| OCR Text |
Show GREENE COUNTY PLANNING BOARD v. FEDERAL POWER COM'N 421 Cite as 455 F.2d 412 (1972) itself subject to scrutiny during the agency review processes. If this course of action we approve were not followed, alternatives might be lost as the applicant's statement tended to produce a status quo syndrome. The danger that the review process will bog down once an initial decision has been rendered is fully recognized by the Council on Environmental Quality22 in Section 10(b) of its Guidelines suggesting procedures for compliance with NEPA, 36 Fed.Reg. 7724 (April 23, 1971): It is important that draft environmental statements be prepared and circulated for comment and furnished to the Council early enough in the agency review process before an action is taken in order to permit meaningful consideration of the environmental issues involved. To the maximum extent practicable no administrative action is to be taken sooner than ninety (90) days after a draft environmental statement has been circulated for comment, furnished to the Council and . . . made available to the public . . . . It is interesting that the Commission relies on these Guidelines to sustain its position. Initially, it directs us to Section 7 which would allow an agency, when it seeks the advice of other agencies pursuant to Section 102(2) (C), to circulate "(i) a draft environmental statement for which it takes responsibility or (ii) comparable information . . . . " And, Section 2.81(b) of the Commission's latest rules (issued after the Guidelines) provides that the applicant's draft statement "shall be deemed to be information comparable to an agency draft statement 22. The Council was established pursuant to Subchapter II of NEPA, 42 U.S.C. § 4341 et seq. Its duties include assisting the President in the preparation of the annual Environmental Quality Report to be transmitted to Congress and conducting investigations and developing programs concerning environmental quality. 23. An alternative interpretation, and one we would deem acceptable under the Act, pursuant to Section 7 of the Guidelines of the Council on Environmental Quality." The Commission then calls our attention to Section 10(e) of the Guidelines, which provides: Agencies which hold hearings on proposed administrative actions or legislation should make the draft environmental statement available to the public at least fifteen (15) days prior to the time of the relevant hearings except where the agency prepares the draft statement on the basis of a hearing subject to the Administrative Procedure Act and preceded by adequate public notice and information to identify the issues and obtain the comments provided for in sections 6-9 of these guidelines. The Commission argues that the proviso relieves it o f its obligation to prepare an environmental statement prior to the licensing hearings and that the applicant's statement, "information comparable" to a statement of its own, sufficiently identifies the issues. Although the Guidelines are merely advisory and the Council on Environmental Quality has no authority to prescribe regulations governing compliance with NEPA, we would not lightly suggest that the Council, entrusted with the responsibility of developing and recommending national policies "to foster and promote the improvement of the environmental quality," NEPA § 204, 42 U.S.C.A. § 4344, has misconstrued NEPA. Although the Commission's interpretation of Section 10(e) of the Guidelines is superficially appealing, it flies in the face of Section 102(2) (C) of NEPA which explicitly requires the agency's own detailed statement to "accompany the proposal through the existing agency review processes."23 is that the agency may hold two hearings --one solely to gather information to aid the Commission in formulating its statements, the second to consider the merits of the license application. I t is interesting to note that the Council on Environmental Quality assumed that when the Commission circulated the PASNY report, it subsequently would circulate its own report. In its June 1971 |
