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Show U.S. [4 ERC 1745] 41 U.S. L. WEEK 3616 (May 21, 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 of the environment. Similarly, the regulations of the Environmental Protection Agency require that agency to issue a negative declaration when an environmental assessment indicates there will be no significant impact, accompanied by an appraisal documenting the agency's reasons for concluding that no statement is required.65 A statement of reasons will serve two functions. It will ensure that the agency has given adequate consideration to the problem and that it understood the statutory standard. In addition, it will provide a focal point for judicial review of the agency's decision, giving the court the benefit of the agency's expertise!66 In the present case the Commission has not established any procedure to evaluate its ongoing LMFBR program under NEPA. The Commission's basic position throughout this case seems to be that NEPA does not apply at all to overall research and development programs, but rather only to specific facilities. To "the extent the Commission's decision not to write a statement for its program represents instead a decision that the time is not yet ripe for such a statement, the Commission has not given reasons for its decision. Nor are the post hoc rationalizations of Commission counsel of much value as a substitute.67 As indicated earlier, the reasons given in this case are ambiguous and inconsistent. And even if they were not, we would have no way of knowing whether they reflect the reasons actually relied upon by the Commission. We must, therefore, resort to other material in the record to determine whether the Commission properly decided not to draft a statement for the overall program at the present time. Fortunately a substantial record was made before the District Court, consisting in large part of analyses and reports completed by the Commission itself. Our examination of this record leads us to conclude that the Commission could have no rational basis for decid- 45 Id. at 1699, amending 40 C.F.R. § 6.25(a) (1972). 66 See Permian Basin Area Rate Cases, 390 U.S. 747, 792 (1968); Citizens Assn of Georgetown, Inc. v. Zoning Comm'n of D. G, supra note 61, U.S.App.D.C. at , F.2d at (slip op. at 9-10); Environmental Defense Fund, Inc. v. Ruckelshaus, supra note 62, 142 U.S.App.D.C. at 88, 439 F.2d at 598. 67 See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 419 [2 ERC 1250] (1971); Burlington Truck Lines v. United States, 371 U.S. 156, 168-169(1962). •y<.i£H:ins itisaiutev. AEL, ing that the lime is not yet ripe for drafting an impact statement on the overall LMFBR program. 68 Consideration of each of the facts set out in our balancing test points in the direction of drafting an impact statement now. TjoJiegirijtfith, commercial implementation ofLMFBR t cchnology Is i'ar f r orns pec Ufa t i ve. The m asTtrr n motirrrrof~mo ncy be ing" p u mped into this program by Congress and the Presidential Energy Policy statement committing the nation to completion of the first commercial- sized demonstration plant by 1980 both indicate widespread confidence that the program will succeed in its twin goals of demonstrating the commercial feasibility of the. „ *" The decision whether the-Ume-k-rifw for a NEPA statement on an overall research and development pr()gr7rin^TTrrrrix«l-questi()n of law and of facrf"fi~cT7hT<?m:r^ "pTtrmion of the statutory phrase "major Federal action significantly affecting the quality of the human environment" as it pertains to technology research and development programs. As indicated in text, we interpret the statute to provide for a balancing approach which takes into account the Act's policies in favor of information which is both meaningful and timely. In addition, the decision involves a question of fact as to application of that.balancing test to the realities of a specific program at a specific time. With respect to judicial review of such mixed questions of law and fact, the Supreme Court has authorized a practical standard of review, the "rational basis" test, under which the court will reverse the agency's decision if it has no warrant in the record and no reasonable basis in law. NLRB v. Hearst Publications, Inc., 322 U.S. I l l , 131 (1944); Hanly v. Kleindiensl, 2 Cir., 471 F.2d 823 829 (1972). In reviewing an agency decision that no impact statement was required for certain proposed federal action, the 2nd Circuit has recently rejected this approach in favor of the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of the Administrative Procedure Act, see 5 U.S.C. § 706(2) (A) (1970), as that test was interpreted by the Supreme Court in Citizens to Preserve Overton Park, Inc. v. Volpe, supra note 67. See Hanly v. Kleindiensl, supra, 471 F.2d at 828- 830. We think it largely irrelevant which standard of review is verbalized in the context of the instant case. Under Overton Park the court must first delineate the scope of the agency's authority and discretion under the governing statute and then determine, "whether on the facts the [agency's] decision can reasonably be said to be within that range." 401 U.S. at 416. Under the rational basis test, the court would have to determine whether the agency's decision had "reasonable support in relation to the statutory purpose." See Hardin v. Kentucky Utilities Co., 390 U.S. 1, 9 (1968). In the present case, the scope of the AEC's authority and discretion in determining when to draft a NEPA statement for its research and development program is defined specifically by reference to the underlying statutory purpose of timely and meaningful impact statements and, as a result, the two standards of review merge into one. |
