| OCR Text |
Show 1094 481 FEDERAL REPORTER, 2d SERIES eluded without consideration of environmental factors. Any statement prepared at such a late date will no doubt be thorough, detailed and accurate, but it will be of little help in ensuring that decisions reflect environmental concerns. Thus we are pulled in two directions. Statements must be written late enough in the development process to contain meaningful information, but they must be written early enough so that whatever information is contained can practically serve as an input into the decision making process. [13] Determining when to draft an impact statement for a technology development program obviously requires a reconciliation of these competing concerns. Some balance must be struck, and several factors should be weighed in the balance. How likely is the technology to prove commercially feasible, and how soon will that occur? To what extent is meaningful information presently available on the effects of application of the technology and of alternatives and their effects? To what extent are irretrievable commitments being made and options precluded as the development program progresses? How severe will be the environmental effects if the technology does prove commercially feasible? [14] Answers to questions like these require agency expertise, and therefore the initial and primary responsibility for striking a balance between the competing concerns must rest with the agency itself, not with the courts.61 At the same time, however, some degree of judicial scrutiny of an agency's decision that the time is not yet ripe for a NEPA statement is necessary in order to ensure that the policies of the Act are not being frustrated or ignored. Agency decisions in the environmental area touch on fundamental personal interests in life and health, and these interests have always had a special claim to judicial protection.62 [15] The first function of judicial review in this area should be to require the agency to provide a framework for principled decision making.63 Agencies engaging in long-term technology research and development programs should develop either formal or informal procedures for regular, perhaps annual, evaluation of whether the time for drafting a NEPA statement has arrived.64 [16] More importantly, when the agency has decided that a NEPA statement is not yet necessary, it should state reasons for its decision. The value of such a statement of reasons is becoming generally recognized as courts and agencies grapple with the difficult task of developing procedures for compliance with NEPA. In Hanly v. Kleindienst, 2 Cir., 471 F.2d 823 (1972), cert, denied, 412 U.S. 908, 93 S.Ct. 2290, 36 L.Ed.2d 974 (1973), for example, the General Services Administration issued a 25- page "Assessment of the Environmental Impact" to justify its conclusion that a proposed downtown jail facility would have no significant effect on the quality 61. See Citizens Assn of Georgetown, Inc. v. Zoning Comm'n of D.C, 155 U.S.App. D.C. 233, 239, 477 F.2d 402, 408 (1973). Cf. Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 145, 479 F.2d 842, 866 (1973) ; Thompson v. Clifford, 132 U.S. App.D.C. 351, 364, 408 F.2d 154, 167 (1968). 62. Environmental Defense Fund v. Ruckels-haus, 142 U.S.App.D.C. 74, 88, 439 F.2d 584,598 (1971). 63. Ibid. 64. Compare the recently promulgated regulations governing preparation of impact statements by the EPA. "Proposed and certain ongoing Agency actions * * * shall be subjected to an environmental review. This review shall be a continuing one and should commence at the earliest possible point in the development of the project. It shall consist of a study of the proposed program or project which identifies and evaluates the expected and potential environmental impacts of the action and alternatives to it. It will determine whether a significant impact is anticipated from the proposed action." 38 Fed.Reg. 1696, 1698 (Feb. 16, 1973), amending 40 C.F.R. § 6.21(a) (1972). |
