Sierra Club v. Gilbert Stamm and other legal cases involving environmental impact statements

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422 455 FEDERAL REPORTER, 2d SERIES There can be no question that the hear­ings on PA'SNY's application, ordered pursuant to Section 308 of the Federal Power Act, 16 U.S.C. § 825g, and Section 1.20 of the Commission's rules, 18 C.F.R. § 1.20 (January 1, 1971), constitute an existing agency review process. [6, 7] Though we conclude that the Commission was in violation of NEPA by conducting hearings prior to the prep­aration by its staff of its own impact statement,24 we are of the view that it did not seek improperly the advice of other agencies on the basis of PASNY's application. Section 102(2) (C) com­pels the agency to seek this advice before preparing its statement. Section 102(1), however, directs that "to the fullest ex­tent possible" regulations should be in­terpreted and administered in accordance with the policies of NEPA. In. this re­gard, it would be instructive for the Commission to consult the rules of the Atomic Energy Commission, 36 Fed.Reg. 18071 (Sept. 9, 1971), promulgated after the decision in Calvert Cliffs' charged the AEC with a "crabbed interpretation of NEPA [which made] a mockery of the Act." 449 F.2d at 1117. The Atomic Energy Commission, although it still re­quires an applicant to submit its environ­mental report, prepares a draft report of its own in advance of seeking the advice of other federal agencies. Then, on the basis of comments received from these agencies and all interested parties, it pre­pares its final detailed statement, which official monthly bulletin the Council pub­lished the following notice of the PASNY report: Applicant's drafts. (These are not of­ficial FPC drafts. They will be fol­lowed by staff-prepared draft state­ments.) . . . 24. In its brief to this Court, the Commis­sion argued that it would be in contra­vention of Section 8(a) of the Adminis­trative Procedure Act, 5 U.S.C. § 557, which prohibits Commission participation in the decision-making process until the record is completely developed, if it were required to adopt a position in an environ­mental impact statement. Certainly no one has suggested that the detailed state-is offered in evidence at a contested hear­ing. [8] In light of our foregoing discus­sion, we must consider the most efficient procedure for ensuring that the policies of NEPA are implemented in Commis-sion proceedings on the Gilboa-Leeds line. For the reasons we have set forth, we deem it essential that the Commis­sion's staff should prepare a detailed statement before the Presiding Examin­er issues his initial decision. Moreover, the interveners must have a reasonable opportunity to comment on the state­ment. But, since the statement may well go to waste unless it is subject to the full scrutiny of the hearing process, we also believe that the intervenors must be given the opportunity to cross-examine both PASNY and Commission witnesses in light of the statement. "Often in­dividuals and groups can contribute data and insights beyond the expertise of the agency involved." CEQ Report, 1 En­vironmental L.Rep. at 50059. We leave to the Commission to determine the most efficient procedure for meeting this man­date. [9] Fully recognizing that delay un­fortunately is incident to our mandate and PASNY's claim that the Blenheim- Gilboa Project is a vitally needed power facility, we can only add our voice to that of the District of Columbia Circuit in Calvert Cliffs': Delay is a concomitant of the implementation of the procedures prescribed by NEPA, and the spectre ment prepared before the hearings must be prepared by the Commission members. I t is sufficient for the purposes of NEPA if the statement is prepared by the Com­mission's staff on the basis of the staff's investigations. Counsel for the Commis­sion conceded at oral argument that this procedure would not violate the APA. See also Section 6(d) of the Guidelines of the Council on Environmental Quality: Where an agency follows a practice of declining to favor an alternative until public hearings have been held on a proposed action, a draft environmental statement may be prepared and circu­lated indicating that two or more al­ternatives are under consideration.