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Show 1120 449 FEDERAL REPORTER, 2d SERIES / ) / er January 1, 1970.25 "fjmetaBTe ently enforced by reviewing courts up to now. Every federal court having faced the issues has held that the procedural requirements of NEPA must be met in / o ^ e 1 r ^ o l i p ^ o I 3 ] l ^ ^ ^ f ^ t i ^ ^ ^ e n aft- The absence of a or compliance has never been held sufficient, in itself, to put off the date on which a congressional mandate takes effect. The absence of a "timetable," rather, indicates that compliance is required forthwith. The only part of the Act which even implies that implementation may be subject, in some cases, to some significant delay is Section 103. There, Congress provided that all agencies must review "their present statutory authority, administrative regulations, and current policies and procedures for the purpose of determining whether there are any deficiencies or inconsistencies therein which prohibit full compliance" with NEPA. Agencies finding some such insuperable difficulty are obliged to "propose to the President not later than July 1, 1971, such measures as may be necessary to bring their authority and policies into conformity with the intent, purposes, and procedures set forth in this Act." The Commission, however, cannot justify its time lag under these Section 103 provisions. Indeed, it has not attempted to do so; only intervenors have raised the argument. Section 103 could support a substantial delay only by an agency which in fact discovered an insuperable barrier to compliance with the Act and required time to formulate and propose the needed reformative measures. 25. In some cases, the courts have had a difficult time determining whether particular federal actions were "'taken" before or after January 1, 1970. But they have all started from the basic rule that any action taken after that date must comply with NEPA's procedural requirements. See Note, Retroactive Application of the National Environmental Policy Act of 1969, 09 Mieh.L.Rev. 732 (1971), and cases cited therein. Clearly, any hearing held between January 1, 1970 and March 4, 1971 which culminates in the The actual review of existing statutory authority and regulations cannot be particularly lengthy process for expon-enced counsel of a federal agency, o-course, the Atomic Energy Commission discovered no obstacle to NEPA implementation. Although it did not report its conclusion to the President until October 2, 1970, that nine-month delay (January to October) cannot justify so long a period of noncompliance with the Act. It certainly cannot justify a further delay of compliance until March 4, 1971. No doubt the process formulating procedural rules to implement NEPA takes some time. Congress cannot have expected that federal agencies would immediately begin considering environmental issues on January 1, 1970, But the effective date of the Act does set a time for agencies to begin adopting rules and it demands that they strive, "to the fullest extent possible," to be prompt in the process. The Atomic Energy Commission has failed in this regard.26 Ccr^ sideration of environmental issues in the agency review process, for example, is quite clearly compelled by the Act.-7 The Commission cannot justify its 11- month delay in adopting rules on this point as part of a difficult, discretionary effort to decide whether or not its hearing boards should deal with environmental questions at all. Even if the long delay had been necessary, however, the Commission would not be relieved of all NEPA responsibility to hold public hearings on the environmental consequences of actions taken between January 1, 1970 and final adop-grant of a permit or license is a federal action taken after the Act's effective date. 26. See text at pnge 1116 supra. 27. As early as March 5, 1970. President Nixon stated in an executive order that NEPA requires considenition of environmental factors at public hearings. Executive Order 11514, 35 Fed.Reg. 4247 (March 5, 1970). See also Part II of this opinion. |
