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

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o n the ciijdy__stagcs of research, when littie is known_abput UiFTcclrnTiiT^^ancrwtreTr-f ulur e application oTyfijQCT^ nnjogylCs. ..bo" tLudo-uUIul and remote, it may well be impassible to draft ajTfeajnhgfut impactstatement. Predictions as to the possible effects of application of the technology would tend toward uninformative generalities,58 arrived at by guesswork rather than analysis. NEPA requires predictions, but "int. p r"ph p ryi rum,nnpact statementsTTogfat =j^L<^a^i^^gi^J>3e^L.^m^od^e^ile^^^uQ^cU^lH^e^^^^f^lrk^5^''f^l*S "fTtThJtges spectrum, by the tihie^jTtmeraal^kasibility~bf tne^(iiTrF?tT^(?^y'''is'''''<r<>lil'lLli.iiJtUl tliinwhhttated, anckjSSBES 2 appllcation'ol. UincrhUfllogy ccttiua-tJM p-"-ppg^g r,r S!EBS55»a^r e a^y hgw-been thwart€dT60_Substantial investments will have been made in development of the technology and options will have been pre­cluded 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. State-ments must be vvTjuerrbrte~ef»ogfc vetrjp7TTent~process to contain meaningful in-formation, buyTBcy PQJUS h p written parly enough so that whatever information is con­tained can pracuraBj_serve~as~an inpTTt into the decisioffmaking process?"""" ' Erermrnint*"when to draft an impact state­ment for a technology development program obviously requires a reconciliation of these .competing concerns. Some balance mustbe 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 alterna- * Cf. CEQ, NEPA Memorandum, supra note 30, 3 BNA ENVIRONMENT REPORTER at 87: "A pro­gram statement will not satisfy the requirements of Section 102, however, if it is superficial or limited to generalities." See also ibid.: "If * * * the program [is] too far removed from actual implementation, the resulting analysis is likely to be too general to prove useful." 59 Cf. International Harvester Co. v. Ruck-elshaus, U.S.App.D.C , , . F.2d ___, [4 ERC 2041] (Nos. 72-1517 etc., de­cided Feb. 10, 1973) (slip op. at 45). 60 n* * * •pfic CounciI [on Environmental Qual­ity] believes that the consideration of environ­mental factors will be most effective if it comes in the early stages of program and project formula­tion. If the 102 process is not closely integrated at .his early point, it risks becoming an overlay upon agency decisionmaking. And it tends to serve as a post facto jurisdiction of decisions based on traditional and narrow grounds. * * *" CEQ, THIRD ANNUAL REPORT, supra note 30, at 246. See also note 44 supra. lives and iiicir effects? To.what extent are ir retrievable commitments being made and op- j tions precluded as the development program I progresses? How severe will he the environ- | mental effects if the technology does prove I commercially feasible? ZZZIZZ j 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." 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 re-^ search and development prograrhT"sTTotiTd dey velop either formal or informal procedu'resTor regular, perhaps annual, evaluatioryoj* whether the time lor draltmg a INEPAState­ment has arrived.^ ' ™~~"*" . 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 [4 ERC 1152] (1972), cert, denied, *' See Citizens Assn of Georgetoum, Inc. v. Zon­ing Comm'n of D. C, U.S.App.D.C. , , F.2d , . [4 ERC 1268] (Nos. 72-2103 etc., decided Feb. 6, 1973) (slip op. at 9). Cf. Wilderness Society v. Morton, •-• U.S.App.D.C. , F.2d • _ (Nos. 72-1796 etc., decided Feb. 9, 1973) (slip op. at 43); Thompson v. Clifford, 132 U.S.App.D.C. 351, 364,408F.2d 154, 167(1968). 62 Environmental Defense Fund v. Ruckehhaus. 142 U.S.App.D.C. 74, 88, 439 F.2d 584, 598 [2 ERC 1114] (1971). «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).