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CONGRESSIONAL
RESEARCH A
SERVICE

LIBRARY OF
CONGRESS

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NATIONAL ENVIBONHENTEL POLICY ACT: AN OVERVIEW OF CURRENT ISSUES

ISSUE BRIEF NUMBER IBBOOOH

AUTHOR:
Hughes, B . S teve

Environment and Natural Resources Policy Division

THE LIBRARY or concnzss
CONGRESSIONAL RESEARCH sznvxcn

HAJOR ISSUES S YSTEH

DATE ORIGINATED Qggggggg
DATE UPDATED gggggggg

FOR ADDITIONAL INFORMATION CALL 287-5700

0908

CRS- 1 IBBOOOH UPDATE-09/02/80

§§un nnnxgiriog

with the issuance of new regulations —— effective July 30, 1979 - by the
Council on Environmental Quality, the implementation of the National

iifinvironmental Policy Act of 1969 entered a.nev phase. The regulations were

developed primarily to improve the environmental impact statement process --

» with particular provisions aimed at reducing paperwork and delay - and to

enhance the use of impact statements in environmental decision-making.
Overall the new regulations are expected to standardize and consolidate
agencies‘ efforts in implementing environmental assessment procedures,

" thereby lessening the procedural uncertainty in reaching substantive

regulatory decisions, since impact assessments are noften required in
conjunction with the granting of permits and other actions under Federal

regulatory programs. This increased administrative simplicity is also  

expected to reduce the number of court challenges to agencies‘
environment—affecting activities, as a result of provisions in the
regulations for more timely and properly "scoped" environmental impact
statements.  

Initial assessments are not yet possible, but the on-going responses by
agencies -- and the second generation of court decisions -- will greatly

influence the future direction and effectiveness of this broad environmental

policy statute.

Congressional oversight of the new NBPA process, which is possible during
e 97th Congress, can serve an important monitoring and evaluation function

or this undertaking as well as of several longer-term issues regarding the 

Act's basic purposes and effects.

EAQEEBQE1!§-A§.2-;139.L.-l.§1..3N§.1-;Y5l§

IN TRO DUCT I OH

The National Environmental Policy Act of 1969 was enacted as P.L. 91-190
on Jan. 1, 1970, and is often referred to by the acronym "NEPA.“ The Act is
considered to be landmark legislation which "set the Nation on a new course
of environmental management" (H. Rept. 92-316). Its "action—forcing"
directives are meant. to ensure that environmental values are given
appropriate consideration in all programs of the "Federal Government. Its
policy declaration and its procedures for environmental impact assessment

: have also been adopted in many similar State laws.

The preparation of environmental impact statements has heightened

.' awareness of, and attention to, the environmental effects of actionsv by
’ Federal agencies while also increasing public participation; but the

requirements of the law have played a limited role in what decisions are
actually made, while at the same time spawning an enormous amount of
information-gathering and analysis activities which have been criticized by

s" porters as (substantively or scientifically) inadequate and by others as .
 too burdensome. (See below for a discussion of the distinctions between
‘ substantive and procedural requirements of environmental lass.)

Rhile there now seems to be increased agreement about the utility of

CES- 2 0 1380004 UPDATE-09102/80.

assessing the environmental consequences of najor Federal actions, the
prospects that the Council on Environmental Quality's regulations will
improve the previous procedures and lead to better decisions depend primari“

- on how individual agencies adapt their practices to the streamlined, bu-

rigorous, process for sore fully integrating the impact analyses with agency
plans and programs. (see discussions of the major innovations and of current
issues, below.)
SUHHARY OF HEPA STATUTORY PROVISIONS
':..'1.'.:-le....1.i

Sec§;gg_1Q1;_ flggl;gig§_and_§ga;§;2 The Congress declared: "it is the
continuing policy of the Federal Government...to create and maintain

aconditions under which man and nature can exist in productive harmony, and

fulfill the social, economic, and other requirements of present and future
generations of Americans. In order to carry out the ‘policy...it is the

wcontinuing responsibility of the Federal Government...to improve and

coordinate Federal plans, functions, programs, and resources“ to achieve six
broadly stated goals that address future environmental quality objectives,

;with the paramount concerns including "beneficial uses of the environment

without degradation, [or] risk to health or safety"; for preserving
"diversity" of natural, historic, and cultural heritages; for achieving a
"balance between population and resource use"; and for enhancing the "quality
of renewable resources and...maximum attainable recycling.”

Secti9n_1Qg;_ 2AQ2g£i§££§£;Qg:£ The Congress directed that, to tb
fullest extent possible, the laws of the United States shall be administered
in accordance with these policies, and further directed all Federal agencies

_%_to incorporate the policy and goals through information and methods for
  appropriate consideration of environmental values: by utilizing "a

systematic, interdisciplinary approach"' and by considering "presently

a unguantified environmental amenities and values."

§eeti911.,.. 19.2..(_2.uQ...:.- "Environmental. is-122.922- §.’£eiL?.!l§n:§; As an

;"action-forcing“ mechanism to carry out those policies and procedures, agency
officials are required to include a "detailed statement" of environmental

impact as part of "every recommendation or report on proposals for

elegislation and other major Federal actions significantly affecting the

quality of the human environment." This statement of environmental impact yis
to assess any "adverse environmental effects," and alternatives to ithe
proposed action, local short-tern uses of the environment in relation to
"long-term productivity," and "any irreversible and irretrievable commitments
of resources” involved. -

Prior to taking action, the responsible Federal official is to consult any
Federal agency with jurisdiction or special expertise on any environmental

 impacts and to make the "statement and the comments and views of the
diappropriate Federal, State, and local agencies" available to the President,

the Council on Environmental Quality, and the public.

other provisions of Section 102 (as amended) require Federal agencies t
separately develop alternative courses of actions for unresolved resource
conflicts; to "support...international cooperation [to prevent]...a decline
in the quality of mankind's world environment"; to provide advice and
information to other units of governments, institutions, and individuals; to
develop ecological information on resource-oriented projects, and to assist

*CEs— 3 IB8000u UPDATE-09/02/80
the Council on Environmental Quality. I

§ggt;9g_1Q;;_ figggiggqfi Section 103 requires agencies to “revieww their
resent statutory authority...for...any deficiencies...which prohibit full
-ompliance," while Sectionsw 10a and 105 affirm existing environmental

authorities, and supplement them with NEPA.
2itls-ll

Title II created in the Executive office of the President a three-member

Tcouncil on Environmental Quality to oversee the administration of national

environmental policy and to assist in the President's annual Environmental

Quality Report to the Congress. This report is to examine (1) the status and 1

condition of the natural environment; (2) trends in the quality, management,
and utilization of the environment, and their effects; (3) the adequacy of
natural resources; (a) a review of environmental programs and activities; and
(5) a program for remedying deficiencies, along with legislative
recommendations.

Another major duty of the Council is to advise and recommend policies to
the President. (The Council's authority to guide tne NEPA process --
including its new regulations -- has been supplemented by Executive Orders
1151a, 11991, and 1211a.) - V

SUHMABY OF HAJOB INNOVATIONS IN THE NEPA PROCESS 1

after seven year's experience with advisory guidelines issued by the

V uncil on Environmental Quality, the President's Environmental Hessage of_i

.,77 included an Executive Order authorizing the Council to issue binding
regulations for improving Federal agencies‘ compliance with REPA. The major

changes embodied in these regulations, which became effective July 30, ‘1979,.

are summarized below.
§2Q2sin9_2a2e;:2;£

Section 15oo.n of the new rules requires agencies to reduce excessive
paperwork by the use of 17 new procedural steps, including a limit on. the
length of environmental impact statements to 150 pages and forcing an
emphasis on identifying the significant environmental issues involved in a

iproposal or project. These results would be mainly accomplished by:

(a) preparing a series of related EIS's for related program actions --

E with a successive narrowing of scope so as to eliminate repetitive

discussions of issues and background data;

(b) integrating many NEDA requirements with other environmental review and
consultation requirements; »

(c) eliminating duplication with State and local EIS procedures -- through
joint preparation -- and at the. Federal level through the use of

environmental docuemnts by more than one agency; and

id) categorically excluding from NEPA compliance all actions identified in
agency procedures as not having significant environmental effects - which is

E intended to minimize future court challenges to these agency actions for lack

of an EIS.

CBS- 4 IB80004 UPDATE—0Q/02/80

Finally, the new regulations replace the ‘previous set of individual
agencies‘ regulations and apply uniformly throughout the Federal Government.

Beéusi29-De1e1p

Further, to reduce the time necessary for NEPA compliance, Section 1500.5

of CBQ's regulations contain 12 separate requirements designed to speed up '

the process. In addition to those previously mentioned paperwork-reducing
techniques that will save time, the-agencies are to:  

(a) use the EIS “scoping process" to integrate NEPA procedures
in early planning and to ensure interagency cooperation
at the EIS preparation stage, and to establish appropriate
time limits;  

(b) use accelerated procedures for EIS's on agency proposals
for legislation, i.e., draft statements only;

(c) combine environmental documents with other required
reports; and

(d) take steps to minimize~judicial review of EIS actions\until
the process is completed.

£1=.2<.1;n.<;iu9._l:e.t.1;er-1>..<-2<.=i§.i.22§,

In addition to less paperwork and more timely decisions, the Council on

Environmental Quality intends for its new rules for streamlined impact a
"’statements to improve the quality of environmental decision-making -- one or

NEP1's fundamental purposes. For those directly affected by NBPA actions,
the important changes are those that require better documentation of ihow
enviornmental factors are considered in the decision-making process. These
legal protections are based on existing’ adminstrative law land require
agencies to produce a "concise public record" of use of an EIS in decisions,
indicating which alternative(s) is preferable on environmental grounds. This

last aspect of NEPh's role in decisions -- recording and indicating‘

"environmentally preferable" actions -- is considered to be an improvement by
its uniform application of an approach that in the past was left to the
discretion of Federal officials. Further improvements (which reflect the

v_regulations' emphasis on the entire NEPA process, rather than a single
document) are provisions ensuring that environmentally protective mitigation

measures in an EIS be, in fact, implemented and monitored by an agency, plus
an explicit requirement that "accurate, professional documents" be prepared
according to NEPA's mandate for a "systematic, interdisciplinary approach."

?rom the, standpoint of participants in NEPA procedures, the major
innovation in the new rules is a "scoping process" for outlining and
coordinating the preparation of an EIS. According to the Council on

a Environmental Quality's Ninth Annual Report, it is also "a key procedure for

accomplishing [the other] goals" [of the regulations]. Usually, the scoping
process is to take the form of an open, interagency meeting to bring together
all parties with an interest in a proposal on which an EIS is to be prepared.

" In addition to its being an effort among Federal, State, and local agencie'

and members of the public to "achieve an early consensus” on the important

.issues and impacts to be analyzed, the scoping process is intended to
tdetermine BIS length, time for preparation, and how responsibility will be

shared among agencies. other major changes related to participation include
detailed requirements for public involvement throughout the NEPA process;

CRS- 5 IBSOOOH UPDATE‘09/02/80

safeguards against conflicts of interest in EIS-related assistance by

  contractors or applicants for Federal approvals; limitations on actions

affecting the environment during NEPA review; and detailed steps for
“esolving agencies‘ disagreements or the more formal "referrals" to CEQ over
controversial environmental actions.  

BRIEF OVERVIEW OF NEPA IMPLEHENTATION

2:- .I!;';1.?.1.l... 2.r.22e<.12.=;.a..l.- .13eg2ir.eien.t§- .t.2- .':§21.>§’2an_1=.i.\ze1'.

The National Environmental ggligy Act is not to be confused with the
substantive body of environmental pggtggtign laws, which address pollution
and resource problems ranging from air and water quality and noise and toxic
substances control to the various statutes related to resource development,
such as surface mining regulation, coastal zone and offshore management, or
other public land programs. In contrast, NEPA is a relatively short policy
declaration and impact assessment law that has been more associated with
"administrative reforms" within Federal agencies than with any particular
aspect of (physical) environmental protection. NEPA does not set standards
or establish a regulatory program as does the pollution control legislation.
Nonetheless, NEPA compliance is often required in connection with many of
those other laws -- that is, if the action is one which triggers the EIS
criterion of "significantly affecting the quality of the human yenvironment."
The new rules require impact statement preparation to be integrated as much
as possible with studies, surveys, and analyses under other Federal
environmental review laws - such as the Endangered Species Act, the Fish and

"ldlife Coordination act, the National Historic Preservation Act, and fort

hatef quality permits, as ‘well as the Executive Orders on ,Floodplain
Management and on Wetlands Protection. However, once an agency complies with
NEPA's information-based procedures, the Act's‘effect on ultimate decisions
is limited by the agency's other mandates. Thus, NEPA is distinct from --
although supplemental to -— the mission-oriented statutes and/or organic Acts
under which the agencies receive their operating authorities. Although a few
agencies such as the Environmental Protection Agency and the National. Park
Service have used NEPA as a basis for authority to take environmentally
enhancing actions, the Act remains essentially a policy statement with
"action-forcing" procedures to ensure that Federal officials are aware of,
and consider, the environmental consequences of their major decisions when
implementing the other laws within their juisdictions.

A somewhat separate issue relating to substantive environmental law is the
extent to which the HEPA policy goals in Section 101 impose any substantive
responsibilities on Federal agencies. After ten years of implementation and
judicial interpretation, this issue remains unresolved, although the Council
on Environmental Quality's regulations contain the implicit purpose of
achieving those substantive goals, and the Council's recent annual reports
conclude that the courts are increasingly recognizing "NBPA's substantive
standards." On the other hand, some commentators on the law -- noting that
courts have avoided the "elusive distinction between the Act's substantive
and procedural requirements," and the "absence of a single plaintiff's

“ victory in a ‘substantive NEPA case'" -- "argue that NEPA falls short of its

pl zntial, and perhaps its goals, because it fails explicitly to impose upon
Feueral agencies a legally enforceable directive to enhance and refrain
degrading the environment" (10 ELR 10039).

CRS— 6 IBBOOOH UPDATE-09/02/80

[Major court decisions involving the National Environmental Policy Act have

(1) held it to be a "full disclosure" law -- pertaining to Federal
agencies’ administrative records and information concerning impacts '-— for

s actions subject to the Act;

(2) required "strict.compliance" with the procedures —— entailing a unique

:‘ balancing analysis of the environmental costs and benefits of a proposed

action;

(3) ruled that the consideration of alternatives to the proposed action

is must be of a broad nature - and not necessarily confined to an agency's area

of statutory authority;

(4) further ruled that the alternatives and environmental consequences
must be given full consideration in decision-making (and subject to
Administrative Procedure Act compliance); A

(5) affirmed the long—standing practice of preparing A regional or

programmatic impact statements for related Federal actions, i.e.,
"comprehensive impact statements"; ‘

(6) supplemented the public participation afforded through EIS comment @

procedures by liberally construing standing requirements applicable to

~ persons seeking judicial review of agency NEPA compliance; and

(7) upheld the provisions for obtaining access to relevant information»

through the Freedom of Information Act.

The Council on Environmental Quality's authority to issue its implementing S‘

regulations -- binding upon the Federal agencies -é has been broadly endorsed
by the Supreme court.

‘On the other hand, courts have taken steps to delineate the limitations on

NEPA's applicability. The Act does not require analysis in an EIS Of_5

"socio-economic" impacts where there is no primary impact on the physical
environment. NEPA does not require preparation of EIS's to accompany agency
appropriation requests, and does not (of itself) authorize agencies to
subject permit applicants to more burdensome rulemaking and licensing
procedures (than are contained in the Administrative Procedure Act and in
agencies‘ organic statutes). Moreover, where irreconcilable with the

 requirements of other agency statutes, NEPA must give way. (See “Additional

Reference Sources," below, for some of the recent legal analyses of NEPA
interpretation by the courts.)

CURRENT ISSUES RELATED TO AGENCY COMPLIANCE WITH NEPA

C.._..hall2ng§§-in.Iznlenenting-the-Nes...Pr2§2.s§.

The National Environmental Policy Act directs all Federal agencie'
individually to implement the policies ins the Act, and to utilize
environmental assessment methods and procedures in their planning and

‘ decision-making. In addition to this authority the Council on Environmental

Quality has been directed by Executive Order to guide and, most recently, to
issue binding rules for the agencies‘ compliance with the Act. While much of

CRS- 7 IBBOOOI-l UPDATE-09/02/80

the initial ceepliance eith the lam has been heavily concentrated on the
procedural steps in preparing environmental.impact statements -- and with
heavy reliance upon judicial rulings for interpreting and enforcing the

udividual agencies‘ implementing regulations - the Council and the agencies
often had disagreements with no clear administrative means for resolution.
The new authority for the Council to direct the process will emphasize better

ienvironmental decision-making with less "red tape” and delay by streamlining

statement preparation through new procedural techniques that include
mandatory interagency cooperation in conducting assessments and formal limits
on statement length, time of preparation, and review. Also, the Council's
regulation requirements will apply to all agencies uniformly and, further,
will replace the various authorities previously contained in those multiple

eagency-based regulations.

The adaptation of that single set of requirements to the diverse body of
Federal programs will be through " supplemental procedures" which each agency
will develop in consultation with the Council- (The most recent “progress
report on agency implementing procedures" was published by the Council on

~Environmental Quality on June 25, 1980: H5 §gdegg;_ gggggtgg #2786).

Nonetheless, the legally binding requirements for determining the adequacy of
compliance will be those qovernmentwide CEQ regulations that mandate the
streamlined and improved process. The role of CEQ in ensuring the matching
of new agency procedures with the broad, decision-process—oriented
regulations will be a crucial test of whether the new process is successful
in meeting its objectives for improved impact statements and better
decisions. The compliance by agencies is expected to be subject to the
continuing close scrutiny of affected citizens, organizations, and
governmental bodies that have participated in, or sought enforcement of, the

evious requirements. Another crucial test will be whether judicial
interpretations of the new requirements -- whose more precise definitions can

-reduce some uncertainties - might also cause a re-litigation of previously

decided questions.

The major, longer-term issue involved in this new phase of NEPA has been
stated as follows (in the context of the earlier procedures): "If NEPA is to
achieve its goals, it must work effectively at the policy and programmatic
levels of government, not merely in procedural applications to individual

‘ iprojects" (Professor Richard N.L. Andrews, writing in a workshop paper cited

below in the "Reports and Congressional Documents“ section). That author
gives as evidence for his 1975 statement that "there is not yet much evidence
of gygtgggtig change in substantive activities as a result of NEPA,
particularly in fundamental Federal priorities for action, despite the
considerable number of changes in individual action proposals that have been
credited to NEPA influence." He cited at that time the "increasingly
compelling need for an environmental perspective in truly major Federal

.policy decisions, such as those setting the fundamental directions for food
‘land energy use, resource consumption, pollution, and population" -- since F
agency responses to NEPA at the policy level has partly been a "'subtleq

strategy of avoidance and inaction'." The new regulations can be expected to
further a trend toward broader assessments of environmental factors in major
policy decisions. However, the nature of Federal policy formulation and the

political process will not easily change --from accommodating the diverse
orqanizational jurisdictions, interests, and inputs when there is still
e: antially agency-by-agency compliance with the NEPA process - unless there

are accompanying steps toward more multi-agency action and cooperation for

' major policy initiatives. Also, if the policy or  program-level impact

statements are to be “legally sufficient" to meet the Act's "detailed
statement" requirement, the agencies‘ new supplemental procedures will have

CRS- 8 IBBOOOH %UPDlTE-09/02/80

B to establish clear, predictable relationships - in order to reduce earlier

uncertainties -- between assessments on national policies and those on
subsequent project or site-specific impacts (see for example the reference
cited below concerning nationwide wilderness disignations, for which
Federal court found the individual areas to be insufficiently analyzed and
for which the Congress may enact a legislative solution).

C__r;rrenr-§ta.tn§-2£_;I.1:erneri9n_l_and..§9.d9et-I§§ne--Be;er.ed-22-§§25.

Two previous areas of controversy have been addressed recently and are not
expected to create difficulty in administering the new regulations. These
issues were the extent to which NEPA applied to agencies’ international
actions with environmental effects, and whether impact statements are
required for agencies‘ budget requests. To address the, first question the
President on January 4, 1979 issued Executive order 12114, "Environmental
Effects Abroad of Major Federal Actions," which requires a NEPA-like - but
non-statutory - consideration of U.S. «activities with international
environmental consequences (for further information, see the archived CRS
issue brief "Environmental Impact Statements: International," IB7B022).

Second, the Supreme Court ruled on the budget EIS question in June 1979.
In a case involving funding for the National Wildlife Refuge System, the
Court held that Section 102(2)(C) of NEPA does not require Federal agencies
to prepare environmental impact statements to accompany their appropriation
requests, even when the requests are a result of a "painstaking review" of an
ongoning program (as the lower courts had ruled in part). (For additional
information on this case, see the CRS mini brief, "Environmental Impact
Statements and Federal Budget Preparation," BB79218.)

Bendinsleéielarizeieenee

Energy "F§§;_1;agg:_grgpg§g;§: In the 96th Congress, NEPA procedural
requirements are subject to modification in the bills considered for
establishing a "fast track" for approving some energy projects, as well as in
separate proposals to place time limits on judicial review of all

environmental impact statements.

The legislative proposals to expedite energy projects through "fast track"
regulatory procedures include provisions that specify when and how
project-level actions would be subject to impact statement requirements, and
also which would be subject to expedited judicial review -- thus enabling
these projects to comply with deadlines in the proposed Project Decision
Schedules. Since NEPA is generally seen as a procedural law, it has not
figured prominently in the congressional debate over the degree to which an

Energy Hobilization Board could waive substantive environmental laws or’

standards applicable to expedited energy projects. Recent news accounts
indicate that agencies with major environmental responsibilities are
concerned that the Department of Energy has been insensitive to environmental
concerns in its synfuels assessments, and that the NEPA procedures offer a

pivotal mechanism for the consideration of both environmental and economic I

impacts related to EHB actions. (See ;g§i§g_§2§, Mar. 7, 1980.) Also, the
General Accounting Office on Jan. 29, 1980, recommended that DOE's Office of
Environment should have a more active role in the selection andw developmen”
of energy programs and projects. (For additional details, see the CRS issue
brief IB79126, "Energy Mobilization Board: A Comparision of S. 1308 and H.R.
4985 (The Priority Energy Project Act of 1979).") »

Lia;§§_gg_gggig;g;_§gy;gg:~ Also in the 96th Congress several bills have

CRS- 9 IBBOOOQ UPDATE‘09/02/80

been introduced to set a time limit for judicial review of all actions under
NEDA, i.e., to require that court challenges to environmental impact
statements must be brought within a certain time period, such as 180 days
‘see H.R. H196 and S. 949). These bills would amend the Act directly and
would apply to the approximately 70 Federal agencies that are expected to
issue procedures under the CEQ's new NEPA regulations. The proposed
amendments could reduce the number of court suits, which have characterized
much of the law's implementation.

Eiléeraeee- Beziezezflneleer- Eaeree- §isingz§rall- eneieeee- Leaee- Some
wilderness bills contain provisions that no could possibly have the effect
of overturning a Federal court ruling in California by "approving" a Forest
Service impact statement on its RARE II wilderness recommendations to the
Congress. This so-called release language is found in the Oregon ‘wilderness
bill, among others, in the Senate (3. 2031), and more comprehensively in H.R.
6070. other pending hills which concern RARE II mwilderness recommendations
in California include H.R. 5578 and H.R. 5586. Further, the Senate-passed
Nuclear Waste Policy Act (5. 2189) would exempt some nuclear waste site
planning from specified NEPA requirements, especially related to the
consideration of alternatives for storage of spent nuclear fuel. Finally,
H.B. 6626 —— on which hearings were held Mar. 3, 1980 - would, as partially
reported, have exempted the Small Business Administration loans from NEPA
procedures; it passed the House on July 28, 1980, without the exemption.

SUHHARY

There are several major interrelated issues regarding the current status
d future of the National Environmental Policy Act. The first is the
effectiveness of the «changes mandated in environmental impact statement
procedures by the new regulations - especially in the context of national

“ demands for improved government programs.~ Second is the overall effect NEPA

has at the policy level of decision-making, given its early application --
and some say its over—emphasis on procedural matters -- at the project level.
This “level of assessment" issue, and its potential for trivialization of the
Act's basic policy purposes, is related to the question of whether NEPA's

 clear requirement for environmental assessments on agencies’ legislative
“ proposals is being adequately implemented or enforced -- under the

regulations’ new flexible criteria -- in order to address environmental
concerns at the earliest stages of program initiatives originating in the
executive branch. Somewhat related issues are the cumulative effects on NEPA
of numerous legislative amendments or exemptions, such as energy "fast-track"
proposals, or the proposed limits on judicial review.

5. 1308 (Jackson)/H.R. H985 (Udall)

these bills, as agreed on by the conference committee, would establish an
Energy mobilization Board to provide an expedited "fast track" regulatory
procedure for “critical energy facilities." [S. 1308 was recommitted to
conference by the House on June 27, 1980.]

u track.”

8 limiting the environmental assessments to individual project

8 between the Board,
’ total authority for enforcing HEPA's impact statement requirements,

“Additional authority in both bills

:_while the process
a accomplish an

CBS-10 IB80004 UPDATE-O9/02/80

As reported on June 21, 1980 1980 (B.Bept. 96-1119), 5. 1308 calls for an
expedited compliance process with the National Environmental Policy Act
(NEPA) to begin after designation of a priority energy project, and withi‘
deadlines set by the Board's project decision schedule. The agreemen
generally follows the Senate version and specifies detailed guidance a how
procedural modifications of NEPA would be integrated with the Energy "fast
First, 5. 1308 exempts both the designation process‘
establishment or revision of a project. decision schedule from
requirements for preparation of an environmentall impact statement, thus
proposals. The
bill also requires that the Council on Environmental Quality determine if any
Federal action relating to a priority energy project will be a major Federal
action significantly affecting the quality of the human environment as
defined by NEPA.

NEPA

The EBB may require "any or all Federal agencies" to prepare
final environmental impact statement, although normally the
Environmental Quality (CEQ), is to designate a lead agency to prepare
EIS.
that the single EIS will comply with State and local EIS requirements -- if
appropriate determinations are made for substituting Federal EIS compliance
for comparable State and local requirements. Additional pre-emptive powers
are given to the Board for ensuring expedited completion of the EIS process
on a schedule.

only  one
Coun cil on
the

S. 1308 also states that projects will be subject to
CEQ regulations. Although the proposal calls for CEQ to determine if any
Federal action will be "major" under the NEPA criteria and, if so, t"
designate a lead agency to comply with NEPA, the Board could take over thest
determinations of any major actions requiring EIS's, and of lead agency
designations if the Council failed to act "before establishment of the
Project Decision Schedule." The Board also may direct that.only the one 'EIS
be prepared and that it will be used by all Federal agencies to satisfy their
NEPA obligations. -

in the bill
the CEQ, and agencies would grant the

These provisions assigning general BIS responsibilities
Board less than
although
power to
the date of

oil and

the Board could accomplish expeditious NEPA compliance through its
limit total time of a project decision schedule to 12 months from
application. (Separate provisions require decisions in 90 days on
gas drilling permits on Federal ggghggg leases, ands 12-month decisions for
other onshore exploration and coal mining approvals on public lands.)
for the Board to take over agency
decision-making further enhances its expediting authority under most laws,
for waiving most laws which impede schedules would
additional expediting function. (Some of the routine

ecological studies or underlying research that have characterized the

preparation of some major energy project impact statements would likely have
’to be foregone under the minimum schedules.) 8

Til.-12._.l.i2.i_.'e§-2y...:i2Ai2ial..rs2.zie2

S. 949 (Burdick et al.)/H.R. #196 (Andrews H.)

Amends the National Environmental Policy Act of 1969 to require that

and the’;

This lead agency is to consult with State and local officials to ensure ,

most of the existing 1

cns-11 Isaooou upnarn-09/02/so

actions for judicial review of any nfinal detailed environmental iapact

‘ statenent be filed in a court of competent jurisdiction within a statute of

limitations (180 days). (For bills that would affect which Federal courts

 “ear environmental cases, see 5. 1472 and H.R. 6079.) Introduced Apr. 10,

.979; referred to Committee on Environment and Public Works. House bill
introduced May 23, 1979; referred to Committee on merchant marine and
Fisheries.

6Ei1derne§§.§ez'e §

H.R. 6070 (Foley, et al.)

Provides for‘ multiple-use management under the Forest and Rangeland
Renewable Resources Planning Act of 1970 of national forest lands not
included in the National Wilderness Preservation System; also contains
NEPA—re1ated "release" provisions (see H.R. 7702 with similar provisions for
California, as passed by the House on Aug. 18, 1980). Introduced Dec. 10,
1979; referred to here than one connittee.

S. 2031 (Hatfield)

Designates specified wilderness lands in Oregon as components of the
National Wilderness Preservation System.

Establishes a conservation area within specified national forests and
designates specified lands within such conservation area as wilderness; also
/ ntains NEPA-related “release” provisions. (See also. 5. 2583/New Mexico,

and for Colorado, 5. 2701/8. 2 3/H.R. 5087.) Introduced Nov. 20,  1979:.
referred jointly to House Conni ees on Interior and Insular Affairs; and.

Agriculture. Measure passed Senate on Nov. 26, 1979.

§gglea;_Ha

§2e§-§i:i29

S. 2189 (Johnston)

Establishes a program for Federal starage of spent. fuel from civilian
nuclear powerplants, to set forth a Federa1.policy and initiate a program for
the disposal of nuclear waste from civilian activities, and for other

y purposes [specifies limited NEPA compliance]. (See also S. 1521 and S.

1360.) Introduced Jan. 3, 1980. Reported Jan.i 3, 1980 (S.Rept. 96-5H8).
Passed Senate July 30, 1980. Related provisions in the House are included in
H.R. 7018 and in an authorization for DOE, H.R. 6627 (H.Bept. 96-967, part
III).

§sell.§9§ine§§.Adii-i§tratinn Eienetiee

H.R. 6626 (Smith, H., by request)

consolidates and modifies the terms of SBA programs under sections 7(a),

' 7(e), 7(h), 7(i) and 7(1) of the Small Business Act and sections 501 and 502

of the Small Business Investment Act of 1958 to exempt SBA loans from the
environmental impact requirements of the National Environmental Policy Act of

CBS-12 IBBOOOH UPDATE—O9/O2/80

1969 and to limit the annual amount of SBA loans, guarantees, and other
obligations or commitments to the extent or amounts provided in
appropriations acts. Introduced Feb. 26, 1980; referred to committee o-

- Small Business. Hearings held Mar. 3, 1980. Reported May 19, 1980 (H.Rept

96-1028, part 1); referred to Committee on Merchant Marine and Fisheries;
reported June 28, 1980, with amendments tcr delete the‘ exemption to NEPA

v,(H.Rept. 96-1028, part 2). Passed House July 28, 1980, without NEPA

exemption.

0 HEARINGS

0.5. Congress. Senate. Committee on Environment and Public
Works. Subcommittee on Resource Protection. Export-Import
Bank Act Amendments of 1978. Hearings, 95th Congress,
2d session, on 5. 3077. Washington, 0.5. Govt. Print.
Off., 1978. 315 p. 0
"Serial No. 95-367"
Hearings held June 20 and July 11, 1978.

"Legislative Activity Relating to the National Environmental

Policy Act (NEPA)" [in] 0.5. Library of Congress. Environmental

and Natural Resources Policy Division.
Environmental Protection Affairs of the 95th Congress.

A report prepared for the Committee on Environment and

Public Works, 0.5. Senate. Washington, 0.5. Govt. Print.

0ff., Hay 1979: 551-697. A ' F
At head of title: 96th Congress, 1st session. Committee print.
"Serial NO. 96?5“

0.5. Congress. Senate. Committee on Interior and Insular
Affairs. The Council on Environmental Quality -- oversight
report. Washington, 0.5. Govt. Print. Off., 1977. 167 p.

0.5. General Accounting Office. The Energy Department's
Office of Environment does not have a large role in
decision-making: report to the chairman, Committee on
Governmental Affairs, 0.5. Senate, by the Comptroller
General of the United States. [Washington] 1980. 32 p.

"EEID-80-50, Jan. 29, 1980"

0.5. General Accounting Office. The environmental impact
statement -- it seldom causes long project delays but could
be more useful if prepared earlier: report to the Committee
on Environment and Public Works, 0.5. Senate. [Washington]
1977, 53 p.

"CED-77-99, Aug. 9, 1977“

0.5. Library of Congress. Environment and Natural Resources
Policy Division. Workshop on the National Environmental
Policy Act; a report prepared pursunt to the request of
the Subcommittee of Fisheries ami Wildlife Conservation and the
Environment of the Committee on Merchant Marine and Fisheries,
0.5. House of Representatives. Washington, 0.5. Govt. Print.

Qff

=3

print.
"Serial no. 94-E”

§§B0NQLQGY.9.§_.1.3.Y.§.1!

12/00/79

07/30/79

A01/o 4/79

11/29/78

01/21/78

06/09/78

12/12/77

12/05/77

10/26/77

1976.
At head of title:

CRS-13 IB80004 UPDATE—09/02/80

151 p.

94th Congress, 2d session. Committee

5

The tenth Annual Environmental Quality Report was
published by the Council on Environmental Quality
as required by the National Environmental Policy Act.

Effective date for Federal agency compliance with the
government-wide regulations for implementing the
National Environmental Policy Act (see entry of
11/29/78, below).

The President issued Executive Order 1211a requiring
Federal agencies to consider the international
environmental impacts of certain of their actions.
The Order states that it is based on "independent
authority [and] furthers the purpose of the National
Environmental Policy Act."

The Council on Environmental Quality (CEQ) published
in the §g§gga;_§ggi§tg; (#3 FR S5978-56007) its final
regulations for improving the domestic application

of the National Environmental Policy Act of 1969.

The Senate adopted S.Res. #9, a resolution expressing the
sense of the Senate that the United States Government
should seek the agreement of-other governments to a
proposed treaty requiring the preparation of an
International Environmental Assessment for any major
project, action, or continuing activity which may be
reasonably expected to have a significant adverse

effect on the physical environment or environmental %
interests of another nation or a global commons area.

The Council on Environmental Quality published for
public comment in the §gdg;g;_gggi§tgg (H3 ER
25230-252u7) its proposed regulations to improve the
environmental impact statement procedures under the
National Environmental Policy Act of 1969.

(See entry of 11/29/78.)

The CEQ circulated for agency review and comment its
draft regulations for improving the procedures for
the preparation of domestic environmental impact
statements.

Effective date for the transfer from CEQ to EPA of the
receipt and filing of environmental impact statements
(as provided in Reorganization Plan No. 1 of 1977).

The House Merchant Harine~Subcommittee with NEPA
jurisdiction held an oversight hearing on the Council
on Environmental Quality, particularly the CEQ

CBS"1l¥ IBBOOOIA UPDATE-O 9/O2/80
efforts to reform NEPA procedures.

08/11/77 - The CEQ circulated a memorandum on an improved
mechanism for NEPA impact statement referrals by
agency heads (under Section 309 of the Clean Air Act).

07/15/77 - The President's Reorganization Plan No. 1 of 1977
proposed to transfer energy research review functions,
and routine review and handling of environmental
impact statements from the CEQ to the Environmental
Protection Agency (see entry of 12/05/77).

06/06/77 -— The CEQ held three days of public hearings to receive
testiiony on new CEQ regulations for improving the
NEPA impact statement process.  

05/24/77 - The President issued Executive Order 11991 authorizing,
the CEQ to issue regulations to supplant its advisory
 NEPA guidelines to agencies.

05/23/77 -- The President's environmental message to the Congress
(H.Doc. 95-160) called for improving the NEPA
impact statement procedures -- including new CEQ
regulations for agency compliance. '

08/01/73 - The CEQ published revised guidelines in the gggggglg

gggigtgg (38 PR 20550-20562) for Federal agencies’
preparation of environmental impact statements under HEPA.

on/23/71 - The CEQ published its initial guidelines (36 FR 7720-7729)
to assist agencies in implementing HEPA. .

03/on/70 - The President issued Executive Order 11514 (35 FR
#207) with authorities for complying with NEPA.

01/01/70 - The National Environmental Policy Act was enacted as
Public Law 91-190 (H2 USC H321 et seg.). 1

.‘-.‘v.12l3.Tl.Q§éL--!3i§.1Z1.?-.1!1'E.1!§..13_§.°U§§. 5

American Bar Association. Section of Natural

Resources Law. Environmental Quality

Committee. National Environnental Policy Act; annual
committee report on significant legislative, judicial,
and administrative activities in 1979. Natural Resources
Lawyer, v. 13, no. 1, 1980: 49-97. —

Anderson, Frederick R. NEPA in the courts; a legal analysis
of the National Environmental Policy Act. Baltimore:
Resources for the Future, distributed by Johns Hopkins
University Press [c1973] 324 p._

KF3775.A95

Charting the boundaries of NEPA's substantive mandate:

§rr1h2r:§_§a1_§ei9hb9rh99d.§9gn2il..lns- v- Earlen-
Environnental Law Reporter, v. 10, no. 2, Feb. 1980: 10039.

CR5-15 IB80004 UPDATE-O3/G2/80

Eadregs, Richard E.L. Environmental policy and adninistrative
change: implementation of the National Environmental
Policy Act. Lexington, Hass.: Lexington Books, 1976. 230 p.

KF3775.A96

Dolgin, Erica L. Federal environmental law. Edited by Erica L.

Dolgin and Thomas G.P. Guilbert, for the Environmental

Law Institute. St. Paul, uinn.: West Publishing Co.,
1970. 1600 p.

See "The National Environmental Policy Act," by
Frederick R. Anderson: 238-R19.
KF3775.D6  

Orloff, Neil. The environmental impact statement process:
a guide to citizen action. Washington: Information
Resources Press, 1978. 242 p.

TD19fl.5.07u

Phillips, Paul D. NEPA and alternative energy: wind as a case
study. Solar Law Reporter, v. 1, Hay-June 1979: 29-54.

Raymond, James F. A Vermont yankee in King Burger's court:
constraints on judicial review under NEPA. Boston
College Environmental Affairs Law Review, v. 7, no. 4,
1979: 629—66u.

Rodgers, William H. Jr.i Handbook on environmental law. .St. Paul,
ninn.: West Publishing Company, 1977.
See Chapter VII, "National Environmental Policy Act.”

0.5. Council on Environnental.Quality- Environmental quality:
the tenth annual report. [Washington. For sale by the
Superintendent of Documents, 0.5. Govt. Print. Off.)
1979. 816 p..'

See Chapter 10 on NEPA: 577-605.

National Environmental Policy Act. Implementation of
procedural provisions; final regulations. Federal
Register, v. 03, no. 230. Nov. 29, 1978: 55978-56007.

 

---- Eighth progress report on agency implementing procedures
under the National Environmental Policy Act. Federal
Register, v. 05, no. 124. June 25, 1980: 42786.

3.5. President, 1977- (Carter). Environmental effects
abroad of major Federal actions; executive order 12110,
Jan. a, 1979. Weekly compilation of presidential documents,
v. 15, no. 1, Jan. 8, 1979: 10-14. (Also printed in
Federal Register, v. an, no. 6, Jan. 9, 1979: 1957-1960.)

Wilderness in the national forests: California court finds RARE II
NEPL violations, congress ponders ‘release’. Environmental Law
Reporter, v. 10, Hay 1980: 10096.

‘V f L:m:~;r:v
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