Decision Analysis in Environmental Decisionmaking: Improving the Concorde Balance I. INTRODUCTION Existing knowledge about the environment is technical1 and in- complete, 2 posing major problems for "generalist" decisionmakers who lack the technical expertise to handle the uncertainties of the environmental issues confronting them. Forced to rely on technical experts for the development of data and analysis, generalist de- cisionmakers may make judgments based on inaccurate and incom- plete information. 3 Several approaches to alleviate this handicap might be suggested. One approach would be to provide decisionmakers with complete information about the environment, a task not yet feasible. Another 1. See Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971); International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C. Cir. 1973); City of Romulus v. County of Wayne, 392 F. Supp. 578 (E.D. Mich. 1975); Sierra Club v. Froehlke, 359 F. Supp. 1289 (S.D. Tex. 1973), modified sub nom. Sierra Club v. Callaway, 499 F.2d 982 (5th Cir. 1974); B. ACKERMAN et al., THE UNCERTAIN SEARCH FOR ENVIRON- MENTAL QUALITY 9-66 (1974) [hereinafter cited as UNCERTAIN SEARCH]. 2. See Reserve Mining Co. v. United States, 498 F.2d 1073 (8th Cir. 1974); UN- CERTAIN SEARCH, supra note 1, at 9-66; Gelpe & Tarlocke, The Uses of Scientific Information in Environmental Decisionmaking, 48 So. CALIF. L. REV. 570, 588-589 (1972). 3. "Decisionmakers" include agency and department heads, judges and members of Congress. The difficulties these individuals experience in making judgments about technical matters have been well documented. See Ohio v. Wyandotte Chemi- cals Corp., 401 U.S. 493 (1971); International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 650 (D.C. Cir. 1973); CONGRESSIONAL RESEARCH SERVICE, 92D CONG., 1ST SESS., TECHNICAL INFORMATION FOR CONGRESS, REPORT TO THE SUBCOMM. ON SCIENCE, RESEARCH AND DEVELOPMENT OF THE HOUSE COMM. ON SCIENCE AND ASTRONAUTICS 5-13 (1971); Leventhal, Environmental Decisionmaking and the Role of the Courts, 122 U. PA. L. REV. 509 (1974); Wright, Court of Appeals Review of Federal Regulatory Agency Rulemaking, 26 AD. L. REV. 199 (1974). 156 The Concorde Decision solution would be to choose decisionmakers who could analyze sci- entific data without assistance. This suggestion, too, is utopian. A third approach would be to improve the effectiveness of the trans- fer of knowledge between decisionmakers and technical experts. As advocated in this article, this solution entails the use of "decision analysis," a technique for organizing limited knowledge and quan- tifying uncertain impacts. The argument for the use of decision analysis will be advanced in three stages. First, the technique will be explained. The need for the technique will then be demonstrated by reviewing a major environmental issue: United States Secretary of Transportation William Coleman's decision permitting Concorde landings in the United States. This examination will show that the process leading to that decision could have been improved by implementation of the technique. Finally, the article will suggest a structure for using decision analysis in environmental decisionmaking. II. DECISION ANALYSIS Decision analysis is described best by example. 4 Suppose that a decisionmaker must choose between alternatives X and Y. If he chooses X, harm A will certainly result, and harm B will be avoided. If he chooses Y, harm A will be avoided, but harm B might result. Although no one knows the costs of harms A or B or the probability that harm B will occur, experts can estimate values for the uncertain variables. A decision analyst investigates this problem in four steps. First, the relationships among decision variables are displayed along the decision tree, circumscribed by a dotted line in Figure One (disre- gard parenthetical material). The squares denote junctures where the decisionmaker may exercise his judgment to affect outcomes, and the circles indicate occasions when chance determines results. The variables controlling the value of any branch of the tree are listed along that branch. Second, a decision analyst generates equations describing how variables should be combined to determine the value of any deci- sion tree branch. For example, the "value" or "cost" of X, desig- 4. The discussion of decision analysis has been derived from two books: H. RAIFFA, DECISION ANALYSIS (1968); R. SCHLAIFER, ANALYSIS OF DECISIONS UNDER UNCERTAINTY (1969). 1978] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW Figure One: Decision Tree Showing Opportunity for Additional Research where: PA = Probability harm A will result = 1. PB = Probability harm B will result. (1-PB) = Probability harm B will not result. VA = Value of world that contains harm A. VB = Value of world that contains harm B. VNB = Value of world where harms A and B are avoided. nated V, should be calculated by multiplying the cost resulting from harm A by the probability that harm A will occur: Vx = VA X PA Similarly, the "value" or "cost" of Y, designated Vy, should be cal- culated by multiplying the cost resulting from harm B by the prob- ability that harm B will occur, and subtracting the value of avoiding [5: 156 The Concorde Decision harms A and B multiplied by the probability that neither A nor B will result: Vy = (VB X PB) - (VNB X (I-PB)) Analysts quantify variables in the third step of decision analysis. The values of some variables, such as PA, may be definitely known, but the values of VA and others are uncertain. In the latter case, expert appraisers estimate several values for the unknown variable, each corresponding to a different level of certainty. For example, if an appraiser estimates that there is a twenty-five percent chance that the actual cost of harm A, should it occur, will be less than a particular figure, he will assign that figure to VA at certainty level twenty-five, designated VA25. Similarly, experts assign values for VA at other certainty levels (VA,, VA2, VA3, • • • VA100). 5 The value for VA may then be calculated by averaging the various estimates using Equation One. 100 VA = ( VA)/100 i=l 100 where: I VAi = VA1 + VA2 + VA3 +... VA i=1 Equation One For example, if values for VA are estimated at one hundred levels of certainty as shown in Table One, the averaged value of harm A is 1274. The final step of decision analysis-the compilation of results- may be accomplished in two ways. First, the costs estimated at various levels of certainty may be compiled as in Table One. Such information enables the decisionmaker to understand the implica- tions of uncertainty by examing both the seriousness and likelihood of possible impact levels. Alternatively, these estimates can be av- eraged using Equation One. A second type of compilation determines the desirability of un- 5. For a more detailed discussion showing how this is accomplished, see H. RAIFFA, DECISION ANALYSIS 161 (1968). For a discussion of the problems encoun- tered in the use of these procedures, see Tuersky & Kahneman, Judgment under Uncertainty: Heuristics and Biases, 185 Sci. 1124 (1974). 1.978] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW Equation One Table One: Calculating Average Values for VAa x VAx x VAx x VAx x VAx 1 2 26 20 51 200 76 2,000 2 2 27 20 52 200 77 2,000 3 2 28 20 53 200 78 2,000 4 20 29 20 54 200 79 2,000 5 20 30 20 55 200 80 2,000 6 20 31 20 56 200 81 2,000 7 20 32 20 57 200 82 2,000 8 20 33 20 58 200 83 2,000 9 20 34 200 59 200 84 2,000 10 20 35 200 60 200 85 2,000 11 20 36 200 61 200 86 2,000 12 20 37 200 62 200 87 2,000 13 20 38 200 63 200 88 2,000 14 20 39 200 64 200 89 2,000 15 20 40 200 65 200 90 2,000 16 20 41 200 66 200 91 2,000 17 20 42 200 67 200 92 2,000 18 20 43 200 68 2,000 93 2,000 19 20 44 200 69 2,000 94 2,000 20 20 45 200 70 2,000 95 2,000 21 20 46 200 71 2,000 96 2,000 22 20 47 200 72 2,000 97 2,000 23 20 48 200 73 2,000 98 20,000 24 20 49 200 74 2,000 99 20,000 25 20 50 200 75 2,000 100 20,000 100 VA = I VAi/1 00 = 127,406/100 = 1274 i=l x = certainty level VAx = VA at certainty level x a Any values of VAx might be used. dertaking additional research to estimate more accurately the range of possible outcomes. The option of doing additional research shall be designated as alternative Z. Under this method of compilation, the possible experimental conclusions are outlined. Each conclu- sion is then in turn assumed to be true, and the decision analysis is [5: 156 The Concorde Decision repeated to determine the resulting values. These values are next averaged according to the estimated probability that each conclu- sion will occur. The cost of conducting the research is added to this average. The resulting value, which is more informative than the pre-experimental value of the branch, indicates the advisability of additional research. For example, assuming averaged values for uncertain quantities in the above example as follows: VA = $1274 VB = $2000 VNB = $0 PB = 0.8 (1- PB) = 0.2 The value of X would be calculated: Vx = VA X PA = $1274 x 1 = $1274 while the value of Y would be: Vg = (VB X PB) - (VNB X (1 - PB)) = ($2000 x 0.8) - ($0 x 0.2) = $1600 To minimize damages, the decisionmaker would choose alternative X resulting in $1274 of damage. Now, suppose the decisionmaker is allowed to choose option Z, which is to conduct $30 worth of additional research before choosing between X and Y. Scientists estimate that if the additional research is conducted, they will know whether PB equals 1.0 or 0.6. Scientists also estimate that either PB value is as likely as the other. Figure One shows the new decision tree. If PB equals 1.0, Vx = $1274 and Vy = $2000, the decisionmaker will choose X. If, however, PB equals 0.6, Vx = $1274 and Vy = $1200, the decisionmaker will choose Y. Thus: Vz = $1274 x 0.5 + $1200 x 0.5 + $30 = 1267 Since the cost of Z is less than the cost of X or Y, the additional studies should be undertaken. Decision analysis is, thus, a technique which explicitly communi- cates the limits of existing knowledge rather than producing new information. Such explicit communication is valuable because it 1978] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW provides the decisionmaker with information about the impact of uncertainty on the value of any option, including that of seeking new information. In addition, explicit communication enables others to examine the analysis readily and point out its weaknesses to the decisionmaker, thereby lessening the chance that analytical errors will occur. III. THE CONCORDE DECISION Having described the fundamental characteristics of decision analysis, this article will now focus upon a particular instance of environmental decisionmaking. The Concorde decision merits ex- amination in some detail because it reveals the weaknesses of a fairly sophisticated and rational decisionmaking process which lacked the rigorous completeness of decision analysis techniques. A. The Decision and Its History On February 4, 1976, Secretary Coleman announced his deci- sion 6 permitting the Concorde, a supersonic transport, to provide commercial service to the United States for a sixteen-month dem- onstration period. 7 The decisionmaking process spanned several months. As early as July, 1974, the Federal Aviation Administra- tion (FAA) foresaw the advent of the Concorde and began studying the environmental threat it posed.8 Following the British and French owners' requests for permission to fly the Concorde be- tween Europe and the United States in early 1975, 9 the FAA re- leased its Draft Environmental Impact Statement (DEIS).10 The 6. U.S. DEP'T OF TRANSPORTATION, THE SECRETARY'S DECISION ON CONCORDE SUPERSONIC TRANSPORT 3 (1976) [hereinafter cited as SECRETARY'S DECISION]. 7. FEDERAL AVIATION ADMINISTRATION, U.S. DEP'T OF TRANSPORTATION, CON- CORDE SUPERSONIC TRANSPORT AIRCRAFT: FINAL ENVIRONMENTAL IMPACT STATE- MENT A-3 (1975) [hereinafter cited as FEIS]. Up to four daily roundtrip flights to New York's Kennedy Airport, and two to Dulles Airport near Washington, D.C., were permitted. Half the flights would be flown by Air France from Paris, and half by British Airways from London. 8. Aircraft Noise Abatement: Hearings Before the Subcomm. on Aeronautics and Space Technology of the House Comm. on Science and Astronautics, 93d Cong., 2d Sess. 364 (1974) (statement of Frederick A. Meister). 9. Before any foreign air carrier can operate planes in commercial service to this country, it must obtain permission from the United States government. See Opera- tions of Foreign Air Carriers, 14 C.F.R. §129 (1977). 10. FEDERAL AVIATION ADMINISTRATION, U.S. DEP'T OF TRANSPORTATION, CONCORDE SUPERSONIC TRANSPORT AIRCRAFT: DRAFT ENVIRONMENTAL IMPACT [5: 156 1978] The Concorde Decision FAA's multivolume Final Environmental Impact Statement (EIS)" was released on November 13, 1975, followed on February 4, 1976 by an EIS Addendum.12 The last step leading to the decision was a day-long hearing on January 5, 1976,13 over which Secretary Cole- man presided. 14 B. An Exceptional Decisional Process The Concorde decisional process was exceptional by any conven- tional standard of evaluation for several reasons. First, experts de- voted much effort to gathering information. Substantial information was generated from government agency research. In particular, the FAA's Climatic Impact Assessment Program (CIAP)15 and continu- STATEMENT (1975) [hereinafter cited as DEIS]. The DEIS is mandated by the Na- tional Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4347 (1970). The statu- tory provisions regulating the preparation of an EIS are discussed below. See text accompanying notes 121-127 infra. 11. 40 Fed. Reg. 53,612 (1975). 12. FEDERAL AVIATION ADMINISTRATION, U.S. DEP'T OF TRANSPORATION, CON- CORDE SUPERSONIC TRANSPORT AIRCRAFT: FINAL EIS ADDENDUM (1975) [hereinaf- ter cited as EIS ADDENDUM]. 13. The Concorde Furor, NEWSWEEK, Feb. 16, 1976, at 16. 14. The Secretary's demonstration program survived a challenge in the Circuit Court of Appeals for the District of Columbia in the case of Environmental Defense Fund v. United States Dep't of Transp. [1976] 14 Av. CAS. (CCH) 17,140 (D.C. Cir.). The initiation of the program was at first delayed by the refusal of the Port Authority of New York and New Jersey to grant permission for the Concorde to land at Kennedy Airport. Federal District Judge Milton Pollack overruled this refusal on grounds of federal preemption. British Airways Bd. v. Port Auth. of N.Y., 431 F. Supp. 1216 (S.D.N.Y. 1977). On appeal from Judge Pollack's order, the Court of Ap- peals for the Second Circuit rejected the preemption argument and remanded for consideration of the reasonableness of the thirteen-month delay by the Port Authority in promulgating noise regulations for supersonic aircraft. 558 F.2d 75 (2d Cir. 1977). Judge Pollack found that the Port Authority's delay had indeed been unreasonable, and that this delay constituted a forfeiture of the Port Authority's limited privilege to establish noise regulations. 437 F. Supp. 804 (S.D.N.Y. 1977). Judge Pollack was affirmed by the Second Circuit, which modified his order to provide that the Port Authority might in the future adopt a new, uniform and reasonable noise standard if the existing noise limitation was ultimately determined to be inadequate. 564 F.2d 1002 (2d Cir. 1977). 15. CLIMATIC IMPACT ASSESSMENT PROGRAM, U.S. DEP'T OF TRANSPORTATION REPORT OF FINDINGS: THE EFFECT OF STRATOSPHERIC POLLUTION BY AIRCRAFT (1974) [hereinafter cited as ClAP REPORT]. CIAP spent $22 million and three years of research to discover the impact of the Concorde on ozone. See Inadvertent Mod- ification of the Upper Atmosphere: Research and Development Relating to Halocar- bons and Ozone Depletion: Hearings Before the Subcomm. on the Environment and the Atmosphere of the House Comm. on Science and Technology, 94th Cong., 2d Sess. 8 (1975) [hereinafter cited as Inadvertent Modification]. COLUMBIA JOURNAL OF ENVIRONMENTAL LAW ing governmental aircraft noise research1 6 contributed to the body of knowledge influencing decisionmakers. 1 7 Second, the Concorde decisionmaking was remarkable for the candidness which marked its progress. Notice of the pending deci- sion was provided by the news media,18 and a release by Secretary Coleman on November 13, 1975 announced the relevant decisional issues. 19 Participation by affected parties was encouraged; more than 120 witnesses representing governmental agencies of all levels as well as private organizations spoke at the EIS hearings and again at the hearing sponsored by Coleman. 20 Moreover, the final de- 16. Implementation of the Noise Control Act of 1972 (Aircraft-Airport Noise): Hearing Before the Subcomm. on Environmental Pollution of the Comm. on Public Works, 93d Cong., 2d Sess. 13 (1974) (statement of Frederick A. Meister). Extensive tests of the Concorde's noise level were also conducted. See ENVIRONMENTAL PRO- TECTION AGENCY, NOISE MEASUREMENT OF CONCORDE 02 APPROACH AND TAKEOFF AT DALLAS-FT. WORTH AND DULLES INTERNATIONAL AIRPORTS (1974); ENVIRONMENTAL PROTECTION AGENCY, CONCORDE 02 MEASUREMENTS MADE AT BOSTON (1974); OFFICE OF NOISE ABATEMENT, U.S. DEP'T OF TRANSPORTATION, SOUND AND VIBRATION MEASUREMENTS FOR CONCORDE SUPERSONIC TRANSPORT AND SUBSONIC JET AIRCRAFT (1974); TRANSPORTATION SYSTEMS CENTER, NOISE EMISSIONS AND BUILDING STRUCTURAL VIBRATION LEVELS FROM THE SUPER- SONIC CONCORDE AND SUBSONIC TURBOJET AIRCRAFT (1975). 17. Foreign affairs information was obtained form the Secy. of State. See letter from Henry A. Kissinger to Secy. Coleman (Oct. 6, 1975), reprinted in FAA. Certifi- cation of the SST Concorde: Hearings Before a Subcomm. of the House Comm. on Government Operations, 94th Cong., 1st & 2nd Sess. [hereinafter cited as FAA Cer- tification] 375-76 (1976) (statement of Rep. William Randall); Oversight Hearings on the SST, Hearings Before the Senate Subcomm. on Commerce, 94th Cong., 2d Sess. 19 (1976) (statement of Sen. Lowell Weicker). The National Aeronautics and Space Administration also reported on the technological advantages of the Concorde. See letter to Secy. Coleman (Dec. 24, 1975), reprinted in part in SECRETARY'S DECISION, supra note 6, at 52-53. 18. See, e.g., The Concorde: Who Will Let It Fly?, BUSINESS WEEK, Jan. 19, 1976, at 54; Coleman's Way: Concorde Debate; NEWSWEEK, Dec. 29, 1975, at 47-48; The Concorde Still Faces A Rough Flight; BUSINESS WEEK, Oct. 6, 1975, at 29; Concorde Decision Delayed to February, AVIATION WEEK, Nov. 17, 1975, at 25; Across Atlan- tic at 1400 mph: Concorde, U.S. NEWS & WORLD REPORT, Sept. 22, 1975, at 63; Hearing on Concorde's Permit for Dulles Flights Eyed, Washington Post, Apr. 9, 1975, § B, at 7, col. 1; C.O.G. Votes to Oppose Concorde Flights into Dulles, Washington Post, Apr. 10, 1975, § A, at 36, col. 1; U.S. Seate Committe Approves Ban on Concorde at U.S. Airports, Washington Post, July 19, 1975, § A, at 4, col. 1; EPA Reviews Possible Noise Problems of Concorde Jet, Washington Post, Nov. 23, 1975, § B, at 1, col. 1. See generally, articles cited in 1 NEW YORK TIMES-INDEX 1975 55 (1976). 19. 40 Fed. Reg. 53,612 (1975). 20. U.S. Dep't of Transportation, Public Hearings on Applications of Air France and British Airways to Operate Concorde Aircraft in Limited Commercial Service to New York and Washington (1976). At the hearings testimony was heard from rep- [5: 156 The Concorde Decision cision was made by an impartial decisionmaker, Secretary Cole- man, who explained his opinion in writing21 as well as before Con- gressional committees during the hearings. 22 Of final note is the high level of authority at which the Concorde decisional process occurred. Secretary Coleman directed an un- usual amount of attention to the Concorde issue between his November, 1975 release and his February 4, 1976 decision.2 3 Despite the laudable aspects of the Concorde decisional process noted immediately above, other characteristics of the process de- tracted from fully rational decisionmaking. In the next few sections, this article will examine the costs resulting from the Concorde's operation, and it will focus on ways in which decision analysis techniques could have evaluated these costs more accurately than did the techniques actually employed. C. The Costs of a Decision Allowing the Concorde to Land 1. Damage to Ozone One negative consequence of the Concorde's operation is dam- age to the ozone.24 Since the Concorde flies above the weather its resentatives of the British and French governments, the Coalition Against the SST, the Sierra Club, Friends of the Earth, the Environmental Defense Fund, the Hotel Association of Washington, D.C., the City Council of Los Angeles, the Anti-Concorde Project, the Wilderness Society, and the Fairfax County (Virginia) Chamber of Com- merce. 21. SECRETARY'S DECISION, supra note 6. 22. FAA Certification, supra note 17; Current and Proposed Federal Policy on the Abatement of Aircraft Noise: Hearings Before the Subcomm. on Aviation of the House Comm. on Public Works and Transportation, 94th Cong, 1st & 2d Sess. (1976) [hereinafter cited as Federal Policy]; Oversight Hearings on the SST: Hearings Be- fore the Senate Comm. on Commerce, 94th Cong., 2d Sess. (1976) [hereinafter cited as Oversight Hearings]; Review of the Secretary of Transportation's Decision on the SST Concorde: A Joint Hearing Before Certain Subcommittees of the House Comm. on Government Operations and the House Comm. on International Relations, 94th Cong., 2d Sess. (1976) [hereinafter cited as Joint Review]. 23. William Coleman: Not Afraid to Decide, N.Y. Times, Feb. 1, 1976, § 3, at 1, col. 1. 24. Recently, some scientists have concluded that the Concorde's impact may be less significant than was believed in 1976. See Broderick, Stratospheric Effects from Aviation, 15 J. AIRCRAFT, 43-53 (1978). Such shifts in scientific thinking are not un- precedented. Between 1930 and 1970, scientists believed that atmosphric ozone levels were controlled by chemical reactions upon which the Concorde would have little effect. See CIAP REPORT, supra note 15, at C-30 to C-34. See also NATIONAL ACADEMY OF SCIENCES, ENVIRONMENTAL IMPACT OF STRATOSPHERIC FLIGHT 126- 134 (1975) [hereinafter cited as NAS REPORT]. Because this article is concerned 19781 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW exhausts remain in the atmosphere for several years. 25 The exhaust product nitrogen oxide catalyzes the destruction of atmospheric ozone, 26 a process dhngerous to humans because ozone shields the earth from most of the sun's ultraviolet radiation (UVR) which causes non-melanoma, a disfiguring but seldom deadly skin cancer. 27 Moreover, the catalyzing action leaves nitrogen oxides unharmed and able to renew catalysis. 28 Thus, small amounts of nitrogen oxide can destroy a great deal of ozone, allowing more ultraviolet radiation to reach the surface of the earth and cause additional skin cancer. The measurements of the Concorde's impact on the ozone used by decisionmakers, however, were inaccurate due to the in- adequacies of the mathematical model on which they were based. Scientists employed mathematical models to estimate the Con- corde's impact on the ozone because only very large amounts of ozone depletion can be measured directly. This is due to the dramatic variation in "overhead ozone" 29 measured by stations lo- cated on earth.30 Since only eight or ten independent mea- surements can be made each day, scientists are unable to conclude that any amount of ozone depletion has occurred unless average ozone measurements remain five or ten percent below normal for several years.31 Such changes would be costly; at least 25,000 Americans would contract skin cancer for each year that a five per- cent reduction continued while at least 50,000 additional skin can- cers would result in the United States for each year that a ten percent reduction continued.3 2 Unwilling to risk this catastrophic more with the decisionmaking process than with the relative benefits and dangers of the Concorde, no attempt will be made to analyze this most recent shift in scientific thinking. Rather, this article will focus on the beliefs of scientists in 1976 with re- spect to the Concorde's impact, and the ineffectiveness of the process by which their knowledge was communicated to Secretary Coleman. 25. FEIS, supra note 7, at VI-108; NAS REPORT, supra note 24, at 27. 26. NAS REPORT, supra note 24, at 183. 27. FEIS, supra note 7, at VI-115 to VI-116. The EIS also assessed the impact an expanded fleet of 40 Concordes would have upon the ozone. Id. at VI-124, VI-181. 28. NAS REPORT, supra note 24, at 129. 29. CIAP REPORT, supra note 15, at 25; FEIS, supra note 7, at VI-112. 30. ClAP REPORT, supra note 15, at 71. Inadvertent Modification, supra note 15, at 74; NAS REPORT, supra note 24, at 176. 31. Pittock, Ozone Climatology, Trends and the Monitoring Problem in INTER- NATIONAL CONFERENCE ON STRUCTURE, COMPOSITION, AND GENERAL CIRCULA- TION OF THE UPPER AND LOWER ATMOSPHERE AND POSSIBLE ANTHROGENIC PER- TURBATIONS PROCEEDINGS 455-66 (1974). 32. These numbers were calculated by following ozone modelling steps three and four, which are described below.2 See text accompanying notes 56-76 infra. [5: 156 The Concorde Decision result, scientists resorted to models to determine the Concorde's impact on the ozone. As a first step in model building, EIS scientists estimated the yearly Concorde emission of nitrogen oxide to be 4.5 X 109 grams. 33 This figure is derived from Equation Two. 34 S = (E x R) x (T x N) x 365 where: S = Concorde emissions of nitrogen oxide = 4.5 X 109 grams/year. E = Emissions Index = Amount of nitrogen oxide omitted Amount of fuel burned = 18 grams of nitrogen oxide/kilogram of fuel burned. 3 5 R = Rate of fuel consumption by each aircraft = 19,000 kilograms/hour. T = Daily time that each Concorde operates = 6 hours/day. N = Number of Concordes operating to the United States = 6. D = Days in a year = 365 days. Equation Two Due to possible errors in estimating the Emissions Index, how- ever, nitrogen oxide emissions might be much larger than was cal- culated. The Emissions Index was determined by sampling the exhaust products of a Concorde engine operated in simulated at- mospheric conditions. 36 During CIAP, however, researchers discov- ered that a different experimental technique yielded an Emissions Index value three to five times larger than did the technique used in fixing the Concorde's Emissions Index at eighteen. 37 Currently no one knows which Emissions value is correct. By assuming the 33. FEIS, supra note 7, at VI-120. 34. NAS REPORT, supra not 24, at 135. 35. FEIS, supra note 7, at VI-119. 36. CLIMATIC IMPACT ASSESSMENT PROGRAM, U.S. DEP'T OF TRANSPORTATION, MONOGRAPH 2: PROPULSION EFFLUENTS IN THE STRATOSPHERE 4-3 to 4-9 (1975) [herenafter cited as ClAP MONOGRAPH 2]. 37. CIAP REPORT, supra note 15, at D-90; EIS ADDENDUM, supra note 12, at 37; see FAA Certification, supra note 17, at 74 (statement of Dr. Harold S. Johnston). 1978] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW index to be eighteen, the EIS discounted the likelihood of other values. The ultimate decision was therefore based on a potentially less accurate estimate of nitrogen oxide emissions than might have been obtained by the use of decision analysis techniques, since the latter would have quantified the uncertainty factor which stemmed from the divergent experimental results. Uncertainty also weakens the EIS calculation of ozone depletion which would be caused by the Concorde. After determining the Emissions Index value, EIS researchers used CIAP procedures to calculate that ozone depletion would total 0.04%.38 Another calcu- lation, based upon the National Academy of Science (NAS) critique of CIAP, 39 indicated that at the estimated level of Concorde emis- sions, ozone depletion might total 0.06%.4 0 Due to uncertainty about the accuracy of their estimates, CIAP researchers admitted that actual damages might be one-half as large or twice as great as their models predicted. 41 The more skeptical NAS scientists thought actual damages could be one-third as much or three times as large as predicted by their models. 42 Although the EIS reported both uncertainty estimates, the probability that actual damages might equal these higher predictions was never factored into its analysis of the Concorde's impact. 43 Inaccuracies likewise permeate the two-step method for estimat- ing the rate of increase in skin cancer incidence at the expected level of ozone depletion. First, experts calculated that the rate of increase in exposure to damaging ultraviolet radiation would be twice the amount of ozone depletion. 44 Next, they estimated that the rate of increased skin cancer incidence would equal the rate of increase in exposure to damaging ultraviolet radiation. 45 Thus, a 0.04% ozone depletion was expected to cause a 0.08% rise in skin cancer incidence; a 0.06% depletion was predicted to produce an increase of 0. 12%.46 The experts' conclusions regarding the linkages between ozone 38. FEIS, supra note 7, at VI-120. 39. NAS REPORT, supra note 24, at 33. 40. FEIS, supra note 7, at VI-120. 41. ClAP REPORT, supra note 15, at E-13. 42. NAS REPORT, supra note 24, at 29. 43. See text accompanying note 76 supra. 44. ClAP REPORT, supra note 15, at 37; Inadvertent Modification, supra note 15, at 74-75; NAS REPORT, supra note 24, at 176. 45. ClAP REPORT, supra note 15, at 37; Inadvertent Modification, supra note 15, at 74. 46. FEIS, supra note 7, at VI-120. [5: 156 The Concorde Decision depletion and UVR exposure, and between UVR exposure and skin cancer incidence suffered from uncertainty due to incomplete knowledge about some of the factors affecting those linkages. A preliminary problem was that the different effect of ozone deple- tion on each type of ultraviolet radiation made the determination of a relationship between ozone depletion and changes in ultraviolet exposure difficult. 47 Under the model for quantifying the overall change in ultraviolet exposure due to ozone depletion, scientists first quantified the present amount of ultraviolet exposure by av- eraging exposure to each type of ultraviolet radiation according to its skin cancer inducing ability. 48 Next, scientists determined how ozone depletion would affect each type of ultraviolet radiation. 49 A new level of ultraviolet exposure was estimated by averaging the new exposures to each type of ultraviolet radiation according to its skin cancer inducing ability. Finally, the change in ultraviolet ex- posure was calculated by subtracting the present amount of ul- traviolet exposure from the new.50 To demonstrate the procedure, suppose that there are only two types of ultraviolet exposures, B and C. Assume further that ten units of B, which shows twice the ability to induce skin cancer as C, fall on a study city. Five units of C, which shows unit ability to induce skin cancer, also fall on the study city. If ozone is depleted, the study city will be exposed to fifteen units of B and fifteen units of C. UVR2, the new level of ultraviolet exposure; UVRI, the pres- ent amount of ultraviolet exposure; and AUVR, the increase in ultraviolet exposure, can be calculated as follows: UVR2 = (15 x 2) + (15 x 1) =45 UVRi = (10 x 2) + (5 x 1) =25 AUVR = UVR2 - UVRI = 20 The reliability of this research is doubtful, however, because data showing the skin cancer inducing ability of various ultraviolet radia- 47. CIAP REPORT, supra note 15, at G-20; NAS REPORT, supra note 24, at 173. 48. CLIMATIC IMPACT ASSESSMENT PROGRAM, MONOGRAPH 5: IMPACT OF CLI- MATIC CHANGES ON THE BIOSPHERE, PT. 1 1-7 [hereinafter cited as CIAP MONO- GRAPH 5 ]; Inadvertent Modification, supra note 15, at 66; NAS REPORT, supra note 24, at 184-91; F. Urbach, CLIMATIC IMPACT ASSESSMENT PROGRAM, U.S. DEP'T OF TRANSPORTATION, THIRD CONFERENCE OF CIAP 523-525 (1974) [hereinafter cited as URBACH STUDY]. 49. CIAP MONOGRAPH 5, supra note 48, at 2-27 to 2-32; NAS REPORT, supra note 24, at 171-76. 50. URBACH STUDY, supra note 48, at 532. 1978] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW tions have never been gathered.5 1 Researchers therefore assumed that the cancer inducing ability of each type of ultraviolet radiation equalled its mean sunburning ability as measured in a number of experiments. 52 This assumption, however, was only "reasonably well established." 53 Furthermore, experiments reported different measurements for ultraviolet radiation's sunburning ability. 54 Al- though the CIAP study discussed these possibilities,5 5 the EIS made no mention of the scientists' uncertainty, but assumed the accuracy of the underlying assumption. The second phase of the research, predicting the causal relation- ship between the Concorde's effect on the ozone layer and an in- crease in skin cancer, was also accomplished with unreliable data.56 In making this prediction, scientists sought a precise correlation between the rate of increase in skin cancer incidence and the rate of increase in exposure to damaging ultraviolet radiation. To de- termine the value of A, ultraviolet radiation's ability to induce skin cancer, 57 they set up Equation Three. A = ACA UVR _ CA2 - CA, × UVR1 CA AUVR CA1 UVR2 - UVR1 ACA where: CA=-Rate of increase in skin cancer incidence CA2 - CA1 CA1 CA1 = Skin cancer incidence in setting 1. CA2 = Skin cancer incidence in setting 2. AUVR _____ = Rate of increase in ultraviolet exposure UVR _ UVR2 - UVR, UVR, 51. CIAP MONOGRAPH 5, supra note 48, at 1-21. 52. CIAP REPORT, supra note 15, at 28; Inadvertent Modification, supra note 15, at 66; NAS REPORT, supra note 24, at 190. 53. CIAP MONOGRAPH 5, supra note 48, at 1-21. 54. CIAP REPORT, supra note 15, at 30; NAS REPORT, supra note 24, at 189. 55. CIAP MONOGRAPH 5, supra note 48, at 1-7 and 9-11. 56. Id. at 1-14; Inadvertent Modification, supra note 15, at 70; NAS REPORT, supra note 24, at 37. 57. URBAC / STUDY, supra note 48, at 523; CIAP MONOGRAPH 5, supra note 48, at 7-54. 1 [5: 156 The Concorde Decision UVRI = Amount of ultraviolet exposure exceeding a safe threshold in setting 1. UVR2 = Amount of ultraviolet exposure exceeding a safe threshold in setting 2. Equation Three The occurrence of ozone in the atmosphere provided the means for appraising A. 58 Since the amount of atmospheric ozone de- clines nearer the equator, causing Americans living in the South to be exposed to more ultraviolet radiation than Northerners, 59 A was determined by comparing the exposures and cancer incidence for people living in Iowa, San Francisco, Dallas and Minneapolis. 6" The results noted at the outset of this section were obtained. 61 Then, scientists calculated the rate of increase in skin cancer inci- dence for any change in the rate of ultraviolet exposure by re- arranging Equation Three to obtain Equation Four. ACA AUVR CA UVR Equation Four CIAP scientists doubted the accuracy 62 of these predictions for three reasons. First, the experts ignored the fact that fairer skinned people were more susceptible to skin cancer, 63 and failed to ac- count for the skin color differences between the populations of the study cities. 64 Thus, they probably underestimated the Concorde's impact oni the incidence of skin cancer. Second, the equation is unreliable because of the unproved as- sumption employed by scientists to determine the value of A; sci- 58. Laboratory experiments inducing human skin cancer, the most efficacious means of appraising A, were impossible to perform. CIAP REPORT, supra note 15, at G-37; NAS REPORT, supra note 24, at 41. 59. CIAP REPORT, supra note 15, at 24; Inadvertent Modification, supra note 15, at 70; NAS REPORT, supra note 24, at 187. 60. CIAP MONOGRAPH 5, supra note 48, at 7-55 to 7-56, 9-8. 61. See text accompanying note 46 supra. 62. "[U]ntil much better data are available, all the numerical estimates (of changes in skin cancer incidence) must be treated as very preliminary and open to significant corrections as new information accumulates." CIAP MONOGRAPH 5, supra note 48, at 7-59. 63. NAS REPORT, supra note 24, at 175. 64. CIAP MONOGRAPH 5, supra note 48, at 9-11. 1978] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW entists assumed again that the skin cancer inducing ability of UVR equals its sunburning ability. 65 Moreover, the equation presumed without sufficient support that the actual exposure of study area residents to UVR is a proportionately varying function of the UVR falling on the city. 66 This fails to take into account the diminishing effect that clothing and time spent indoors have on UVR expo- sure. 67 The fourth step of the model, estimating the additional number of skin cancer cases suffered by Americans should the Concorde be permitted to operate, was accomplished by multiplying the antici- pated rate of increase in skin cancer incidence by present skin cancer incidence. 68 Secretary Coleman reported that skin cancer incidence in the United States totalled 250,000 cases per year.6 9 The EIS thus expected Americans to suffer 200 additional cases of skin cancer if the rate of increase in skin cancer incidence turned out to be 0.08%70 or 300 additional cases if it were 0.12%, although the Secretary neglected to discuss this latter possibility. Failure to ascertain accurately the present skin cancer incidence, however, resulted in an improbably low appraisal of Concorde- caused damages. To measure skin cancer incidence, scientists asked all doctors in a given study area to report how many skin cancers they diagnosed. 71 Since not every physician cooperated, experts agreed that the incidence of skin cancer in the United States was much greater than was reported by Secretary Coleman. 72 Esti- 65. NAS REPORT, supra note 24, at 183. 66. CIAP MONOGRAPH 5, supra note 48, at 7-54, 9-11. 67. Id. at 9-11; NAS REPORT, supra note 24, at 195; Inadvertent Modification of the Upper Atmosphere: Research and Development Relating to Halocarbons and Ozone Depletion; Hearings Before the Subcomm. on the Environment and the At- mosphere of the House Comm. on Science and Technology, 94th Cong., 1st Sess 34 (1975) (statement of Dr. Richard Setlow). 68. These calculations and hence, the predictions they yield, reflect the number of Concorde-induced cancers that would be contracted during any year when, after many years of continuous operations, the Concorde's impact became constant. FEIS, supra note 7, at VI-124. Actually, Secretary Coleman wanted to know how many skin cancers would result from the first year's operations. Since the former is much easier to calculate than the latter, id. at VI-130, however, and the two are ostensibly equal, EIS ADDENDUM, supra note 12, at 35, the EIS and CIAP focused on calculating the former. 69. SECRETARY'S DECISION, supra note 6, at 37. 70. Id. 71. See Scotto, Non-melanoma Skin Cancer Among Caucasians in Four Areas of the United States, 34 CANCER 1333 (1974). 72. NAS REPORT, supra note 24, at 192; Scotto, Non-melanoma Skin Cancer Among Caucasians in Four Area of the United States, 34 CANCER 1333, 1337 (1974). [5: 156 The Concorde Decision mates of the actual figures range from 300,00073 to 600,000 cases of skin cancer each year. 74 The EIS neither included these higher estimates nor explained the uncertainties inherent in the estimates it proferred. 7 5 The insufficiencies of EIS research hindered Coleman's de- cisionmaking. They prevented Coleman from learning the number of additional skin cancers that should have been factored into his decision as a cost of permitting the flights. 76 He did not learn that the EIS assumed the lowest possible values for three unknown vari- ables: the Concorde's emission index, ultraviolet radiation's abil- ity to induce skin cancer, and the incidence of skin cancer in the United States. Had the EIS listed the probabilities that higher val- ues for these variables might be accurate, Secretary Coleman may have considered that the actual damages would be greater than those posited by the EIS. 2. Noise Damage A second negative consequence of the Concorde is noise pollu- tion. Annoying airport neighbors with its loud noise level is one aspect of this pollution; hearing damage is another. In assessing the annoyance impact, the EIS first measured the noise level to which airport community residents were exposed as well as the noise level to which they would be exposed if Concorde flights were instituted. These measurements were expressed in terms of the units of a well known noise exposure index, the Noise Expo- sure Forecast (NEF).77 Next, the EIS counted the number of 73. Inadvertent Modification of the Upper Atmosphere: Research and Development Relating to Halocarbons and Ozone Depletion: Hearings Before the Subcomm. on the Environment and the Atmosphere of the House Comm. on Science and Technol- ogy, 94th Cong., 1st Sess. 237 (1975) (statement of Frederick Urbach). 74. Fluorocarbons-Impact on Health and Environment: Hearings Before the Subcomm. on Public Health and Environment of the House Comm. on Interstate and Foreign Commerce, 93d Cong., 2d Sess. 16 (1974) (statement of T.M. Donahue). 75. FEIS, supra note 7, at VI-124. 76. NAS REPORT, supra note 24, at 301, 308. 77. Scientists calculate NEF as follows: Nd + 16.7 Nn N 1 oLoU-j NEF = 10 log, 0 88 N i=l 10 Equation 7 where: Nd = Number of airplanes heard only during the interval 7:00 A.M.- 10:00 P.M. 1978] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW people exposed to two levels of unacceptably high noise exposure, NEF thirty and forty, and determined the increase in this number should the Concorde operate. 78 This technique of measurement was represented as the "method ...in general use for assess[ing] the impact of airport noise," 79 and most decisional participants re- lied solely upon this difference in measuring the Concorde's noise impact.80 The results displayed in Table Two indicated that the Concorde's noise annoyance impact might be very slight. Three EIS failings, however, obscured the fact that the Concorde's impact on noise annoyance could be very serious. One such failing was the deficient standard of noise annoyance employed be EIS researchers. The EIS assumption that only those people exposed to NEF thirty and forty by the Concorde's noise for the first time would be hurt contradicts studies correlating an- noyance and noise exposure. These studies show that annoyance increases not only when people are exposed to NEF thirty and forty for the first time, but also when they experience any increase in noise exposure beyond the threshold of noise annoyance. 8' EIS predictions of how many more people would be harmed by the Concorde's operation were therefore too low because they did not Nn = Number of airplanes heard daily during the interval 10:00 P.M.-7:00 A.M. LOUD = Loudness of the ith aircraft heard in units of EPNdB. W. BURNS, NOISE AND MAN 404-413 (2d ed. 1973); 1 C. BARTELL, AIRPORT NOISE REDUCTION FORECAST, SUMMARY FOR 23 AIRPORTS 2-13 (1974). 78. The Concorde's noise may also induce building vibrations. FEIS, supra note 7, at VI-76; OFFICE OF NOISE ABATEMENT, U.S. DEP'T OF TRANSPORTATION, SOUND AND VIBRATION MEASUREMENTS FOR CONCORDE SUPERSONIC TRANSPORT AND SUB- SONIC JET AIRCRAFT (1974); TRANSPORTATION SYSTEMS CENTER, NOISE EMISSIONS AND BUILDING STRUCTURAL VIBRATION LEVELS FROM THE SUPERSONIC CONCORDE AND SUBSONIC TURBOJET AIRCRAFT (1975). While the Concorde induced several times more building vibrations than most other commercial planes, FEIS, supra note 7, at VI-29, it was not expected to cause structural damage. SECRETARY'S DECISION, supra note 6, at 43. It was expected, however, to cause minimal annoyance when hanging pictures and other objects rattled against vibrating walls. Id. 79. FEIS, supra note 7, at VI-154. The EIS also discussed the annoyance impact of enlarging the Concorde fleet to forty planes. Id. at VI-185, VI-188. 80. Id. at VI-154, VI-171. 81. W. BURNS, NOISE AND MAN 310 (2d ed. 1973); W. CONNOR, COMMUNITY REACTION TO AIRPORT NOISE (1971); W. CONNOR, COMMUNITY REACTION TO AIR- PORT NOISE AROUND SMALLER CITY AIRPORTS (1972); Stevens. A Community's Reaction to Noise: Can It Be Forecast? 1 NOISE CONTROL 63 (1955); see FEIS, supra note 7, at VI-50 to VI-61. [5: 156 The Concorde Decision consider those people already exposed to NEF thirty and forty who would experience an incremental increase in noise annoyance. Table Two: Number of People Exposed to NEF 30 and 40 With and Withouf the Proposed Concorde Operations Airport JFK Airport Dulles Airport NEF 30 NEF 40 NEF 30 NEF 40 Without Concorde 485,000 112,000 0-1,000 0 With Concorde 487,000 114,000 0-1,000 0 EIS noise annoyance analysis was further deficient in failing to calculate the Concorde's impact on people exposed to less than NEF thirty daily noise. Depending on the method they employ to measure community annoyance, scientists disagree on whether NEF twenty or thirty8 2 constitutes the threshold below which people can experience additional noise exposure without becoming increasingly annoyed. Rather than reporting these divergent opin- ions, however, the EIS selected NEF thirty as the threshold of noise annoyance. It thus failed to predict that the Concorde might harm about two million New Yorkers and a few thousand Virginians suffering daily airport noise exposure between NEF twenty and thirty.83 The EIS ostensibly excluded predictions based on lower 82. Community annoyance may be measured by observing the intensity of actions taken by airport neighbors to reduce airport noise. These actions include complain- ing to responsible authorities and commencing litigation. Community annoyance may also be measured by surveying airport neighbors to determine the extent to which the noise disturbs such activities as sleeping, television viewing, and talking. For an account detailing the development of these correlations, see BOLT, BERANAK & NEWMAN, INC., NOISE EXPOSURE FORECASTS: EVOLUTION, EVALUATION, EXTEN- SION AND LAND USE INTERPRETATIONS (1970). See.also W. BURNS, NOISE AND MAN (2d ed. 1973); K. KRYTER, THE EFFECTS OF NOISE ON MAN (1970). 83. The population exposed to NEF was calculated by assuming that the area exposed to NEF 20 or more was as densely populated as the area exposed to NEF 30 or more. Generally, the area exposed to NEF 20 was 5.44 times as large as the area exposed to NEF 30. See FEIS, supra note 7, at VI-142. 1978] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW threshold estimates, despite a suggestion by the Council on En- vironmental Quality (CEQ) that such an omission be corrected, be- cause it feared that errors would be generated in "calculating NEF at greater distances" from an airport.84 Thus, the CEQ's claim that people could be harmed by noise at exposures lower than NEF thirty was discounted, although the EIS failed to disclose the na- ture and size of the potential errors, or explain why such calcula- tions would lack utility. A third shortcoming of the EIS was the absence of information concerning property value diminution caused by the expected in- crease in noise exposure. An FAA study85 available to EIS experts demonstrated that house values are reduced by about 0.5% for each additional NEF unit of exposure beyond NEF twenty.8 6 The damage or costs attributable to the Concorde could be calculated using Equation Five. Damages = DIM X N x HV X AE 100 where: DIM: = Diminution in housing value with increasing NEF, percentlNEF unit N = Number of houses impacted HV = Average house value, dollars AE = Additional noise exposure, NEF Equation Five Table Three shows the Concorde noise annoyance cost calculated for various property values and diminutions to Kennedy Airport neighbors already exposed to NEF twenty and thirty. The figures demonstrate that the cost of Concorde's flights to Kennedy Airport 84. FEIS, supra note 7, at VI-142. 85. J. NELSON, THE EFFECTS OF MOBILE SOURCE AIR AND NOISE POLLUTION ON RESIDENTIAL PROPERTY VALUES (1975). 86. Id. at 2-11. This result closely approximated those reported in other studies which estimated reductions in house values ranging between 0.4% and 2.0% per NEF unit increase in noise exposure. [5: 156 The Concorde Decision could be very large. Similar calculations for Dulles Airport were not attempted since, unlike Kennedy Airport, the average change in noise exposure resulting from the proposed Concorde operations has never been reported. Table Three: Estimated Property Value Diminution (Millions of Dollars) Caused by Concorde Operations at Kennedy Airporta Threshold of Noise Damage NEF 30 NEF 20 Average House Value (HV) DIM $20,000 $40,000 $60,000 $20,000 $40,000 $60,000 0.5% 3.84 7.68 11.5 20.8 41.6 62.4 1.0% 7.68 15.30 23.0 41.6 83.2 125.0 1.5% 11.50 23.00 34.5 62.4 125.0 187.0 2.0% 15.30 30.70 46.0 83.2 166.0 250.0 aln these calculations, the number of houses impacted was calculated by dividing the number of people presently exposed to NEF 20 and 30 by 3.8, by the average number of people residing in each household. W. SPERRY, NOISE SOURCE ABATEMENT TECHNOLOGY AND COST ANALYSIS INCLUDING RETROFITTING 4-5 (1973). Additional noise exposure for people exposed to NEF 20 was assumed to be 0.3 units, the same amount of additional exposure suffered by Kennedy Airport neighbors exposed to NEF 30. SECRETARY'S DECI- SION, supra note 6, at 47. The average property value for homes near Kennedy Airport was not investigated in the preparation of this study and remains only the subject of conjecture. No clear explanation for the EIS failure to supplement its predic- tions with property value diminution information has been given. During the January 5, 1976 hearing, Secretary Coleman received a detailed submission recommending the use of property value in- formation to assess the Concorde's noise annoyance costs. 87 In re- sponse to this, the EIS Addendum averred that "to date there has been no scientific research which correlates changes in NEF units, as distinguished from people or land area impacted within the NEF 40 and 30 contours, to 'environmental impact'."88 This statement is ambiguous at best. It may mean that property value diminution is an unacceptable proxy for "environmental damage." Alternatively, 87. The Impact of the Concorde SST on Residential Property Values in the Vicin- ity of Dulles International Airport, Memorandum Submitted for the Record by the Urban Institute of Washington (Jan. 5, 1976). 88. EIS ADDENDUM, supra note 12, at 5. 19781 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW it may mean that the studies cited above are not "scientific." Fi- nally, it may mean that the EIS authors were unaware of these studies; this is an unlikely possibility since many of these studies, including the one by the FAA, were cited in the submission re- ceived by Secretary Coleman. In any event, the failure of the EIS to take into account several of the factors contributing to the poten- tial cost of increased noise annoyance severely reduced its con- tribution to the rationality of the decision making process. In addition to annoyance, a second aspect of noise pollution gen- erated by the Concorde is permanent hearing damage. The final EIS discounted this potential harm as insignificant.8 9 The EIS analysis, however, was misleading in that it assumed that the Con- corde would be the only loud noise heard by airport neighbors. The risk of hearing damage is measured by summing the impact of different sounds heard in a day.90 Although the Concorde's noise alone does not exceed safe thresholds, many Americans are already exposed to dangerous levels of noise from other sources, 91 includ- ing non-Concorde airport operations. 92 Any of these people may suffer hearing damage when exposed to the Concorde's noise. Why the EIS neglected to consider the Concorde's impact on these sus- ceptible people is unknown. The EIS noise research would have been more complete and accurate had decision analysis been employed. Decision analysis would have forced scientists to analyze the reliability of available information, as well as report on the seriousness and likelihood of various impacts. Thus, the possibility that the Concorde would cause greater annoyance and hearing damage than was predicted, as well as property value diminution, would have been revealed to the decisionmakers. 89. FEIS, supra note 7, at VI-71 to VI-73. 90. U.S. ENVIRONMENTAL PROTECTION AGENCY, INFORMATION ON LEVELS OF ENVIRONMENTAL NOISE REQUISITE TO PROTECT PUBLIC HEALTH AND WELFARE WITH AN ADEQUATE MARGIN OF SAFETY C-11 (1974) [hereinafter cited as EPA LEVELS DOCUMENT]; Damage-risk Criteria for Hearing, in NOISE AND VIBRATION CONTROL 543 (L. Beranak ed. 1971) [hereinafter cited as Damage-risk Criteria for Hearing]. 91. NATIONAL BUREAU OF STANDARDS, THE SOCIAL IMPACT OF NOISE 7 (1971). See also EPA LEVELS DOCUMENT, supra note 90, at B-9. 92. W. BURNS, NOISE AND MAN 335 (2d ed. 1973); EPA LEVELS DOCUMENT, supra note 90, at B-2; NATIONAL BUREAU OF STANDARDS, THE SOCIAL IMPACT OF NOISE 8 (1971). The effects of aircraft noise upon hearing have been investigated in only one very limited study, which provided no information about the impact on people exposed to high levels of noise by non-aircraft sounds. J. PARNELL, EVALUA- TION OF HEARING LEVELS OF RESIDENTS LIVING NEAR A MAJOR AIRPORT (1972). [5: 156 The Concorde Decision D. Benefits of a Decision Allowing the Concorde to Land To be balanced against the costs described above are the diverse benefits which accrue from allowing the Concorde to land in the United States. For example, a favorable decision would avoid British and French antipathy towards the United States. Banning the Concorde from the lucrative North Atlantic routes would have sparked such resentment, 93 for the two governments had invested prestige and three billion dollars 94 in the Concorde design proj- ect.95 Secretary of State Kissinger assessed the benefits of avoiding international resentment in a two-page letter to Coleman, 96 who subsequently relied on this assessment in his decisionmaking. 97 A second benefit derived from the Concorde is reduced travel time. The Concorde saves four hours98 en route between Europe and the United States, thereby shortening the flight for travelers99 as well as reducing the jet lag caused by longer flight times. 100 As shown by Table Four, Concorde passengers pay increased costs for this service, which reduces the net utility of their travel time sav- ings. Unfortunately, no decisionmaking record estimating the value of the time travel reduction exists. The absence of this documenta- tion prevented Secretary Coleman from balancing the range and probability of possible benefit levels,' 0 ' although he did consider 93. SECRETARY'S DECISION, supra note 6, at 54. Coleman also suggested that the United States, by permitting the Concorde to land, would obey its treaty obligations and thus avoid the cost of becoming an international outlaw. Id. at 9. Apparently, however, the United States was not obligated to permit Concorde landings. Memorandum on Legal Issues, Monroe Leigh, Dep't of State (Jan. 13, 1976). 94. SECRETARY'S DECISION, supra note 6, at 54. 95. The Concorde design project was conceived to aid British and French aircraft manufacturers to achieve parity with their American competitors. The Concorde ef- fort has proven abortive in this respect. To date, only nine have been sold, five to British Airways and four to Air France. A. WILSON, THE CONCORDE FIASCO 9 (1973). Much has been written about the Concorde's history. See J. COSTELLO & T. HUGHES, THE CONCORDE CONSPIRACY (1976); J. DAVIS, THE CONCORDE AFFAIR (1969); G. KNIGHT, CONCORDE: THE INSIDE STORY (1976); Gillman, Supersonic Bust, THE ATLANTIC MONTHLY, Jan. 1977, at 72. 96. See FAA Certification, supra note 17, at 375 (statement of William Randall). 97. SECRETARY'S DECISION, supra note 6, at 59. 98. AIR FRANCE, CONCORDE: A NEW WORLD OF FLYING (1976). 99. SECRETARY'S DECISION, supra note 6, at 51; U.S. Dep't of Transportation, Public Hearings on Applications of Air France and British Airways to Operate Con- corde Aircraft in Limited Commercial Service to New York and Washington 43 (1976). 100. Gerathewohl, Simple Calculator for Determining the Physiological Rest Periad after Jet Flights Involving Time Zone Shifts, 45 AEROSPACE MEDICINE 449 (1974). 101. SECRETARY'S DECISION, supra note 6, at 59. 19781 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW the increased trade, commerce and cultural exchange which would result from supersonic flights. 102 Consideration of these remote time-savings benefits, however, was inconsistent with the deci- sional approach used for evaluating environmental harm, since the Secretary ignored remote costs which might ensue from the ozone depletion or noise pollution caused by the Concorde. Table Four: Concorde and Other Roundtrip Fares Routes New York- New York- Washington- Washington- Ticket Type Londona Parisb Londonc Parisd Concorde $1694 $1796 $1788 $1890 First Class $1406 $1508 $1484 $1586 Coach $626 650 $680 $704 Excursion $309-$499 $310-$546 $524-$543 $565-$590 Standby $279 $283 a THE REUBEN H. DONNELLY CORPORATION, OFFICIAL AIRLINE GUIDELINES, WORLD WIDE EDITION 734 (Dec. 1978). b Id. at 1025. c Id. at 744. d Id. at 1030. A further benefit expected from the sixteen-month testing pro- gram approved by Coleman was new data on the demand for super- sonic airplanes and the environmental threat they would pose.' 0 3 This information would aid the final decisionmakers. Secretary Cole- man was unaware, however, that due to the inadequacy of the tests, the value of the testing program might be much less than was anticipated. The first goal of the testing program was to measure the demand among American consumers for supersonic airplanes; this task was frustrated due to insufficient data. 10 4 Economic theory indicates that this information should have been gathered by determining how many Americans would pay at varying rates for Concorde serv- ices, 10 5 yet no reports on the number of Americans flying the Con- 102. Id. at 51. 103. SECRETARY'S DECISION, supra note 6, at 60-61. 104. Id. at 52. 105. The benefit offered to American consumers by supersonic flight would then [5: 156 The Concorde Decision corde have been made. Moreover, the Concorde's fares have re- mained nearly constant during the testing program. 106 Likewise, the testing program's efforts to gather information on the effect of continuing Concorde operations on noise pollution are seriously incomplete. 107 Scientists installed noise measuring equip- ment near Dulles'0 and Kennedy Airports, 10 9 and they also estab- lished centers for receiving complaints about the Concorde's noise. 110 The measurements are of limited utility, however, because no ex- periments have been performed to determine the extent of Concorde-caused hearing damage either to airport neighborhood or more remote residents. Moreover, the standards by which the Concorde's noise impact have been measured are not accurate. Sci- entists judging the impact of the Concorde by the number of com- plaints received during the first year of operations at Dulles Air- port1 ' failed to consider that airport neighbors were temporarily sensitized to the Concorde's noise due to publicity." 2 The program's efforts to test the Concorde's impact on the ozone proved to be shortlived and therefore unhelpful.113 Secretary Cole- man at first strove towards international cooperation in the compi- lation of information and asked the President of the United States be calculated by totalling the prices Americans riding the SST were willing to pay less the cost of their fares. See UNCERTAIN SEARCH, supra note 1, at 103-09. 106. Since initiating Concorde service, the operators have only raised fares from their original prices which were as follows: Washington-London, $1602, THE REU- BEN H. DONNELLY CORPORATION, OFFICIAL AIRLINE GUIDELINES, WORLD WIDE EDITION 569 (1976); Washington-Paris, $1654, id. at 784; New York-London, $1586, THE REUBEN H. DONNELLY CORPORATION, OFFICIAL AIRLINE GUIDELINES, WORLD WIDE EDITION 1287 (Mar. 1978); New York-Paris, $1642, id. at 926. 107. SECRETARY'S DECISION, supra note 6, at 58. 108. See FEDERAL AVIATION ADMINISTRATION, DEP'T OF TRANSPORTATION, CONCORDE MONITORING SUMMARY REPORT: DULLES INTERNATIONAL AIRPORT 15 (1977) [hereinafter cited as DULLES TESTING SUMMARY]. 109. See FEDERAL AVIATION ADMINISTRATION, DEP'T OF TRANSPORTATION, CONCORDE MONITORING SUMMARY REPORT: DULLES INTERNATIONAL AIRPORT 15 (1977). 110. Id. at 32. DULLES TESTING SUMMARY, supra note 108, at 98. 111. During the first year of Concorde operations at Dulles, twenty times as many complaints were received concerning Concorde's noise as had previously been re- ceived about all aircraft noise in any typical year. See DULLES TESTING SUMMARY, supra note 108, at 100; FEDERAL AVIATION ADMINISTRATION, DEP'T OF TRANS- PORTATION, CONCORDE MONITORING: SIX MONTHS' SUMMARY REPORT 27 (1976). 112. A similar comparison for Kennedy Airport is impossible because of the un- availability of data regarding complaints previously received. FEIS, supra note 7, at X-37. 113. SECRETARY'S DECISION, supra note 6, at 58. 1978] COLUMBIA JOURNAL OF ENVIRONMENTAL LAW to instruct the Secretary of State to "enter into immediate negotia- tions with France and Great Britain so that an agreement that [would] establish a monitoring system for measuring ozone levels in the [atmosphere could] be concluded among the three countries in three months." 114 Data obtained from this monitoring effort were to be made public every six months. 115 The impossibility of measuring the Concorde's impact on the ozone, 116 coupled with failure to implement the proposed ozone monitoring system, has thwarted this goal. The agreement which was concluded between Britain, France and the United States pro- vided only that the -parties would "cooperate towards the estab- lishment of a strengthened global ozone monitoring capability." 117 Thus far, the semiannual reports have outlined only actions towards gaining greater understanding of the ozone depletion problem 118 and have failed to provide the monitoring data desired by Secretary Coleman. Decision analysis would have avoided two shortcomings of the present benefits analysis. First, decision analysis would have yielded estimates of the benefits of the Concorde's travel time sav- ings. If such estimates were premised upon bases that were incon- sistent with those used in assessing the Concorde's impact, the rigorous format of decision analysis would have permitted one of the Concorde's critics to discover and report this fact to the Secre- tary. Second, scientists could have submitted a more accurate pres- entation of the benefits of operating the testing program if they had used the decision analysis procedures demonstrated at the outset of this article. 119 Notably, however, decision analysis would not have helped Coleman better assess the foreign relations benefit, which escapes precise quantification. 120 114. Id. at 5. 115. Id. 116. See text accompanying notes 29-32 supra. 117. W. Long, U.S. Dep't of State, Press Release No. 222, United States, Great Britain and France Sign Stratospheric Monitoring Agreement (May 5, 1976). 118. See U.S. DEP'T OF STATE, ACTIONS IN THE UNITED STATES OF AMERICA RELATED TO STRATOSPHERIC MONITORING, FIRST SEMIANNUAL REPORT TO THE SECRETARY OF TRANSPORTATION (1976); U.S. DEP'T OF STATE, ACTIONS IN THE UNITED STATES OF AMERICA RELATED TO STRATOSPHERIC MONITORING, SECOND SEMIANNUAL REPORT TO THE SECRETARY OF TRANSPORATION (1978). 119. See text pages 157-62 supra. 120. SECRETARY'S DECISION, supra note 6, at 59. [5: 156 The Concorde Decision IV. IMPLEMENTATION OF DECISION ANALYSIS The National Environmental Policy Act of 1969 (NEPA)121 man- dates that each governmental agency assess the impact of its major actions "significantly affecting the quality of the human environ- ment."' 122 Council on Envirnmental Quality guidelines l2 3 suggest that this process be initidted with the preparation of a draft EIS discussing the environmental impact of the proposed action, re- sponsible opposing views, 124 and available alternatives to the pro- posed action.125 Other agencies and the public are then afforded an opportunity to comment on the draft EIS, 126 after which the final EIS is prepared. Only after a decision is made may federal courts enjoin proposed agency action pending preparation of a more de- tailed EIS. 127 Decision analysis could be applied to the present decision-mak- ing process with only slight modification of these procedures. In the revised system, agency experts would be required to prepare a decision analysis for inclusion in the draft EIS. The agency would then hear comments about the accuracy of the analysis, which would be revised and incorporated into the final EIS. Should the final EIS be found inadequate, a federal court could enjoin further agency action pending the preparation of a sufficiently detailed de- cision analysis. Specific criteria should govern the court's decision on the ade- quacy of a decision analysis. Each EIS should include results compiled for effective future use by the ultimate decision makers. Requiring the EIS to depict the decision tree and list the relation- ships therein considered will encourage thoroughness. In addition, an EIS should identify the analysis participants, their qualifica- tions, and the estimates that each expert prepares. The court should hear evidence concerning the exclusion from decision analysis of important considerations or experts. 121. 42 U.S.C. §§ 4331-4347 (1970). 122. National Environmental Policy Act of 1969, § 1 02 (2)(c), 42 U.S.C. § 4332(2) (c) (1970). 123. Preparation of Environmental Impact Statements: Guidelines, 40 C.F.R. §§ 1500.1-14 (1977). 124. Id. § 1500.7. 125. Id. § 1500.8 (4). 126. Id. § 1500.7. 127. F. ANDERSON, N.E.P.A. IN THE COURTS: A LEGAL ANALYSIS OF THE NA- TIONAL ENVIRONMENTAL POLICY ACT 239 (1973). 19781 COLUMBIA JOURNAL OF ENVIRONMENTAL LAW Implementation of this proposal would not be prohibitively ex- pensive. Extensive additional research is not required; rather, sci- entists need simply review present knowledge, as they currently do in preparing the EIS,' 28 and then summarize its import using deci- sion analysis. The additional expense is small when compared with either the value of avoiding incorrect decisions, or the present en- vironmental assessment costs, which total about one-percent of some agency budgets. 129 Judges should be aware of this expense, however, and vary their adequacy standards according to the im- portance of the decision, as they usually do in judging the suffi- ciency of an EIS.130 C. NEPA's Possible Mandate for Implementing Decision Analysis Having just outlined the contention that decision analysis could be adapted to present decisionmaking procedures, this article will now examine the suggestion that sections 102(2) (A) and 102(2) (B) of the National Environmental Policy Act of 1969 (NEPA) can be interpreted to require agencies to implement decision analysis. These provisions: [A]uthorize and direct that: to the fullest extent possible . . . all agencies of the Federal Government shall: (A) Utilize a systematic, interdisciplinary approach which will in- sure the integrated use of the natural sciences and the environ- mental design arts in planning and in decision making which may have an impact on man's environment; (B) Identify and develop methods and procedures, in consulta- tion with the Council on Environmental Quality established by Title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and tech- nical consideration. 131 128. See text accompanying notes 121-26 supra. 129. Council on Environmental Quality, Environmental Quality, Sixth Annual Report 637 (1975). 130. Id. at 210, 219; Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972);nvironmental Defense Fund, Inc. v. Corps of Engineers, 325 F. Supp. 728, 758 (E.D. Ark. 1970-71). Thus, the "rule[s] of reason" that cur- rently allow agencies to avoid discussing alternatives or impacts that are merely re- mote and speculative possiblities, F. ANDERSON, N.E.P.A. IN THE CoURTS 221 (1973), would be extended to permit agencies to avoid preparing decision analyses that analyze the impact of environmental harms that are only remotely possible. 131. National Environmental Policy Act of 1969, § 102(2), 42 U.S.C. § 4322 (2)(c) (1970). [5: 156 1978] The Concorde Decision The legislative history of NEPA and subsequent case law de- velopment support the contention that these provisions require the use of decision analysis. Participants in the hearings preceding NEPA's passage acknowledged that future environmental decision- making entailed balancing environmental considerations against other concerns. 132 Many witnesses advocated the use of systems analysis for this balancing process, 133 a decisionmaking methodol- ogy that comprehends decision analysis techniques.134 In response, several Congressmen endorsed the use of systems analysis, 135 and one 1966 committee report recommended its implementation. 136 Hearing participants recognized, however, that widespread use 132. Joint House-Senate Colloquium to Discuss a National Policy for the Envi- ronment: Hearings Before the Senate Comm. on Interior and Insular Affairs and the House Comm. on Science and Astronautics, 90th Cong., 2d Sess. 16 (1968) [hereinaf- ter cited as Joint Committee Hearings] (statement of U.S. Secy. of the Interior Stewart Udall); id. at 20 (statement of U.S. Secy. of Housing and Urban Develop- ment Robert C. Weaver); id. at 46 (statement of Dr. Donald F. Hornig); id. at 49 (statement of Laurance S. Rockefeller); id. at 152 (communication from Harvey Brooks); National Environmental Policy, Hearings on S. 1075, S. 237 and S. 1752 Before the Senate Comm. on Interior and Insular Affairs, 91st Cong., 1st Sess. 32 (1969) [hereinafter cited as Senate Committee Hearings] (statement of Sen. Henry Jackson); Environmental Quality, Hearings on H.R. 6750, H.R. 11886, H.R. 11942, H.R. 12077, H.R. 12180, H.R. 12207, H.R. 12209, H.R. 12228, H.R. 12264, H.R. 12409 Before the Subcomm. on Fisheries and Wildlife Conservation of the House Comm. on Merchant Marine and Fisheries, 91st Cong., 1st Sess. 18 (1969) [hereinafter cited as House Committee Hearings] (statement of Stewart L. Udall); id. at 26 (statement of Rep. John D. Dingell). See also Subcomm. on Science, Research and Development of the House Comm. on Science and Astronautics, 90th Cong., 2d Sess., Managing the Environment (Comm. Print 1969) [hereinafter cited as House Committee Report]. 133. THE ADEQUACY OF TECHNOLOGY FOR POLLUTION ABATEMENT, 89th Cong., 2d Sess. 106 (1966) (statement of John W. Tukey); id. at 241 (statement of William E. Warne); id. at 269 (statement of Dr. Walter R. Hibbard, Jr.); id. at 395 (statement of John 0. Logan); id. at 832 (communication from Ray K. Linsley); Joint Committee Hearings, supra note 138, at 25 (statement of Ass't U.S. Secy. of Agriculture John A. Baker); id. at 52 (statement of U.S. Secy. of Housing and Urban Development Robert C. Weaver); id. at 188 (communication from John S. Lagarius); House Committee Hearings, supra note 138, at 45, 472 (statement of Dr. John Cairns, Jr.); id. at 187 (statement of Carlos Fellerolf, Jr.); id. at 328 (statement of David M. Gates); id. at 417 (statement of Harold P. Konig), 134. G. FISHER, COST CONSIDERATIONS IN SYSTEMS ANALYSIS (1971); A. Madansky, UNCERTAINTY IN SYSTEMS ANALYSIS AND POLICY PLANNING, 81-96 (W. Boucher & E. Quade eds. 1968). For additional descriptions of systems analysis techniques, see H.A. HOVEY, THE PLANNING-PROGRAMMING-BUDGETING APPROACH TO GOVERNMENT DECISIONMAKING (1968); PROGRAM BUDGETING (2d ed. D. Novick 1967). 135. House Committee Hearings, supra note 132, at 57 (statement of Rep. John Dingell); id. at 329 (statement of Rep. Thomas M. Pelley). 136. House Committee Report, supra note 132, at 7, 49. COLUMBIA JOURNAL OF ENVIRONMENTAL LAW of systems analysis techniques was a long range goal. 137 Most such techniques require a great deal of data which was unavailable. For the present, therefore, hearing participants recommended ex- panded research by many professional groups, such as mathemati- cians, economists and social scientists. 138 They argued for the implementation of techniques which were highly reminiscent of decision analysis by proposing that scientists articulate their "best estimates about what is likely to result from decisionmaking," 139 "the margin of error"1 40 in estimated environmental impacts and "probabilities for success[ful" 14 1 environmental protection. Senator Henry Jackson's instrumental Senate Committee Report on Interior and Insular Affairs evidences Congressional intent that sections 102(2) (A) and 102(2) (B) be broadly interpreted. The re- port states: Wherever planning is done or decisions are made which may have an impact on the quality of man's environment, the respon- sible agency or agencies are directed to utilize to the fullest ex- tent possible a systematic, interdisciplinary team approach . . . draw[ing] upon the broadest possible range of social and natural scientific knowledge and design arts.... . . . [I]n the past, environmental factors have frequently been ignored . ..because of the difficulty of evaluating them in com- parison with economic and technical factors. . . .A vital requis- ite of environmental management is the development of 137. Joint Committee Hearings, supra note 132, at 36 (statement of U.S. Secy. of Health, Education and Welfare Wilbur J. Cohen); id. at 51 (statement of Dr. Donald F. Homig); id. at 52 (statement of U.S. Sec. of Housing and Urban Development Robert C. Weaver); id. at 68 (statement of Don K. Price); House Committee Hear- ings, supra note 132, at 101 (statement of C. R. Guttermuth); id. at 328 (statement of David M. Gates). See also House Committee Report, supra note 132, at 5. 138. Joint Committee Hearings, supra note 132, at 25 (statement of Ass't U.S. Secy. of Agriculture John A. Baker); id. at 37 (statement of Secy. of Health, Educa- tion and Welfare Wilbur J. Cohen); id. at 110; id. at 166 (communication from Jack W. Carlson); Senate Committee Hearings, supra note 132, at 36 (statement of Sen. Henry Jackson); House Committee Hearings, supra note 132, at 24 (Rep. Paul N. McCloskey, Jr.); id. at 50 (statement of Dr. John Cairns); id. at 267 (statement of Dr. Serge Korff); id. at 330 (statement of David M. Gates). See also House Committee Report, supra note 132, at 7. 139. Joint Committee Hearings, supra note 132, at 221 (statement of Gerald R. Tape). 140. House Committee Hearings, supra note 132, at 120 (statement of Lloyd Tup- ling). 141. SECRETARY'S DECISION, supra note 6, at 52. [5: 156 1978] The Concorde Decision adequate methodology for evaluating the full environmental im- pacts and full costs of Federal action. 142 Courts have interpreted NEPA as requiring the adoption of these proposals of the hearing participants. Sections 102(2) (A) and 102(2) (B) have been read to mandate a "systematic and finely tuned balancing," 143 a process in which agency decision makers must consult a wide variety of professionals.14 4 Recognizing that much relevant data may be uncertain or unavailable, however, 145 courts have not expected agencies to produce perfect knowledge. On the other hand, courts have required agencies to report all reasonably available information and, where possible, to quantify impacts. 146 Should courts read NEPA to require decision analysis, they would effect a compromise between the ultimate goal of imple- menting systems analysis and the present lack of knowledge, which 142. S. REP. No. 296, 91st Cong., 1st Sess. 20 (1969) (Report accompanying S. 1075). 143. Calvert Cliffs' Coordinating Comm. v. Atomic Energy Comm'n, 449 F.2d 1109, 1113 (D.C. Cir. 1971); Daly v. Volpe, 376 F. Supp. 987, 995 (W.D. Wash. 1974); First Nat'l. Bank v. Watson, 363 F. Supp. 466 (D.D.C. 1973); Movement Against Destruction v. Volpe, 361 F. Supp. 1360, 1388 (D. Md. 1973), aff'd, 500 F.2d 29 (4th Cir. 1974). 144. Hanley v. Kleindienst, 471 F.2d 823 (2d Cir. 1972), cert. den., 412 U.S. 908 (1973); Simmans v. Grant, 370 F. Supp. 5, 17-18 (S.D. Tex. 1974); Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916, 928 (N.D. Miss. 1972), aff'd, 492 F.2d 1123 (5th Cir. 1974). 145. Robinson v. Knebel, 550 F.2d 422 (8th Cir. 1977); Environmental Defense Fund, Inc. v. Corps of Engineers, 492 F.2d 1123, 1133 (5th Cir. 1974); Jicarella Apache Tribe v. Morton, 471 F.2d 1275, 1280 (9th Cir. 1973); State v. Corps of En- gineers, 411 F. Supp. 1261, 1268 (N.D. Ala. 1976); Natural Resources Defense Coun- cil, Inc. v. Callaway, 389 F. Supp. 1263 (D. Cenn. 1974), modified, 524 F.2d 79 (2d Cir. 1975); Environmental Defense Fund v. Tennessee Valley Authority, 371 F. Supp. 1004 (E.D. Tenn. 1973), aff'd, 492 F.2d 466 (6th Cir. 1974); Environmental Defense Fund, Inc. v. Corps of Engineers, 348 F. Supp. 916, 928 (N.D. Miss. 1972), aff'd, 492 F.2d 1123 (5th Cir. 1974). 146. Robinson v. Knebel, 550 F.2d 422, 426 (8th Cir. 1977); Hanley v. Klein- dienst, 471 F.2d 823 (2d Cir. 1972), cert. den., 412 U.S. 908 (1973); State v. Corps of Engineers, 411 F. Supp. 1261, 1268 (N.D. Ala. 1976); Daly v. Volpe, 376 F. Supp. 987, 955 (W.D. Wash. 1974), aff'd, 514 F.2d 1106 (9th Cir. 1975); Simmans v. Grant, 370 F. Supp. 5, 17-18 (S.D. Tex. 1974); Sierra Club v. Froehlke, 359 F. Supp. 1289, 1356 (S.D. Tex. 1973), modified, 499 F.2d 982 (5th Cir. 1974); Brooks v. Volpe, 350 F. Supp. 269, 278 (W.D. Wash. 1972), aff'd, 487 F.2d 1344 (9th Cir. 1973); City of New York v. United States, 337 F. Supp. 150 (E.D.N.Y. 1972); Environmental De- fense Fund v. Hardin, 325 F. Supp. 1401 (D.D.C. 1971); Environmental Defense Fund v. Corps of Engineers, 325 F. Supp. 749, 757 (E.D. Ark. 1971). COLUMBIA JOURNAL OF ENVIRONMENTAL LAW prevents the widespread use of other systems techniques. In ad- dition, the courts would thereby realize Congress's intention that diverse professions contribute information to the environmental assessment process. Decision analysis is, after all, within the pro- fessional province of mathematicians, economists, and business ad- ministrators. 147 V. CONCLUSION The process leading to the Concorde decision was exceptional, but was hampered by uncertainties and inaccuracies withheld from and ignored by decisionmakers. To improve the transfer of this im- portant information, agencies should employ decision analysis, a technique for using available knowledge to estimate the likelihood and seriousness of possible impacts of an environmental decision. Without this innovation, decisionmakers will continue to evaluate available information for themselves. There is no reason to believe they will better Secretary Coleman's effort, which ultimately failed to develop, disclose and analyze data essential to rational decision- making. Jon Anderson* * J.D. 1978, Yale University. 147. Preface to C. EMORY & P. NILAND, MAKING MANAGEMENT DECISIONS at V (1968); Preface to S. HYMANS, PROBABILITY THEORY at ix (1967); Preface to H. RAIFFA, R. SCHLAIFER, APPLIED STATISTICAL DECISION THEORY at vii (1961); Pre- face to R. SCHLAIFER, ANALYSIS OF DECISIONS UNDER UNCERTAINTY at v (1969); MANAGEMENT DECISION MAKING 7 (L. Welsch & R. Cyert eds. 1970). [5: 156