both
cases, a single human demand, energy production, is producing the
environmental intrusions which must be analyzed under the Act. In
both cases, analysis of the intrusions and the control of their effects
are divided among a number of agencies with independent histories
and traditions and a legal responsibility to reach their own judg-
ments. Through the referral mechanism the Act provides a possible
way to cure this fragmentation. The practical use of this tool is
essential if federal agencies are, at a minimum, to make contiguous
decisions founded on equivalent bases of data and commonly under-
stood arguments. It is clearly the aim of the Act to achieve such a

105. A. Macbeth, Structuring the Legal Regulation of Estuaries, in ESTUARINE

POLLUTION CONTROL: A NATIONAL ASSESSMENT (to be published 1976).
106. Indian Point 3 Statement, supra note 81, at ch. V.
107. Transcript at 6141-69, 10010-19, In re Consolidated Edison Company of

New York, Inc. (Indian Point 2), No. 50-247 (N.R.C., Dec. 6, 1965).
108. Sierra Club v. Morton, 514 F.2d 856 (D.C. Cir. 1975).
109. Macbeth, supra note 105.

26 [2: 1



The National Environmental Policy Act

coordinated approach. The broad policy statement of section 101 of
the Act is prefaced with the command that

it is the continuing responsibility of the Federal Government
to use all practicable means . . . to improve and coordinate
Federal plans, functions, programs and resources.10

It remains for the mandate to be put effectively into action.
A similar challenge is presented by the agencies which confine

their thinking to a multitude of small actions. This problem was
recognized by Congress at the time NEPA was passed:

Important decisions concerning the use and the shape of man's
future environment continue to be made in small but steady
increments which perpetuate rather than avoid the recognized
mistakes of previous decades."'

The dredge and fill permits issued by the Army Corps of Engineers
for dredging in navigable waters and for the disposal of the dredged
spoil are a clear example. Unlike energy development, numerous
dredge and fill applications are not part of a single, massive scheme
or plan. Thus, it is essential that the agency have a clear conception
of the total context within which the small, individual actions take
place. The Corps of Engineers has not come close to thinking in
these terms for bodies of water such as Long Island Sound or the
Chesapeake Bay. The rash of tidal wetlands statutes now passed
by the Eastern seaboard states is ample evidence that the Corps of
Engineers has not approached its responsibilities in the large or
comprehensive terms that would have made detailed state regula-
tion unnecessary."2

The first judicial rulings in this area are now beginning to ap-
pear. The Second Circuit has held in Natural Resources Defense

110. 42 U.S.C. § 4331(b) (1970).
111. S. REP. No. 296, 91st Cong., 1st Sess. 5 (1969).
112. ME. REV. STAT. ANN. tit. 38, §§ 471-78 (Supp. 1975); N.H. REV. STAT.

AN. ch. 483-A, §§ 1-6 (Supp. 1975); MASS. ANN. LAWS ch. 130, §§ 23-26 (Supp.
1975); R.I. GEN. LAWS ANN. § 11-46.1-1 (Supp. 1975); CONN. GEN. STAT. ANN.
§§ 22a-28 to -35 (1958); N.Y.E.C.L. §§ 25-0101 to -0601 (McKinney Supp. 1975);
N.J. STAT. ANN. §§ 13: 9A-1 to -10 (Supp. 1975); DEL. CODE ANN. tit. 7, §§ 7001-
08 (Supp. 1975); MD. ANN. CODE NR § 9-201 to -202 (1974); VA. CODE ANN.
§§ 62.1-13.1 to -13.20 (Supp. 1975); N.C. CEN. STAT. § 113-229 (Supp. 1975); GA.
CODE ANN. §§ 45-136 to -147 (1974).

1975] 27



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

Council v. Callaway that the Navy, in developing an impact state-
ment for its program for dredging and dumping in Long Island
Sound, must consider not only its own program but other dredging
and dumping programs that have passed beyond mere speculation,
that are in the same geographical area, and that will produce similar
environmental effects.'" The clear significance of this decision lies
in the fact that it places on the federal agency the responsibility of
reviewing and analyzing the intrusions into the environment not in
terms of a program or project but in terms of cumulative impact
of projects on an ecosystem regardless of their origin or end.

There are, from time to time, signs that agencies do see the
larger environment and put the medley of separate projects in
perspective. For instance, in the draft impact statement for the Fire
Island National Seashore, the National Park Service spoke elo-
quently of the barrier island system of the East Coast and the
agency's role in its management:

The barrier islands of the eastern United States provide a topo-
graphic continuum for observing the ecological transition from
the cold temperate climate of northern New England to the
subtropical climate of Florida and the Gulf of Mexico. As one
of the longest chains of major barrier islands in the world,
this dynamic system is of global importance. About 21 percent
of the total barrier-island mileage of the United States is man-
aged by the Federal Government. Nearly 400 miles of the
barrier island are administered by the National Park Service in
seven national seashores. . . . Most other Federal lands on bar-
rier islands are managed as wildlife refuges by the U.S. Fish
and Wildlife Service. Federal barrier-island holdings are
scattered rather uniformly from Massachusetts to Texas. If these
islands were managed as a continuous and dynamic ecological
system under provisions of an ecologically compatible manage-
ment program, perpetuation of the ecological diversity of the
system would be virtually assured. If, on the other hand, dif-
ferent management programs were adopted on different islands
(for instance, some stabilized to protect development, others
allowed to evolve totally in response to natural forces of
change), the continuity of the entire system-and therefore
much of its value-could be jeopardized. All Federal barrier-
island lands, as well as other preserved tracts in the chain

113. 524 F.2d 79 (2d Cir. 1975).

28 [2: 1



The National Environmental Policy Act

under non-Federal ownership, are therefore affected by man-
agement programs adopted on Fire Island, just as Fire Island
is affected by the ways other barrier islands are managed."4

This analytic approach is clearly the proper one. It treats the natural
environment as the primary concern and the contours of a particular
project as secondary. The simple realization that the environment
is organized without regard to projects makes the point evident.
How difficult it is for agencies to reverse their thinking is brought
home by the fact that despite its powerful rhetoric the Park Service
proposed reducing both the size of the Fire Island National Sea-
shore and its control over the non-federally owned portion of Fire
Island, thus lessening the management controls on the barrier is-
land system."' A long, uphill struggle remains before the environ-
mental imperatives predominate over the management imperatives.

B. Quality of Analysis in Impact Statements

The question of the quality of analysis in impact statements is a
central issue of the Act's effectiveness and success, and is un-
doubtedly the one on which it is most difficult to reach fair and
accurate judgments. It is not sufficient to address a question of
this magnitude by anecdote, and there is no reliable general review
of the issue. One must approach the question through an examina-
tion of limited indicative facts.

The EPA reviews draft statements under section 309 of the Clean
Air Act, and rates the quality of each statement as "Adequate",
"Insufficient Information" or "Inadequate"."6 The Agency's desig-

114. U.S. Dep't of the Interior, Environmental Statement (Draft), Master Plan,
Fire Island National Seashore, New York (1975), at 25-27.

115. Id. at 72-78.
116. The EPA defines the categories in the following manner:
Category 1-Adequate

The draft impact statement adequately sets forth the environmental impact
of the proposed project or action as well as alternatives reasonably available to
the project or action.
Category 2-Insufficient information

EPA believes that the draft impact statement does not contain sufficient in-
formation to assess fully the environmental impact of the proposed project or
action. However, from the information submitted, the Agency is able to make a
preliminary determination of the impact on the environment. EPA has requested

1975] 29



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

nation provides at least some index to performance under the Act.
An analysis of the statements reviewed in the last six months of
1974 provides the following results:

EPA EVALUATION OF DRAFT ENVIRONMENTAL IMPACT STATEMENTS

JULY-DECEMBER, 1974117

Agency

Department of Agriculture
Atomic Energy Commission
Corps of Engineers
Department of Defense
General Service Administration
Department of the Interior
Department of Transportation
Department of Housing & Urban

Development
Civil Aeronautics Board
Department of Commerce
Delaware River Basin Commission
Federal Power Commission
Interstate Commerce Commission
Department of Labor
Panama Canal
Department of State
Tennessee Valley Authority
Department of the Treasury
Veterans Administration
Water Resources Council

Totals

Q 0 5 0d 0

Cd .2 =E 'Ce 2 -4 =r.
03 ed Qs Q d CZ

-< '~/2 ~ a

25
1

29
1
7

54
46

0
0
1
1
2
0
0
0
0
1
0
0
0

168

37% 42
7 11

22 95
8 10

58 5
73 18
23 136

0 9
1
1
0
3
2
1
1
3
4
1
1
0

31% 344

63% 0
73 3
72 8
84 1
42 0
24 2
70 13

82 2
0
0
0
1
0
0
0
0
0
0
0
1

63% 31

0%
20
6
8
0
3
7

18

6%

that the originator provide the information that was not included in the draft
statement.
Category 3-Inadequate

EPA believes that the draft impact statement does not adequately assess the
environmental impact of the proposed project or action, or that the statement
inadequately analyzes reasonable available alternatives. The Agency has re-
quested more information and analysis concerning the potential environmental
hazards and has asked that substantial revision be made to the impact statement.

39 Fed. Reg. 34100 (1974).
117. 39 Fed. Reg. 29046-47, 30540-41, 32644, 34099-100, 36042, 37242-43,

39085-86, 40977-78, 45069-70 (1974); 40 Fed. Reg. 4335-36 (1975).
Percentage figures are given for those agencies which produced ten or more

statements. This collection of figures over a period of six months has no pretension
of being a statistically reliable review and should be viewed as indicative only.
Moreover, figures for particular agencies must be used with caution. For instance,
the figures for the Department of the Interior include impact statements prepared
by entities as disparate as the National Park Service, the Fish and Wildlife Service,

30 [2: 1



The National Environmental Policy Act

The most remarkable statistic here is the percentage of draft state-
ments which have insufficient information to assess the project
proposed. In this category, moreover, the agencies have not shown
any substantial improvement over time. Under a different classifica-
tion system used between October 1971 and November 1972, over
half the draft statements reviewed contained inadequate informa-
tion.""8 In the period between November 1972 and May 1973 under
the current guidelines, the EPA found that 59 percent of the impact
statements reviewed had insufficient information.'"

These figures raise the question of what sources of information
are or should be used for NEPA analysis. It is a rare federal agency
that has a highly developed research capability in environmental
data. Consequently, the agencies usually pass along to the bene-
ficiary of the project the task of compiling the data bases from
which the analysis is made. Realistically, this method of procedure
is not likely to change, but its opportunity for omission as well as
self-serving bias-often not explicit or overt-underscores the es-
sential need for independent and high quality analysis of the data
by the agency itself, as well as the ability to make fair judgments
on what data is needed for competent analysis. For instance, in the
environmental report which Consolidated Edison Co. of New York
submitted to the AEC in 1971 on its nuclear plants on the Hudson
River,120 the company failed to submit analyses of the River's fishery
which it had financed in response to the decision of the Second
Circuit in Scenic Hudson Preservation Conference v. FPC (Scenic
Hudson 1)121 and which in Scenic Hudson Preservation Conference

which operates the national wildlife refuges, and the Bureau of Land Management,
which has the massive coal and offshore oil leasing programs. In the period re-
viewed there were more than a dozen draft statements on national parks and wild-
life refuges in Alaska prepared by the Department of the Interior, all of which were
found adequate, two draft statements on coal leasing which were found inadequate,
and one on offshore oil leasing which was found to have insufficient information.

118. Liroff, EPA Comments on Environmental Impact Statements: One In-
dicator of Administrative Response to the National Environmental Policy Act of
1969 (unpublished paper prepared at the Brookings Institution, 1972).

119. F. Anderson, The National Environmental Policy Act, in FEDERAL ENVmON-

MENTAL LAw 272 (Dolgin & Cuilbert ed. 1974).
120. Consolidated Edison Co., Environmental Report Supplement No. 1, Indian

Point Unit No. 2 (September 1971). The omitted document to which no substantial
reference was made is Hudson River Policy Committee, Hudson River Fisheries
Investigation 1965-1968 (1969).

121. 354 F.2d 608 (2d Cir. 1965), cert. denied, 384 U.S. 941 (1966).

1975] 31



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

v. FPC (Scenic Hudson 11)122 it later had praised as the "best
studies possible."1 2

' The AEC located and analyzed these on its
own and used the data contained therein to draw conclusions on
the impact of power plant operation on the Hudson fishery which
were wholly at variance with those reached by the FPC and its
consultants.12 This sequence of events is unusual both in the dili-
gence of the staff in obtaining the relevant data which was not
offered to it by the license applicant and in its refusal to accept the
conclusions which were drawn from such data by another agency.
Undoubtedly, one reason for the thorough nature of the AEC's
analysis lies in the fact that the Commission had at its disposal
national laboratories, such as Oak Ridge, with their enormous
reservoir of expertise. The all too typical result is that reached by
the Corps of Engineers which in licensing two fossil-fuel power
plants on the Hudson River close to those licensed by the FPC and
the AEC, relied heavily on the utility companies in drawing up its
first impact statement, failed to show any awareness of the study
prepared in response to Scenic Hudson I, and evidenced a lack of
understanding of the facts of the estuary's operation beyond the
limited information supplied by the utilities.1'2  The referral mech-
anism and public participation may remedy these failings but
only at great expense by those least able to afford it. The efficient
and fair dispatch of the agency's duties under the Act demand that
the agency writing the statement be conscientiously responsible for
assembling and reviewing the data on which its analysis rests.

The EPA does not issue similar ratings on final statements, and

122. 453 F.2d 463 (2d Cir. 1971), cert. denied, 407 U.S. 926 (1972).
123. Brief for Intervenor, Consolidated Edison Co. of New York, at 73, Scenic

Hudson Preservation Conference v. FPC, 453 F.2d 463 (2d Cir. 1971).
124. The FPC was unwilling to review its conclusion in light of the AEC staff

finding, but the Second Circuit refused to allow the license to stand when it rested
on facts which might be grossly in error. The court remanded the case to the FPC
for a second time. Hudson River Fishermen's Ass'n v. FPC, 498 F.2d 827 (2d Cir.
1974).

125. There is no mention of the Hudson River Fisheries Investigation, 1965-1968,
note 120 supra, and no use of its data base in the Corps of Engineers' statements
issued before the consent judgments were entered in Hudson River Fishermen's
Ass'n v. Orange & Rockland Utilities Civil No. 72-5460 (S.D.N.Y., filed Dec. 29,
1972) and Hudson River Fishermen's Ass'n v. Central Gas & Electric Co. Civil No.
72-5459 (S.D.N.Y., filed Dec. 29, 1972). The Corps of Engineers openly admitted
in those statements that its major source for the analysis of marine biology consisted
of documents prepared by the utility's consultants. Bowline Statement, Draft and
Revised Draft, supra note 83, at 20.

32 [2: 1



The National Environmental Policy Act

undoubtedly there is improvement from draft to final statements in
many instances. Nevertheless, it seems clear that five years after
the passage of the Act most agencies, particularly the developmental
agencies, are still not able to meet the basic requirements of the
Act on a regular basis. This conclusion is buttressed by a recent
study of the performance of the Department of Housing and Urban
Development under the Act carried out by the GAO.12 ' The GAO
emphasized that the Department determines that many projects do
not warrant impact statements under the Act, but that its files
frequently do not contain adequate information to justify that
conclusion or even to show on what consideration the conclusion
was reached. This analysis raises the serious question of whether
the threshold inquiry into whether or not to prepare an impact
statement under the Act is properly answered by the relevant
agency. If it is not, then the rough figures provided by the EPA's
review of the draft statements grossly underestimate the lack of
compliance with the Act. An index of money and manpower spent
by the agencies on impact statement work would be another
valuable, rough guide to determine the extent to which the agencies
have taken the Act to heart. Unfortunately, such numbers do not
exist.

Suffice it to say that the EPA ratings and a money and manpower
table are at best very speculative guides to performance under the
Act. The first academic case studies of the Act's operation are now
appearing,1 2

T and the CEQ itself is commissioning an analysis of
various agencies.12" The results so far remain very sketchy. The

126. GENERAL ACCOUNTING OFFICE, ENVIRONMENTAL ASSESSMENT EFFORTS AND

PROPOSED PROJECTS HAVE BEEN INEFFECTIVE-DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT (1975).
127. E.g., Culhane, Federal Agency Organizational Change in Response to

Environmentalism, 2 HUMBOLDT J. Soc. REL. 31 (1974); Friesema & Culhane, Social
Impacts, Politics and the Environmental Process, Public Law Project, Center for
Urban Affairs, Northwestern University (1975); Strohbehn, NEPA's Impact on
Federal Decisionmaking: Examples of Noncompliance and Suggestions for Change,
4 ECOL. L.Q. 93 (1974). The Institute for Ecology is carrying out a review of
selected impact statements which is to result in proposed guidelines for the writing
of statements. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY:

FIFTH ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY 386 (1974).
128. COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY: THE

FIFTH ANNUAL REPORT OF THE COUNCIL ON ENVIRONMENTAL QUALITY 386 (1974).
A preliminary report has been made on the implementation and administration of
the Act by the Forest Service and the Bureau of Land Management, and a final
report on NEPA implementation by the Navy.

1975] 33



COLUMBA JOURNAL OF ENVIRONMENTAL LAW

issue remains an urgent order of business if competent evaluation
of the Act on an impartial review of the facts is to be obtained.

C. Review

The issues of sources of information and quality of analysis are
of great importance because substantive review under the Act is
and is likely to remain weak. The courts have emphasized the
procedural requirements of NEPA; but while many will measure
the statement against the substantive policies of the Act, they are
unwilling to reverse agency decisions that are not clearly arbitrary
or obviously give insufficient weight to environmental values.29

Regardless of the standard of review employed by a court, the blunt
analysis provided by the court in Environmental Defense Fund,
Inc. v. Froelke is likely to remain true:

It is simply unrealistic for plaintiffs in this case to assume that
this or any other Court is going to make findings of fact which
would attempt to resolve the conflicts between data contained
and relied upon in the final EIS which may conflict with data
which plaintiffs believe is more reliable....

[Congress] did not, in our judgment, contemplate or anticipate
that courts were to make choices and determine the merits of
conflicting views between the two or more schools of scientific
thought and to thereafter disapprove any final EIS which may
rely upon data which was inconsistent with the court's find-
ing.'3 0

129. It is unquestioned that NEPA establishes procedural requirements which
must be complied with to the fullest extent possible. A number of circuit courts have
further held that the procedural requirements of section 102(2) were established
so that the agencies will consider and meet the substantive goals of section 101 and
that courts may review the substance of the section 102 statements. E.g., Environ-

mental Defense Fund v. Corps of Engineers, 470 F.2d 289 (8th Cir. 1972), cert.
denied, 412 U.S. 931 (1973). This review has generally required the agencies to
meet two standards: first, that the statement be compiled in good faith as in-
terpreted by the rule of reason; and, second, that the balance of costs and benefits
struck not be arbitrary or clearly give insufficient weight to environmental values.
E.g., Sierra Club v. Morton, 510 F.2d 813 (5th Cir. 1975); Calvert Cliffs' Co-
ordinating Comm. v. AEC, 449 F.2d 1109 (D.C. Cir. 1971); National Helium Corp.
v. Morton, 486 F.2d 995 (10th Cir. 1973), cert. denied, 416 U.S. 993 (1974). The
formulation of these standards varies from court to court, and some courts have
maintained a strictly procedural standard. E.g., Cady v. Morton, - F.2d
8 ERC 1097 (9th Cir. 1975).

130. 368 F. Supp. 231, 240 (W.D. Mo.), aff'd, 477 F.2d 1033 (8th Cir. 1973).

34 [2: 1



1975] The National Environmental Policy Act 35

Moreover, the EPA and the other referral agencies can do little
beyond commenting, and the CEQ has interpreted its own position
to be the recipient of impact statements with a very limited sub-
stantive review function.'' It is unfortunate that the Council has
not chosen to take a more assertive position given the deference that
many courts,'3 2 with the exception of the Fifth Circuit,13 3 have
given to its guidelines and administrative interpretation of NEPA.
Had the CEQ taken the position that the Act's requirement that
impact statements be made available to it' 34 contained the implicit
power to reject inadequate statements, it might have had great
influence on the courts and promoted compliance with the Act
"to the fullest extent possible.""'

V. THE FuTFURE

There is no doubt that the environmental movement has come a
long way in five years. Since the passage of NEPA there have been
major enactments in the fields of air and water pollution at the

131. Anderson, supra note 119, at 248-49.
132. E.g., Greene County Planning Bd. v. FPC, 455 F.2d 412, 421 (2d Cir.),

cert. denied, 409 U.S. 849 (1972); Warm Springs Task Force v. Cribble, 417
U.S. 1301 (stay of district court order by Douglas, J.).

133. Sierra Club. v. Callaway, 499 F.2d 982 (5th Cir. 1974); Hiram Clarke
Civic Club v. Lynn, 476 F.2d 421 (5th Cir. 1973).

134. 42 U.S.C. § 4332 (1970).
135. The CEQ functions both as the recipient of NEPA statements and as an

environmental advisor to the President, 42 U.S.C. § 4332(2)(C) (1970). It has largely
chosen to emphasize its role as advisor and not to exploit or attempt to expand its
role as a reviewer of NEPA statements. Anderson, supra note 119, at 249. The
language of NEPA simply states that impact statements shall be made available to
the CEQ. 42 U.S.C. § 4344 (1970). Congress has turned aside at least one attempt
to make the CEQ's powers more explicit. In the Senate version of what is now
section 309 of the Clean Air Act Amendments of 1970, the EPA was given the
responsibility to review impact statements, and where a statement was found un-
satisfactory, "the matter shall be referred to the Council on Environmental Quality
for a determination and recommendation to the President which shall be made
public." S. REP. No. 4358, 91st Cong., 2d Sess. 310 (1970). The Act as passed
simply states that the matter shall be referred to the CEQ. 42 U.S.C. § 1857h-7
(1970). The Conference report gives no explanation of why the deletion was made.
H. CONF. REP. No. 1783, 91st Cong., 2d Sess. (1970). The vagueness of NEPA
and the Clean Air Act as to the CEQ's responsibilities provide ample foundation
for the Council's apparent unwillingness to assert its moral authority on a regular
basis by condemning those impact statements filed with it which are patently in-
adequate, and thus enhancing its responsibility under the Act and executive orders
to oversee the operation of the Act.



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

federal level, increasing efforts by the states to control the use of
land, and passage of many "little NEPAs."'3 6 The Act has un-
doubtedly made a major difference in the attitude and actions of
federal agencies. Nevertheless, there has been steady erosion of
the scope and force of the Act in Congress and the agencies, and
time has exposed weaknesses in the scheme of regulation which the
Act established in law. It is a tribute to the power of the Act that
it has been contested as bitterly as the congressional amendments
and the volume of litigation indicate. If NEPA is to continue with
that force and to be improved, there are several cardinal points to
which attention must be given in the next five years.

1. The Act's mandate should be universal and should require
federal preparation of and responsibility for impact statements. The
argument for the universal mandate is a simple one. Both the
environment and the federal government are ubiquitous. The
policies of the Act are therefore both national and comprehensive.
The environmental conditions vary enormously from one milieu to
another, and the imperatives of public policies are equally variable.
Thus NEPA's process of analysis and judgment based on the review
of the facts in particular cases, in the context of a national policy,
is sound. The open participation of other agencies and the public
in the process is a responsive form of government and one of the
best methods for overcoming agency bias and private influence.
There are, of course, true emergency situations where the time
necessary for such an analysis is not available.1 3 ' However, there is
no basis for wide or general exceptions. For instance, the exclusion
of water quality issues from the review process of the impact state-
ment can only unbalance the broad and comprehensive policies of
the Act.

The argument for maintaining federal preparation of and respon-
sibility for impact statements proceeds on two lines. First, delega-
tion of that responsibility has most often been made to those who are
applying for federal funds or licenses.1 38 This is the case, for in-

136. See note 16 supra.
137. For example, where regulations under a statute must be issued within

fifteen days of enactment as in the case of the Emergency Petroleum Allocation
Act of 1973. Gulf Oil Corp. v. Simon, 373 F. Supp. 1102 (D.D.C.), aff'd, 502
F.2d 1154 (Tem. Emer. Ct. App. 1974).

138. See notes 34-38 supra.

36 [: 1



The National Environmental Policy Act

stance, with the 1975 amendment to NEPA.u' This establishes an
inherently self-serving bias in the preparation of the impact state-
ment, and destroys much of the independent analysis that is crucial
to the effective operation of the Act. Second, delegation to state or
local authorities frequently means delegation to a group which does
not undertake a particular type of project on a regular basis and
consequently is less likely to have, or even understand the need for
having, the environmental expertise for fully discharging its re-
sponsibilities under the Act. Officials of the EPA are already be-
ginning to criticize the performance of local authorities under the
1974 Housing and Community Development Act on these
grounds.1'o The EPA has found local performance very uneven, and
thus the national aspect of the Act is effectively lost.

The counter argument to this position is generally two-fold:
first, state or local authorities are closer to the actual circumstances
of a particular plan or project and are better able to analyze its
effects; and, second, state or local agencies often have a broader
mandate and view than does a narrowly focused federal agency,
such as the FHWA, which does not have responsibility for trans-
portation systems other than roads. The general answer is that
federal responsibility in no way has or should prevent effective
local contribution to the preparation of an impact statement. More
directly, the first argument is little more than an undermining of
the independent analysis for which the Act calls. The answer to
the second argument should be to make the referral mechanism
work effectively and insure that the requirement of examining al-
ternatives is enforced. In the final analysis, local control of local
destinies is preserved in most cases by the choice of not accepting
funding under a federal program.

2. The referral mechanism must be made more effective, and in
some cases consultation should be made mandatory. NEPA recog-
nizes that many agencies do not have a full range of environmental
expertise while others such as the EPA, the Fish and Wildlife
Service or state and local agencies are repositories of information
which should be available throughout the federal government. So
long as providing this service to sister agencies is discretionary and
the service must compete for funds against mandatory agency

139. See discussion at notes 50-53 supra.
140. ENVIR. RPTR.-CURRENT DEv. 1074 (1975).

1975] 37



COLUMBIA JOURNAL OF ENVIRONMENTAL LAW

programs, the referral mechanism is likely to be effective only on
a sporadic basis. The funding for review under the referral mech-
anism should be made open and explicit in each agency of the
federal government so that basic compliance with the scheme can
be assured. In addition, at least for those agencies which review
their own projects and programs under NEPA, such as the dam-
building operations of the Corps of Engineers or the construction
of major government installations by the Department of Defense
or the General Services Administration, consultation with the lead-
ing environmental agencies should be mandatory. This is the most
obvious method within the framework of the Act to eliminate
self-serving bias within the federal agencies themselves. The courts
have long deferred to administrative agencies with particular ex-
pertise in a subject matter. It can be expected that environmental
values will be given more of the weight which NEPA assigned to
them when the views of environmental agencies must be heard and
considered under the terms of the Act.

3. A fee-shifting provision should be added to the Act so that in
both court and agency proceedings public participation can con-
tinue as an active reality. So long as the shifting of fees for at-
torneys and expert witnesses remains discretionary, harassing litiga-
tion will not be encouraged. Suits under NEPA in which citizens
prevail essentially require government agencies to do that work
which it was their statutory duty to perform. It is hard to accept
the argument that particular citizens should have to pay to assure
the public that the government obeys the law. In addition, the
disproportionate resources brought to most NEPA controversies by
government or industry in opposition to citizens' groups make it
evident that fee-shifting would not throw a major burden on the
proponents of projects.

4. Environmental national laboratories should be established so
that agencies will have available a source of data and analysis
whose primary concern is ecological systems and not the promotion
and production of projects. This kind of resource is particularly
needed where large-scale environmental systems are affected either
by massive proposals for development or by constant, cumulative
impacts. In these situations, a view of the larger context, greater
than that likely to be developed by a line agency on an ad hoc
basis, should be available. Some work of this sort was carried on at
the national laboratories under the jurisdiction of the AEC. Similar

38 [2: 1



The National Environmental Policy Act

resources are available in other places such as the EPA's national
laboratories. More of those resources are needed, and they are
needed in a form which will make them readily available to all
federal agencies. For instance, the FPC does not license a large
number of dams or pumped storage projects, but any such project
is likely to be on a large scale. If the FPC had ready access to a
body of scientists within the government with environmental knowl-
edge and the ability to perform impartial and high quality analytic
work, the Commission's responsibilities under the Act could be
more effectively and economically carried out. This system of
accessible laboratories should go a reasonable distance toward re-
dressing the imbalance between agency managerial imperatives and
environmental imperatives under the Act.

The Act has accomplished a great deal. The opposition to it from
many quarters as well as the victories which the defenders of the
Act have achieved in court are testimony to that fact. But much
remains to be done. No other act has the scope of application or the
breadth of policy to achieve as much. The will and the resources
must be applied to assure that the promise of the Act is achieved.

1975] 39