| OCR Text |
Show U14 449 FEDERAL REPORTER, 2d SERIES [3] To ensure that the balancing analysis is carried out and given full effect, Section 102(2) (C) requires that responsible"^ficials of "all agencies prepare a^Metailed statement" covering the impact of particular actions on the environment, the environmental costs which might be avoided, and alternative measures which might alter the cost-benefit equation. The apparent purpose of the "detailed statement" is to aid in the agencies' own decision making process and to advise other interested agencies and the public of the environmental consequences of planned federal action. Beyond the "detailed statement," Section 102(2) (D) requires all agencies specifically to "stucryTdevelop, and describe ap- "prppriate. alternatives_to recomme"hHeH courses of action in any proposal which Involves unresolved conflicts concerning alternative uses of available resources." rThis requirement, like the "detailed slatement" requirement, seeks to ensure that each agency decision maker has before him and takes into proper account all possible approaches to a particular project (including total abandonment of the project) which would alter the environmental impact and the cost-benefit balance. Only in that fashion is it likely that the most intelligent, optimally beneficial decision will ultimately be made. Moreover, by compelling a formal "detailed statement" and a description of alternatives, NEPA provides evidence that the mandated decision making process has in fact taken place and, most importantly, allows those removed from the initial process to evaluate and balance the factors on their own. Of course, all of these Section 102 duties are qualified by the phrase "to the fullest extent possible." We mustTstress; as forcefully as possible that this language does not provide an escape hatch for footdragging agencies; j t does not_ make NEPA's procedural requirement^, somehow "discretionary." Congress did "not intend the Act to be such a paper tiger. Indeed, the requirement of environmental consideration "to the fullest extent possible" sets a high standard for ^jL the agencies, a standard which must_be_ Rigorously enforced by the reviewing, courts. Unlike the substantive duties of Section 101(b), which require agencies to "use all practicable means consistent with other essential considerations," the procedural duties of Section 102 must be fulfilled to the "fullest extent possible." 10 This contrast, in itself, is revealing. But the dispositive factor in our interpretation is the expressed views of the Senate and House conferees who wrote the "fullest extent possible" language into NEPA. They stated: " " * * * The purpose of the new language is to make it clear that each agency of the Federal Government shall comply with the directives set out in * * * [Section 102(2)] unless the existing law applicable to such agency's operations expressly prohibits or makes full compliance with one of the directives impossible. * * * Thus, it is the intent of the conferees amenities are considered in the calculus of project development and decisionmaking. Subsection 102(c) establishes a procedure designed to insure that in instances where a proposed major Federal action would have a significant impact on the environment that the impact has in fact been considered, that any adverse effects which cannot be avoided are justified by some other stated consideration of national policy, that short-term uses are consistent with long-term productivity, and that any irreversible and irretrievable commitments of resources are warranted." 115 Cong.Rec. (Part 21) 29055 (1969). 10. The Commission, arguing before this court, has mistakenly confused the two standards, using the § 101(b) language to suggest that it has broad discretion in performance of § 102 procedural duties. We stress the necessity to separate the two, substantive and procedural, standards. See text at page 1128 infra. I I. The Senators' views are contained in "Major Changes in S. 1075 as Passed by the Senate," 115 Cong.Rec. (Part 30) at 40417-4041S. The Representatives' views are contained in a separate statement filed with the Conference Report, 115 Cong.Rec. (Part 29) 39702-39703 (1909). |
