Broad Programmatic, Policy and Planning Assessments under the National Environmental Policy Act and Similar Devices: A Quiet Revolution in an Approach to Environmental Considerations

Pace Environmental Law Review, Dec 1993

This article examines the legal background of broad-based environmental assessments and court decisions interpreting the scope, timing and other issues regarding these assessments. The author then explores the use of these broad-based assessments in both the U.S. government and international institutions.

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Broad Programmatic, Policy and Planning Assessments under the National Environmental Policy Act and Similar Devices: A Quiet Revolution in an Approach to Environmental Considerations

Broad Programmatic, Policy and Planning Assessments under the National Environmental Policy Act and Similar Devices: A Quiet Revolution in an Approach to Environmental Considerations Jon C. Cooper 0 0 Thi s Article is brought to you for free and open access by the School of Law at - Article 5 Follow this and additional works at: http://digitalcommons.pace.edu/pelr Volume 11 Fall 1993 Number 1 Broad Programmatic, Policy and Planning Assessments Under the National Environmental Policy Act and Similar Devices: A Quiet Revolution in an Approach to Environmental Considerations JON C. COOPER* Since the passage of the National Environmental Policy Act, there has been considerable debate about the procedures, content and role of the environmental impact statement. This articleexamines the legal backgroundof broadbased environmental assessments and analyzes court decisions on timing, scope and other issues regardingthese assessments. The author then explores the use of these broadbased assessments in both the U.S. government and international institutions. I. Introduction .................................... II. NEPA Law and Regulations .................... 91 96 * The author is currently the Director for Science Policy at Louis Berger and Associates, Inc.; Adjunct Professor of Law, Pace University School of Law; Adjunct Professor of Environmental Science, State University of New York, Purchase. He received a J.D. from Pace University School of Law in 1993, a Ph.D from the University of Wisconsin (Zoology) in 1974, and a B.A. from Lawrence University in 1969. The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of Louis Berger International, Inc., Pace University School of Law, or The State University of New York. 151 152 152 Since the passage of the National Environmental Policy Act' (NEPA), there has been considerable debate concerning the procedures, content and role of the environmental impact statement (EIS), which must be prepared whenever a major federal action could have a significant impact on the environment. 2 This comment focuses on the use of broad-based environmental assessments in the U.S. government and in international institutions. An average of 425 draft and final EISs have been prepared annually during the late 1980s.3 Most EIS activities have addressed specific projects, such as the construction of a highway or a federal facility such as a jail. Under the guidance of the United States Environmental Protection Agency (USEPA) Office of Federal Facilities, most of these materials are now available at public locations. 4 Each year the Council on Environmental Quality (CEQ)5 reviews EISs submitted pursuant to NEPA.6 The primary purpose of an EIS is to "serve as an actionforcing device to ensure that the policies and goals defined in NEPA are infused into the ongoing programs and actions of the Federal government." 7 Intended as more than a disclosure or descriptive document,8 an EIS is to be used by federal officials in planning actions and making decisions. 9 CEQ Guidelines provide a standard sequence of events and organization for an EIS.10 After an agency decides, usually through an Environmental Assessment (EA), that a proposed action may significantly affect the environment, it begins the EIS process. Under CEQ Guidelines, agencies are 5. The Council on Environmental Quality is charged with ensuring that federal agencies comply with the policies and procedures of NEPA. However, the Clinton administration recently reduced the CEQ staff from forty to three employees, and cut over two million dollars from its budget. Strong protest by environmental groups has temporarily stayed CEQ's complete abolition. The administration is working with House members to transfer CEQ's authority to the USEPA's Office of Environmental Policy, but opponents have argued that EPA is not the proper body to ensure NEPA compliance by other federal agencies. At this time, CEQ's future remains uncertain. See Clinton Cuts CEQ to Three Positions,Many Long-Time Staff Members Dismissed, Daily Rep. for Executives (BNA), at 198 (Oct. 15, 1993); Gary Lee, Browner Strengthens Enforcement Office, WASH. POST, Oct. 15, 1993, at A29. 6. COUNCIL ON ENVIRONMENTAL QuALITY, ANNUAL REPORT (1991). CEQ plans a collection of these documents from 1991 to serve as models of NEPA compliance. This function is now changing as a result of Clinton Administration policies. 7. Dinah Bear, NEPA at 19: A Primer on an "Old"Law with Solutions to New Problems, 19 Envtl. L. Rep. (Envtl. L. Inst.) 10060 (1989). 8. 40 C.F.R. § 1502.1 (1992). 9. Id. 10. For further details on the EIS process see, e.g., NICHOLAS A. ROBINSON, ENVIRONMENTAL IMPACT ASSESSMENT (1983); YusUF AHMAD & GEORGE SAMMY, GUIDELINES TO ENVIRONMENTAL IMPACT ASSESSMENT IN DEVELOPING COUNTRIES (Hodder & Stoughton 1985); and additional materials available from the CEQ, including Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, infra note 27. For an example of the process of preparing an Environmental Impact Statement, see, e.g., COUNCIL ON ENVIRONMENTAL QUALITY, THE EXECUTIVE OFFICE OF THE PRESIDENT, and ENVIRONMENTAL LAW SECTION OF THE NEW YORK BAR ASSOCIATION, ENVIRONMENTAL IMPACT ASSESSMENT, PROCEEDINGS OF A CONFERENCE ON THE PREPARATION AND REVIEW OF ENVIRONMENTAL IMPACT STATEMENTS, West Point, New York, Nov. 1987, (1987). 1993] free to develop their own NEPA compliance procedure.11 However, agencies usually follow a standard sequence. First, the agency prepares an announcement for the Federal Register. Called the Initial Proposal (IP), the announcement describes the proposed action and invites public comments on the EIS as part of the scoping process. 12 The agency may elect any form it finds suitable for subsequent scoping sessions, including public meetings and written comments. Based on the comments received during the scoping phase, the agency prepares a list of issues to be addressed in the EIS, and usually, because of the "Hard Look Doctrine ,"1 comments on why it is not addressing certain issues. The agency then begins preparation of a draft EIS, often using a standard format recommended by the CEQ Guidelines.14 The format usually includes a cover sheet, summary, alternatives to the proposed action, a description of the affected environment, and an analysis of the environmental consequences (i.e., the negative impacts) of the proposed action. The latter section also includes an analysis of the significance of any potential impacts. The draft EIS (DEIS) is then circulated for comments and modified as appropriate in a Final EIS (FEIS). Comments on the DEIS 15 and agency responses to the comments are included in the FEIS. Finally, the agency decides which proposed action to adopt and prepares a Record of Decision (ROD). Several types of EISs are designed to view activities with a much broader framework, including environmental assessments of programs, policies or governmental plans.' 6 The entire category of broad-based assessments is the subject of this comment and will be referred to as "programmatic" assessments, a term that for our purposes will encompass generic, program, policy, planning, legislative assessments and, in 11. 40 C.F.R. § 1507.3 (1992). 12. 40 C.F.R. § 1501.7 (1992). 13. See Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976), (citing Natural Resource Defense Council v. Morton, 458 F.2d 827, 838 (1972)). 14. 40 C.F.R. § 1502.10 (1992). 15. Since in large assessments over 10,000 comments may be received, at least summaries of the comments are included in the DEIS. 16. 40 C.F.R. § 1508.18 (1992). [V'ol. 11 some contexts, tiered assessments. 17 While there is little agreement on definitions for these concepts, the most meaningful differences may be the focus of and initial reasons for conducting the assessments. As a result, for the purposes of this comment, "programmatic" simply refers to broad-scale assessments tied to a variety of functions. As with other EIS activities, programmatic EISs (PEISs) are a way to focus on environmental impacts of federal programs prior to the commitment of major funding, as well as an opportunity to consider environmental issues early in the planning process. Although there had been grudging use of the PEIS, over the past decade it has emerged as an important tool in both domestic and international situations. While there is little agreement on exactly what this programmatic assessment tool includes, many U.S. agencies and international organizations are now using these broad-based assessments in their planning process. Thus, the PEIS has become a logical extension of the environmental ethic that NEPA was designed to promote.18 Despite its increasing use, there remain major unresolved questions concerning programmatic assessments, including: What is the proper trigger for initiating a programmatic assessment by an agency? How specific must the alternative proposed actions be? How broadly must basic assumptions to the alternatives be examined? What measures will be used to assess the significance of the environmental impacts? 17. Examples of various programmatic assessments are found in the discussions in Part IV. They cover subjects specific to an agency's function such as: the Department of Defense's programmatic assessments for the Star Wars program, the Department of Energy's ongoing assessment for the clean-up of nuclear and hazardous waste; the U.S. Agency for International Development's programmatic assessment on the environmental impacts of pesticides for control of locusts and grasshoppers used in eight African countries under foreign aid programs; and the U.S. Environmental Protection Agency's review of environmental issues related to the proposed North American Free Trade Agreement. 18. See, e.g., discussion of NEPA goals in Kieppe dissent, infra note 64. 1993] How should cumulative or synergistic impacts be evaluated? In a broad-based assessment, how precisely does the affected environment, and the resulting impacts, need to be described? In the international arena, NEPA-like processes can be seen as a gift from the United States to the world. Usually referred to as environmental assessment methodologies, they have been adopted as powerful planning tools in many countries. 19 Somewhat ironically, many international institutions have leaped ahead of the United States in using the programmatic environmental assessment process. These organizations have by-passed some of the legal procedural issues specific to the United States 20 (which in some ways has hampered the United States' progress in these matters) and are simply using this tool in the way in which it was originally intended: to take a careful and systematic early look at the environmental consequences of proposed actions. While U.S. courts have sent mixed signals, at best, regarding the timing and scope of these assessments, there has been a quiet revolution within many federal agencies. Programmatic assessments are increasingly used to supplement many other planning tools. In 1990, 11 of the 394 EISs submitted were classified as programmatic assessments.2 1 While the increasing usage has been partly in response to court decisions (as discussed in Part III), it is also due to the discovery that the programmatic assessment works. There are still significant differences in the way that programmatic assessments are conducted by different agencies (as discussed in Part IV). Nevertheless, the Department of Defense (DOD), Department of Energy (DOE), Environmental Protection Agency (EPA), and the Forest Service (FS)22 routinely use programmatic assessments. Yet, some agencies, such as the Bureau of Land Management (BLM) and the Forest Service (in non-forest programs) do not see utility in the programmatic assessment. Internationally, the use of programmatic assessments is widespread and in some ways ahead of the application in the United States (as discussed in Part V). The U.S. Environmental Protection Agency (in international programs), World Bank, U.S. Agency for International Development and the United Nations Development Programme are strongly committed to the programmatic approach. Part II of this comment explores the legal background for the programmatic assessment and its interpretation in the courts. Parts III and IV examine the domestic application of these assessments by U.S. agencies. Part V discusses the use of programmatic assessments internationally. Part VI points to future uses of this powerful tool. II. NEPA Law and Regulations A. NEPA Language and the Council on Environmental Quality Guidelines NEPA defines the environmental assessment process in general and, whenever a "proposal" is made, 23 requires evaluation in an environmental impact statement of activities which may significantly affect the environment. 24 NEPA ensures mandatory and comprehensive consideration of the environmental effects caused by programs and projects conducted by U.S. agencies.25 The concept of the programmatic assessment comes from "tiering" in the CEQ Guidelines for NEPA. In general, 22. Programmatic assessments are used in National Forest programs. See infra note 258 and accompanying text. 23. 42 U.S.C. § 4332 (1988). 24. Id. 25. Coordination through public federal funding and the presence of state environmental policy acts ensures review of many state and private sector projects as well. 1993] "[algencies are encouraged to tier their [EISs] to eliminate repetitive discussions of the same issues . . . . Whenever a broad [EIS] has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy ... [it] shall concentrate on issues specific to the subsequent action."26 CEQ has prepared additional guidance on programmatic EISs and the tiering concept.2 7 A more detailed description of tiering was provided in a subsequent version of the CEQ Guidelines: Sec. 1508.28 Tiering "Tiering" refers to the coverage of general matters in broader environmental impacts statements (such as national program or policy statements) with subsequent narrower statements or environmental analyses (such as regional or basinwide program statements or ultimately site-specific statements) incorporating by reference the general discussions and concentrating solely on the issues specific to the statement subsequently prepared. Tiering is appropriatewhen the sequence of statements or analyses is: (a) From aprogram, plan or policy environmental impact statement to a program,plan, or policy statement or analysis of lesser scope or to a site-specific statement or analysis. (b) From an environmental impact statement on a specific action at an early stage (such as need and site selection) to a supplement (which is preferred) or a subsequent statement or analysis at a later state (such as environmental mitigation). Tiering in such cases is appropriate when it helps the lead agency to focus on the issues which are ripe for decision and exclude from consideration issues already decided or not yet ripe.28 The CEQ Guidelines attempt to clarify both the timing and definition of the term "proposal": "Proposal" exists at that stage in the development of an action when an agency subject to the act has a goal and is actively preparing to make a decision on one or more alternative means of accomplishing that goal and the effects can be meaningfully evaluated. 29 1. Introduction The Supreme Court, which last ruled definitively on the PEIS in 1976,30 has set a high threshold before requiring the preparation of a programmatic assessment. In considering the scope of an assessment, beyond the "Hard Look" doctrine,31 the courts defer to agency judgement as to the sufficiency of the EIS. 32 Thus, it is difficult to successfully challenge an agency's decision to forego a programmatic assessment, or a decision not to discuss a particular topic in detail. Despite the Supreme Court's lack of support for mandating the frequent and rapid use of this tool, agencies themselves are taking the initiative to use programmatic assessments in their planning process. While undoubtedly some of these actions are defensive, with some memory of the decision in Scientists' Institute for Public Information, Inc. v. Atomic Energy Commission33 (hereinafter SIPI), ongoing agency usage means that the programmatic assessment is alive and well. 29. 40 C.F.R. § 1508.23 (1992). 30. Kieppe, 427 U.S. at 390. 31. Kleppe, 427 U.S. at 390. "The only role for a court is to ensure that the agency has taken a 'hard look' at environmental consequences .... " Id. at 410 n.21. 32. See Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984). 33. 481 F.2d 1079 (D.C. Cir. 1973). 1993] 2. Timing, Scope and Judicial Review In SIPI,34 the first major case to consider when a programmatic assessment is necessary, a public interest group challenged the need for a programmatic assessment of the Atomic Energy Commission (AEC) breeder reactor program. In the early 1970s, the government made a commitment to complete the successful demonstration of a breeder reactor by 1980 and to proceed towards full-scale development at an expected cost of over $2 billion. Judge Skelly Wright of the D.C. Circuit held that an EIS reviewing the entire program was required.35 The court held that two factors needed to be considered: 36 1) the availability and extent of meaningful information on the proposed technology and its alternatives (since without such meaningful information the EIS itself would be pointless); and 2) the extent that irrevocable commitments were being made, and other options were being precluded, since such irrevocable decisions could impact the environment in the future, when it would be too late to change the decision. Applying these factors to the AEC's breeder reactor, the court concluded that the AEC "could have no rational basis for deciding that the time is not yet right for drafting an impact statement."37 The court noted that by the year 2000, some 600,000 cubic feet of high-level concentrated radioactive wastes would be generated, which would pose an admitted hazard to human health for thousands of years. The court found that this, and related environmental impacts, required "the most searching scrutiny under NEPA." Thus, the D.C. Circuit's approach was functional, looking to the purpose of the EIS rather than to a formalistic test. Because the court found that the purposes of NEPA would best be served by early preparation of an impact statement covering the entire 34. Id. 35. Id. at 1093. 36. ROGER W. FINDLEY & DANIEL A. FARBER, ENVIRONMENTAL LAW IN A NuT SHELL 37 (3d ed. 1992). 37. SIPI,481 F.2d at 1095. program, the court ruled that such an impact statement was necessary. 38 While the D.C. Circuit was elaborating NEPA requirements in SIPI, there was a debate brewing between the Supreme Court and the district courts. The Supreme Court felt that the district court judges were exceeding their discretion. For instance, in Vermont Yankee Nuclear Power Corp. v. NRDC,39 the Supreme Court held that a PEIS for a power plant's waste disposal and fuel reprocessing systems was unnecessary in addition to a PEIS for its overall operations. The role of the Court in a PEIS was, therefore, limited to procedural elements: in the absence of "constitutional constraintsor extremely compelling circumstances" a court MAY NOT impose rulemaking procedures on an agency beyond those set out in section 553 of the Administrative Procedure Act.40 Over a number of years the Supreme Court had become increasingly impatient with what was perceived by some justices as excessive free-wheeling decision-making by the D.C. Circuit. One year later, in Baltimore Gas and Electric Co. v. NRDC41, the Court left no doubt that it wanted the circuit court to leave the Nuclear Regulatory Commission (NRC) alone, and to "sit down and shut up."4 2 With this history of disagreement, 43 the Supreme Court took a much different approach to the issue of "programmatic" impact statements when it considered the first of three cases involving scope and timing issues. The first case was Aberdeen & Rockfish Railroad Co. v. Students Challenging Regulatory Agency Procedures4 [hereinafter SCRAP III. After the Supreme Court upheld the plaintiffs standing, the case was remanded to the district court to rule on the merits. 38. FINDLEY & FARBER, supra note 36, at 38. 39. 435 U.S. 519 (1978). 40. Id. at 543. 41. 462 U.S. 87 (1983). 42. WILLIAM F. Fox, JR., UNDERSTANDING ADMINISTRATIVE LAw 135 (1986). 43. Its disagreement with the circuit courts' decision was not explicitly mentioned by the Court in its decision. 44. 422 U.S. 289 (1975). 1993] The district court held that the Interstate Commerce Commission (ICC) had failed to comply with NEPA. The Supreme Court reversed on appeal: Under... the statute, the time at which the agency must prepare the final "statement" is the time at which it makes a recommendation or a report on a proposal for federal action. Where an agency initiates federal action by publishing a proposal and then holding hearings on the proposal, the statute would appear to require an impact statement to be included in the proposal and to be considered at the hearing. Here, however, until the October 4, 1972, report, the ICC had made no proposal, recommendation, or report. The only proposal was the proposed new rates filed by the railroads. Thus, the earliest time at which the statute required a statement was the time of the ICC's report ....45 In order to decide what kind of an environmental impact statement need be prepared, it is necessary first to describe accurately the "federal action" being taken.46 Having defined the scope of the "federal action" being taken ... our decision of this case becomes easy. 47 The test emerging from SCRAP II is that the determination of the timing and scope of an EIS is based on the identification of the specific action proposed. "The EIS is due at the same time, and not before, the proposal is issued. Moreover, the scope of the EIS is simply determined by the scope of the proposal itself. It is the scope, impact and alternatives to that proposal that must be discussed, not some broader set of issues."48 Three years later, in Kleppe v. Sierra Club,49 the Supreme Court clarified and broadened the test for scope and timing issues developed in SCRAP I. Kleppe involved the leasing of coal reserves on public lands to private mining companies. The Sierra Club alleged that an individual leasing proposal within a large area identified as the "Northern 45. Id. at 320-21 (footnote omitted). 46. Id. at 322. 47. Id. at 326. 48. FINDLEY & FARBER, supra note 36, at 40. 49. 427 U.S. 390 (1976). Great Plains regions" required a single EIS evaluating the potential interrelated environmental effects on the entire region.50 Applying the test developed in SIPI,51 the D.C. Circuit agreed and held for the plaintiff. The Supreme Court disagreed with the lower court's creation of a balancing test when the plain language of the statute requires an EIS only where a report on a formal proposal for major federal action has been made. 52 The Court concluded that as there was no proposal for regional action, no regional EIS was necessary.5 3 Thus, the Court decided that without an "action" (in the sense of a Federal action specified in NEPA,) there was nothing to trigger an EIS. The Court also found flaws in Sierra Club's argument that individual mining operations had inter-related environmental impacts on the region. The Court observed that if Sierra Club's argument was construed as "an attack on the sufficiency of the EIS's already prepared by the government on those projects already approved," 54 then, as such, it was not an issue properly before the court, "since the case was not brought as a challenge to any particular EIS."55 However, in so far as the "argument could also be viewed as an attack on the decision not to prepare one comprehensive impact statement on all proposed projects in the region,"56 the Court seemed to agree with the plaintiff.57 "The Court conceded that when several proposals are pending before an agency at the same time, and when those proposals have cumulative or synergistic environmental impacts, their environmental consequences must be considered together."58 50. Id. 51. See infra note 63 and accompanying text. 52. Kleppe, 427 U.S. at 41. 53. Id. at 404-05. 54. FINDLEY & FARBER, supra note 36, at 41-43. 55. Id. 56. Id. 57. Indeed, the attorney for the plaintiffs, Bruce J. Terris, saw this as a great victory. Interview with Nicholas Yost (Jan. 6, 1993) (on file with Pace EnvironmentalLaw Review). Nicholas Yost is an attorney extensively involved in preparation of CEQ Guidelines, now active in litigation in this area. 58. Kieppe, 427 U.S. at 409-10 (quotedin FINDLEY & FARBER, supra note 36, at 42). 1993] Unfortunately, this position was undermined by three serious qualifications. "First, the Court indicated in dicta that this consideration could be made as part of the issuance of the individual EIS governing each site. That is, a discussion of the general project could be tacked onto the EIS about each specific mine." 9 In essence this was a reverse tiering concept that might be adapted from the CEQ discussion of tiering. 60 Second, the Court gave deference to the agency's decision and held that the arbitrary and capricious standard applied to the synergism issue.61 "So long as the agency does not act arbitrarily in deciding on the scope of the impact statement, the Court held that judicial interference was inappropriate." 62 This was the situation in the present case. Third, the Court rejected the four-part balancing test relied on by the D.C. Circuit as a unjustified judicial interpretation of NEPA.63 Thus, Kleppe can be viewed as allowing, even requiring, a programmatic assessment, while at the same time establishing a very high threshold before the courts will intervene in forcing an agency to prepare one. In his dissent to this opinion, Justice Marshall argued that the Court should intervene in requiring an environmental impact statement early in the planning process: [A]n early start on the statement is more than a procedural necessity. Early consideration of environmental consequences through production of an environmental impact statement is the whole point of NEPA, as the Court recog59. FINDLEY &FARBER, supranote 36, at 42 (referring to Kleppe, 427 U.S. at 410). 60. See supra note 26 and accompanying text. 61. Kleppe, 427 U.S. at 410, 412. See particularly id. at 410 n.21. This second criticism was suggested by FInDLEY & FARBER, supra note 36, at 42. 62. FINDLEY & FARBER, supra note 36, at 42. 63. This balancing test, put forth in SIPI, 481 F.2d at 1079, was used to determine the ripeness of the issues. In that case the court required an EIS covering the entire research and development program for the Liquid Metal Fast Breeder Reactor. The four factors are: 1) whether commercial implementation of the technology involved was more than speculative, 2) to what extent "meaningful" information on the environmental impact of development of the program existed, 3) to what extent irretrievable commitments of resources were taking place in the program, and 4) the severity of the anticipated environmental effects of the program. 481 F.2d at 1096-98. nizes. The legislative history of NEPA demonstrates that "(b)y requiring an impact statement Congress intended to assure (environmental) consideration During the development of a proposal .... " [Keppe], at 409 (emphasis added). Compliance with this duty allows the decision maker to take environmental factors into account when he is making decisions, at a time when he has an open mind and is more likely to be receptive to such considerations. Thus, the final impact statement itself is but "the tip of an iceberg, the visible evidence of an underlying planning and decision-making process that is usually unnoticed by the public." Sixth Annual Report, Council on Environment Quality 628 (1975). Because an early start in preparing an impact statement is necessary if an agency is to comply with NEPA, there comes a time when an agency that fails to begin preparation of a statement on a contemplated project is violating the law. It is this fact, which is not disputed by the Court today, that was recognized by the Court of Appeals and that formed the basis of its remedy. The Court devised a four-part test to enable a reviewing court to determine when judicial intervention might be proper in such cases. 64 The commentary following the Kleppe decision was abundant, and mostly negative. 65 Two criticisms of the decision are that the mechanistic test established by the Court does not support the underlying purposes of NEPA,6 6 and that the decision does not provide specific guidance as to what constitutes a definitive proposal within the complex administrative process.6 7 The Kleppe test surfaced again in a third case of NEPA programmatic assessments. In Weinberger v. CatholicAction 68 of Hawaii: The issue before the Court was how to apply the EIS requirement when the government's action involved classified information. Specifically, the government established "nuclear capable" storage facilities, but would neither admit nor deny (for security reasons) that nuclear weapons were actually stored there. The Court held that if nuclear weapons were indeed stored at the facilities, an EIS had to be prepared, but his duty was not judicially enforceable. The plaintiffs were unable to prove the existence of a specific proposal to store nuclear weapons (because any such proposal would be classified): hence, under Kleppe, they were unable to prove that an EIS was required. Consequently, the suit was dismissed for the plaintiffs' failure to prove their cause of action, but with an admonition to the agency that a classified EIS had to be prepared if the military actually was storing nuclear weapons. Thus, both the need for an EIS and the actual contents of the EIS were committed solely to the agency's discretion. 69 67. FINDLEY &FARBER, supra note 36, at 41-45: In fact, however, there is no talismanic significance to the word "proposal". The SIPIcase is a good illustration. In the course of the development of the breeder reactor project, there were probably dozens and perhaps even hundreds of major memoranda prepared by various agency officials either sketching possible courses of action or attempting to evaluate those courses of action. Some reports are made at higher levels within the agency than others, and some seem to reflect a more definitive disposition of the issues than others. Nevertheless, no bright line divides those memoranda which are merely evaluations of possible courses of action from those which constitute "recommendations or reports on proposals for action," to use the statutory language. 68. Weinberger v. Catholic Action of HawJPeace Educ. Project, 454 U.S. 139 (1981). 69. FINDLEY & FARBER, supra note 36, at 45-46. Since that case, CEQ has attempted to summarize the court's holdings in the CEQ Guidelines and has defined "proposal" as noted above. This definition essentially captures the functional approach used in SIPI but restates that test in terms of the Supreme Court's emphasis on the determination of whether a "proposal" exists. Other CEQ regulations make it clear that the EIS should be "prepared early enough so that it can serve practically as an important contribution to the decision-making process, [and not simply] to rationalize or justify decisions already made." 70 The CEQ regulations also require the EIS to consider connected, cumulative and similar actions together.71 This seems to reflect an expansion on the Kleppe test by requiring agencies to consider other foreseeable actions, even if there has been no formal proposal on those actions. While it remains to be seen whether the CEQ regulations, if they remain in effect, will be successful in liberalizing the Kleppe approach from the view of the Court, they have been relied upon by agencies to justify creation of programmatic documents. Consistent with the Supreme Court's position in Kleppe, the D.C. Circuit has refused to require the preparation of a PEIS for animal productivity research on the grounds that the products of the research were too diverse and discrete to constitute either major federal action, or activities sufficiently systematic and connected to require a programmatic EIS under the CEQ Guidelines. 72 More importantly, it concluded that NEPA was not a suitable vehicle and was not intended to resolve fundamental policy disputes. 73 In a companion case, the D.C. Circuit suggested that standing under NEPA based solely on a lack of desired information was inappropriate, but decided the case on other grounds.74 Legislative Environmental Impact Statements (LEISs) 75 were reviewed in NRDC v. Lujan.76 Plaintiffs challenged the legal adequacy of the LEIS prepared by the Department of the Interior as a statutorily-required report to Congress regarding the potential for oil and gas development and future management of the coastal plain of the Arctic National Wildlife Reserve (ANWR). The D.C. District Court ruled that the plaintiffs had standing, but gave deference to the agency and found that the agency determination was not judicially reviewable. However, the court determined that a draft supplemental EIS (on oil and gas potential) would be required. Most importantly, the court ruled that the requirement for an adequate EIS for pending legislation "[c]ould be enforced by a private right of action."77 Of course, an agency may decide to prepare an EIS for a broad program.78 The Forest Service did just that in City of Tenakee Springs v. Clough,79 in which it examined impacts from a fifty-year-old timber sale contract between the Forest Service and Alaska Pulp Corporation for logging in the Tongass National Forest. The plaintiffs challenged the supplemental operation plan EIS for inadequate analysis of cumulative impacts.8 0 They claimed that by disaggregating its analysis (i.e., by segmenting the impact assessments) to an area-by-area study, the Forest Service had violated NEPA by failing to study the impacts on the whole contract area over future contract years.81 The Tongass Land Management 75. "A Legislative Environmental Impact Statement is the detailed statement required by law to be included in a recommendation or report on a legislative proposal to Congress. [An LEIS] shall be considered part of the formal transmittal of a legislative proposal to Congress .... " 40 C.F.R. § 1506.8 (1992). 76. 768 F. Supp. 870 (D.D.C. 1991). 77. Lujan, 768 F. Supp. at 870 (quoting Atchison, T. & S.F. Ry. v. Callaway, 431 F. Supp. 722, 728 (1977)). 78. 40 C.F.R. § 1502.4(b) (1992). 79. 915 F.2d 1308 (9th Cir. 1990). In a previous case, City of Tenakee Springs v. Block, 778 F.2d 1402 (9th Cir. 1985), the court held that large scale plans for regional development required both a programmatic EIS on the management plan and site-specific EISs for specific activities. 80. City of Tenakee Springs v. Clough, 915 F.2d 1308, 1312 (9th Cir. 1990). 81. Id. at 1312-13. agency adopted the use of a programmatic assessment for areas, like biodiversity, which have not been accorded proper attention. Several agencies view programmatic assessments as useful in recognizing the limitations of science at a particular time. Environmental assessments need to incorporate a feedback loop that recognizes this fact. This de-emphasizes the importance of prediction based on limited information and emphasizes the incorporation of new information through monitoring. This process is called adaptive management.218 The strongest proponents of the programmatic assessment view it as a part of establishing an environmental ethic in an agency. Since the early days of NEPA there has been much debate on the scope of the programmatic EIS.219 "NEPA is an ethic," says USEPA.220 This position is supported by language in NEPA stating that "all agencies of the Federal Government shall utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design areas in planning and in decision-making which may have an impact on man's environment ..... 221 The legislative history also calls for integration of environmental analysis and values into the activities of the Federal Government. 222 Many are concerned about conflicts between the NEPA process and its purpose: "The emphasis seems to be upon compliance with procedural requirements of NEPA rather than with its underlying purpose of improving protection of the environment."223 The Sierra Club wants to see comprehensive detail as much as possible and is concerned about "the tyranny of small decisions."224 It is essential to develop a programmatic and regional view.225 In summary, this position argues that assessments should be done as early as possible in the process, and should be on par with other considerations (economic, technical, etc.). It is only in this way that environmental factors can be considered early in the process before irrevocable actions have been taken. The benefits of a programmatic environmental assessment include: 1) it is a useful tool to settle difficult issues before an agency, including political as well as scientific issues; 2) it saves resources over preparing a large number of small EISs by the use of tiering; 3) it forces including matters which would be left out in a less-than-programmatic assessment, such as biodiversity, that by their nature can only be done in a cumulative assessment; and, 4) it forces the further development of an environmental ethic that gets to the basic purpose of NEPA. IV. NEPA as Applied by the United States Government A. Introduction In this section, case studies of application of NEPA policies by U.S. agencies are explored. B. NEPA at the Department of Defense 1. Strategic Defense Initiative Under the Strategic Defense Initiative, the Department of Defense (DOD) had to grapple with many programmatic issues, including: 1) which issues were ripe for decision-making in the Research and Development program?; 2) what should the timing of environmental assessments (i.e., is an EA performed at the beginning of a research and development program or at the implementation of the research)?; and, 3) what role should the programmatic assessment play? 224. Hirsch Memorandum, Atlanta Conference, supra note 155 (discussing comments by Robert Drehr, The Sierra Club). 225. Id. 1993] DOD's position is that it wants 100% environmental compliance, including compliance with NEPA.22 6 It views NEPA as the heart of its decision-making process. 227 The Strategic Defense Initiative Organization (SDIO),228 popularly known as the "Star Wars Program," has completed a framework for activity based on NEPA.22 9 Two major components of the program are environmental planning and environmental documentation. The DOD plans to prepare a programmatic EIS for that program as part of the Full Scale Development (FSD) decision-making. 230 This is intended to allow for tiering as operations become more specific (siting, etc.). 23 1 Some items will be eliminated for consideration through categorical exclusions, 23 2 while other aspects will be explored through environmental assessment and environmental impact statements. 23 3 There has been considerable dialogue be226. See, e.g., JAMES A. MILLER, MOVING TOWARD A COMPREHENSIVE AND LONG-TERM DEPARTMENT OF DEFENSE ENVIRONMENTAL STRATEGY: THE REPORT OF THE FORUM ON OUR NATIoN'S DEFENSE AND THE ENVIRONMENT 17-18 (1990). 227. Id. at 15. 228. By way of background, DOD has divided the program into three parts: theater missile defense, which are short-range, land-based weapons (such as Patriot missile); global protection of G.Pals defense, which are nuclear, landbased, intermediate range missiles; and Space-Pal, which are long-range, atmospheric defenses (such as brilliant pebbles). DOD differentiates Star Wars programs from brilliant pebbles. DOD committed itself to preparing a PEIS for the theater missile defense program, which has already been completed. DOD began by preparing a programmatic EIS for the R and D for EPTAR program, which is the Environmental Program Technical Report (apparently based on a 1987 memo between CEQ and SDIO, which set a working agreement, but which no one has been able to locate) . EAs are done for the framework of the program, not individual programs. 229. STRATEGIC DEFENSE INrrIATIVE ORGANIZATION, U.S. DEP'T OF DEFENSE, STRATEGIC DEFENSE INITIATIVE: ENVIRONMENTAL IMPACT ANALYSIS PROCESS FRAMEwoRK (1987). 230. Adam R. Lipinski, Exit Criteria, Environmental Requirements (Jan. 28, 1991) (unpublished manuscript, on file with the Pace EnvironmentalLaw Review). "The programmatic environmental analysis will begin immediately after Milestone I, Concept Demonstration Approval, in accordance with Title 40, Code of Federal Regulations, and Executive Order 12114." Id. (quoting DODI 5000.2 § 6(d)). 231. Id. 232. Id. Categorical exclusions are authorized for NEPA in 40 C.F.R. § 1508.4. 233. Lipinski, supra note 230. tween DOD and CEQ about the timing of the programmatic assessment. As in the SIPI case, CEQ argues that delaying a programmatic assessment until FSD would mean performing the PEIS at a point where "[u]nder the current schedule no PEIS is contemplated prior to billion dollar expenditures for the six demonstration and validation ("Dem-Val") technologies."23 4 DOD had been alerted earlier by the Department of Justice (DOJ) that EAs alone for the Dem-Val technologies failed to consider cumulative effects, or "general parameters of the SDIO program" 23 5 and that "[in the event that these problem areas are not addressed, we [the DOJ] believed that SDIO runs a significant risk in any environmental challenge brought in the district court."236 DOD committed itself to "specific clarifications" in response to these memos.23 7 For the DOD, there are five basic triggers for a programmatic document: 1) an irretrievable commitment of resources; 2) the elimination of alternatives; 3) if the action harms the human environment; 4) if the action has commercial or military feasibility; and, 5) if meaningful information exists concerning the environmental impacts of the proposal and its alternatives. 238 DOD is also considering using legislative EISs. In this approach a draft programmatic EIS is prepared and forwarded to Congress along with a proposal for legislation, such as a request for funding of a military project. DOD notes that the congressional hearing can substitute for the normal public participation process. The congressional committee can accept the EIS or require a full EIS process, which might include public hearings, comments and production of a final EIS. 23 9 DOD is still struggling with how to approach the question of significance in its PEIS process. 240 For the preparation of a programmatic EIS, DOD has established a formal set of required support documentation, most importantly a Decision of Proposed Action and Alternatives (DOPAA).24 1 Environmental impacts will be considered in light of the applicable federal Environmental analysis will begin at the earliest possible time. (a) The initial environmental analysis will look at the entire life cycle of the program. Environmental effects will be identified in detail adequate to be integrated with economic and technical analyses. (b) During Phase 0, Concept Exploration and Definition, the potential environmental effects of each alternative will be assessed. Substantial potential effects 239. Id. See also Lt. Col. Rich Ritter, U.S. Air Force, Strategic Defense Initiative Environmental Planning Strategy Decision Brief (Apr. 16, 1991) (on file with the PaceEnvironmental Law Review). 240. CH2M Hill, Analytic Approach: Theater Missile Defense PEIS (Sept. 2, 1991). 241. The full set includes the Research DOPAA, Research EIS, EA, Findings of No Significant Impact, Programmatic DOPAA, Programmatic EIS and Record of Decision. Lipinski, supra note 230. 242. Lipinski, supra note 230. Specifically: Clean Air Regulations, Clean Water Regulations, Noise Level Guidelines, Archaeological and Historic Preservation Regulations, Endangered and Protected Species Regulations (Wildlife and Vegetation), Special Use Areas (Farmland, Flood Plains, Coastal Zone, Wetlands Protection Regulations), and Hazardous Material Discharge and Clean-Up Regulations (CERCLA/SARA/RCRA). DOD internal regulations include: DODD 4210.15 (Hazardous Material Pollution Prevention), DODD 5000.1 (Defense Acquisition), DODD 5000.2 (Defense Acquisition Management Policies and Procedures), DODD 6050.1 (Environmental Effects in the United States of DOD Actions), DODD 6050.9 (Chlorofluorocarbons (CFCs) and Halons), DODD 6055.9 (The DOD Explosive Safety Board), DODD 6090.1 (Environmental Considerations in DOD Acquisitions). Lipinski, supra note 230. Cumulative impacts will be considered as well. DOD, Analytic Approach; Theater Missile Defense Programmatic Environmental Impact Statement (Sept. 1991) (this document also discusses in greater detail how each federal law will be considered in the evaluation). noted in this initial analysis will be integrated into the assessment of each alternative. 243 According to the DOD, a programmatic EIS: 1) To look to when the system being researched and developed will be fully operational; 2) To inform the program manager of potential environmental impacts from deployment; 3) To evaluate generic types of geographic areas for site candidates (without looking at specific site locations for deployment); 4) To evaluate known impacts and to identify areas of uncertainty (without revealing every impact from every operation of the program); 5) To incorporate a tiered document approach, which allows evaluation of a program at the conceptual level by projecting current understanding of the technology on the 244 environment. This methodology was recently used to describe the matic EIS.2 45 SDIO program in the Kinetic Energy Anti-Satellite Program NEPA at the Department of Energy (DOE) In the Clean Coal Technology Demonstration Program (CCTDP) programmatic assessment, 246 the PEIS discusses the potential environmental consequence of the widespread 243. Lipinksi, supra note 230 (quoting DODI 5000.2 § 6(d)). 244. Lipinski, supra note 230. Another perspective on the functions of a programmatic EIS is found in Memorandum from William H. Carroll, General Counsel, SDIO, U.S. Dep't of Defense, to Director, Engineering Support, SDIO, U.S. Dep't of Defense (Dec. 14, 1989), which mentions that the main function is to demonstrate compliance with the criteria established in the SIPI case. See supra notes 42-43 and accompanying text. 245. U.S. Army Strategic Defense Command, Draft Description of Proposed Action and Alternatives, Kinetic Energy Anti-Satellite Programmatic Environmental Impact Statement (Jan. 18, 1991) (on file with Pace EnvironmentalLaw Review). 246. DOE/EIS-0146: Final Programmatic Environmental Impact Statement (PEIS). 1993] commercialization (through private sector) of the CCTDP, once that program is shown to be viable. DOE is conducting a programmatic assessment in order to decide on specific proposals during the selection process. The CCTDP involves at least five solicitations for projects, each with individual objectives. While it was primarily directed at demonstrating technologies that could overcome impediments to increased use of coal created by the problems of acid rain, it was also designed to analyze the bigger question of the use of technical, environmental, economic, and operational information to confidently screen technologies in proposals. The PEIS also considered the relationship of the proposed action to federal energy policy. The PEIS was also used by DOE to consider coordination with other regulatory requirements under the Clean Air Act and the Clean Water Act. This PEIS, which took one year to complete, was available as a draft to the public on July 7, 1989 (notice of availability publicized in the Federal Register on July 14, 1989) . According to DOE, the Final PEIS, issued on November 1989, was intended to comply with CEQ regulations as well as DOE NEPA guidelines. 247 It appears to be a successful example of using the NEPA process. It went through elements of review, public involvement, and alternatives analyses. DOE plans to use tiering with site-specific EISs. 248 Nuclear and Hazardous Waste Cleanup Programs The DOE Office of Environmental Restoration and Waste Management is preparing a PEIS for the activities proposed in the Environmental Restoration and Waste Management Five-Year Plan. 249 This plan represents the cornerstone of the current strategy to develop plans for cleaning up DOE's nuclear-related waste sites and to bring its aging facilities into compliance with current environmental laws and regulations. The Office of Environmental Management was established to consolidate responsibilities and to accomplish 247. Id. 248. Id. 249. 55 Fed. Reg. 26,744 (1990). the DOE's objective to have all of its facilities cleaned up and in compliance with all applicable environmental laws and regulations by the year 2019. This project is a major undertaking because of the large and complex problems associated with nuclear waste. Not only must the PEIS consider technical competence and the role for new innovative technologies, but also economic resources needed to undertake a clean-up that has been compared in size to the USEPA Superfund program. Major components of the program are: 1) work associated with the restoration of old or existing waste sites; 2) planning for the treatment, storage and disposal of current or future wastes; 3) planning for decontamination and decommissioning of nuclear facilities; and, 4) planning for the role of new technologies in the clean-ups. The program encompasses both hazardous and nuclear waste. The PEIS is also designed to address all essential issues on a national basis that have been identified by the public and other interested federal agencies have identified. There have been major issues raised about the appropriate scope of issues addressed in this PEIS. In fact, it has been charged that DOE officials "viewed the EIS [process as an obstacle to be overcome rather than a useful decision-making tool."250 DOE documentation is extremely difficult to understand for the lay person and thus effectively excludes most public comments. 251 It has been argued that the PEIS should include most, if not all, of DOE facilities. 252 At the present time, the PEIS excludes consideration of high level waste repositories at the Waste Isolation Pilot Plant and the Yucca Mountain facility, as well as Naval Nuclear Facilities. 253 After these criticisms and a series of public hearings on the 250. Dan W. Reicher, NRDC, Regarding the Scope of the Programmatic Environmental Impact Statement on the Department of Energy's Proposed Integrated Environmental Restoration and Waste Management Program 5 (Washington, D.C., Feb. 7, 1991) (unpublished, on file with the Pace Environmental Law Review). 251. Id. at 16 ("DOE's EIS's are sometimes so indecipherable as to effectively classify an unclassified document"). 252. Id. 253. Id. PEIS, DOE prepared a series of implementation plans for the EIS.254 At this time the implementation plan has not been finalized, nor have the substantive issues been settled for this program. Fuel Use Act In the Fuel Use Act PEIS,255 the DOE examined environmental impacts of the Powerplant and Industrial Fuel Act of 1978,256 relevant to issuing regulations to implement the Act. The main issue was of the consequences of employing fuel sources other than petroleum and natural gas fuels for larger energy production facilities in the U.S., essentially coal. This assessment was programmatic, with a plan to tier to site-specific activities by preparing appropriate EISs. The "No Action" alternative was to consider the use of no regulatory program. Some have called this PEIS a legislative programmatic impact assessment. As a result of the PEIS, DOE completed rules for the program in 1979. NEPA at the U.S. Forest Service (Department of Agriculture) The Forest Service NEPA implementation procedure is found in Chapter 1950 of the Forest Service Manual and in section 1909.15 of the Forest Service Handbook.257 Within the agency, the trend is toward using programmatic documents for forest plans. 258 Site-specific tiering decisions are made according to the Ninth Circuit's threshold which is at the point at which an "agency proposes to make an 'irreversible and irretrievable commitment of the availability of resources to a project at a particularsite.'" 259 The Forest Service is incorporating NEPA into its basic decision-making process. 260 It plans to coordinate all resources within a national forest through an inter-disciplinary analysis. This has led to a "new art form in the use of tiered assessment."261 In response to increasing scrutiny of Forest Service decisions and increasing legal requirements placed on agency decision-making, the Forest Service consolidated its authority at higher levels and standardized its procedures. 262 In some instances, agency ingenuity has been applied to devise means of avoiding NEPA,263 rather than to integrate the Act into daily management and planning; one commentator claims that this ingenuity has been used by the Forest Service to create case-by-case categorical exclusions. 264 Together with other "government in the sunshine" legislation,265 NEPA challenged the hegemony of agency experts, democratizing agency decision-making by encouraging public and inter-agency participation. 259. California v. Block, 690 F.2d 753, 761 (9th Cir. 1982) (citing Sierra Club v. Hathaway, 579 F.2d 1162, 1168 (9th Cir. 1978)) (emphasis added). One of the commentators adds, from his experience with the Forest Service, an analysis for the need of future goals: To the extent that a forest plan makes programmatic decisions, the accompanying EIS need not be site specific. To the extent that a forest plan makes a final commitment of resources at a particular site, the accompanying NEPA analysis must be site specific which most forest plans are not .... If forest plans are not site specific, there must be site specific NEPA analysis at some later decision point. Ackerman, supra note 258, at 721. 260. Ackerman, supra note 258, at 719. 261. Interview with William Dickerson, Office of Federal Facilities, USEPA, at Washington, D.C. (Jan. 8, 1993). 262. Ackerman, supra note 258. 263. Myron L. Scott, Defining NEPA Out of Existence: Reflections on the Forest Service Experiment with "Case-by-Case" Categorical Exclusion, 21 ENVrL. L. 807 (1991). 264. Id. 265. See, e.g., 5 U.S.C. § 552b. As discussed previously, 266 with respect to the Forest Service, the NEPA case law is characterized by a recurring tension between the need for judicial scrutiny and the venerable concept of deference to agency decision. One line of NEPA cases emphasizes the judicial as well as the "Hard Look" doctrine, and the need for strict procedural compliance; the second line of NEPA cases emphasizes deference to agency expertise and agency discretion to formulate procedures and establish decisional agenda. 26 7 Agencies are usually given full authority to tier studies,268 but cannot avoid detailed analysis of the site-specific and cumulative impacts of proposed action by tiering onto the general discussion in a programmatic EIS.269 In one case, the Forest Service sought to avoid detailed cumulative impact analysis of multiple timber sales by tiering to the general discussion in the programmatic EIS for the Logging Management Plan (LMP), and by deferring analysis of site-specific impacts to individual timber sales.270 The Agency characterized the Seven-Year Action Plan, which contained a schedule of seventy-five timber sale offerings, as a non-action for NEPA purposes, despite the fact that it had begun consummating the sales. 271 The Agency said that this was not a federal action, but only a "flexible planning schedule."272 The district court rejected this attempt to completely ignore NEPA, and required a cumulative impact EIS.273 266. See supra text accompanying notes 13, 31, and 32. 267. See D. MANDELKER, NEPA LAw AND LITIGATION §§ 8:11-8:13 (1984 and Supp. 1989). 268. See, e.g., Ventling v. Bergland, 479 F. Supp. 174, 179-80 (D.S.D. 1979) . 269. See, e.g., National Wildlife Federation v. U.S. Forest Service, 592 F. Supp. 931, 941 (D. Or. 1984); Southern Or. Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1480 (9th Cir. 1983). 270. National Wildlife Federation,592 F. Supp. at 939-41. 271. Id. at 939. 272. Id. 273. Id. at 942. NEPA-Like Devices at International Institutions Introduction This section examines the wide-spread use of programmatic "NEPA-like" devices in the international context. As mentioned earlier, the term "NEPA-like" refers to environmental assessment processes that are similar in some fashion to the systematic examination of environmental impacts 274 of an action under NEPA. In many cases, the U.S. government has been a party to planning the assessment methodology, or international institutions have created devices based on NEPA.275 Use by Economic Commission for Europe The Environmental Impact Assessment process in the Economic Commission for Europe has been influenced by: 1) the convention on Environmental Impact Assessment in a Transboundary Context;276 2) the Charter of Paris for a New 274. Within the international community, the terms "environmental assessment" and "environmental impact assessment" are used instead of Environmental Assessment or Environmental Impact Statement as defined under NEPA. There is little consistency in the scope of a study associated with these terms in an international context. 275. See, e.g., KE. Lemons & Alan L. Porter, A ComparativeStudy of Impact Assessment Methods in Developed and Developing Countries, IMPACT AsSESSMENT BuLL., vol. 10 no. 3 (1993). 276. Prepared under the auspices of the United Nations Economic Commission for Europe ("ECE") and signed in 1991 in Espoo, Finland. This convention has now been signed by representatives of 27 countries and the ECE. It stipulates the rights and obligations of parties to carry out the assessment of environmental impacts and to arrange for the application of the assessment at an early stage of planning for certain activities likely to cause adverse transboundary impacts. It provides for establishing procedures in an international setting, and establishes the principle that the assessment be done at an early stage of planning: 7. Environmental impact assessments as required by this Convention shall, as a minimum requirement, be undertaken at the project level of the proposed activity. To the extent appropriate, the Parties shall endeavor to apply the principles of environmental impact assessment to policies, plans and programmes. Convention on Environmental Impact Assessment in a Transboundary Context, art. 2(7), 1992 O.J. (C 104) 5, 8. Europe;2 7 7 3) the European Community Directive;2 78 and, 4) the conclusions of the United Nations World Commission on Environment and Development. 27 9 In some countries these assessments may be initiated or developed at the highest level of government, while in others it is at lower levels of government (i.e., planning authorities, provincial or municipal governments). Legal systems have been established for environmental impact assessment of policies, plans and programs in at least twenty countries. 28 0 The Senior Advisors on Environmental and Water Problems of the United Nations Economic Commission for Europe (UNECE) approved a proposal for a task force to study the application of the principles of environmental impact assessment to policies, plans and programs. 2 8 ' Through consideration of a series of case studies, it conducted an evaluation following a process similar to NEPA. 28 2 The group recommended that the systematic evaluation of policies, plans and programs were as important to the decision-making as to the assessments at the project level: A well prepared and timely environmental assessment of policies, plans, and programmes can anticipate and highlight potential environmental problems, prevent delays, assist in long-term planning, and prevent or simplify litigation .... [I]t ensure[s] that environmental concerns are fully incorporated into decision making.283 The recommended trigger for the process would be a provision (possibly legislated) for this review and it would flow from some formalized process such as a mandatory list or screening mechanism. 28 4 The tests for significance would include most of the elements of the U.S. NEPA process, including examining cumulative and synergistic effects. 285 The case studies reviewed by the group were on large programs and covered eight countries. 286 The conclusions were summarized as follows: mechanisms for environmental Policies, Plans, and Programmes (1993) (unpublished draft, on file with the Pace EnvironmentalLaw Review). 282. The group accepted the following procedural elements: initiation of assessment, scoping, outside review, public participation, documentation and information, decision making, and post-decision making analysis (monitoring). Id. 283. Id. 284. Id. 285. Id. 286. These were: Ontario Hydro 25-Year Energy Plan (Derived from a Review of Several Federal and Provincial Plans) (Canada); Preliminary Screening Document for the Prairie Habitat Joint Venture, North American Waterfowl Management Plan (Canada); Ecosystem Approaches in Water Management (Czechoslovakia); The Kangasala Project: EIA Principles in Operational and Economic Planning on Municipal Administration (Finland); Environmental Impact Assessment in Local Development Planning (Federal Republic of Germany); Second Provincial Waste Plan II Utrecht (the Netherlands); Opening of the Barents Sea South, Troms II, Troms III and the Southern Part of Finnmark West for Petroleum Activities, Impact Analysis (Norway); Increased Environmental Awareness in Road Planning and Design (Sweden); Final Programmatic Environmental Impact Statement, Clean Coal Technology Demonstration Programme (United States); and Final Environmental Impact Statement: Fuel review differ by country, ranging from an internal cabinet review in Canada, broad environmental statutes in the U.S. and the Netherlands, and authorization in a specific act (e.g. the Petroleum Act of Norway). The public is frequently not involved. Special evaluation issues included: 1) how to conduct assessments for low probability/high consequence events (dam failure is the classic case);28 7 2)technical and regulatory uncertainties; 3) assessing cumulative impacts; and, 4) external policy constraints. 288 World Bank At the World Bank, programmatic assessments per se do not exist by that name. However, the Environmental Action Plans and the Environmental Assessments 28 9 function in an equivalent role. Most recent environmental assessment processes at the World Bank follow a mandatory review by the World Bank Executive Director, who is appointed by the U.S. and bound to consider environmental consequences of World Bank programs. Environmental Action Plans are efforts by the World Bank to comprehensively consider environmental consequences of programs within specific geographic areas like large cities. 290 Sectoral studies seek consistency in funding programs in specific sectors, such as forestry and water supply.291 The World Bank has prepared detailed guidelines for conducting environmental assessments at a technical Use Act (United States). U.N. ECONOMIC COMMISSION FOR EUROPE, supra note 280. 287. See, e.g., NATIONAL RESEARCH COUNCIL, SAFETY OF EXISTING DAMS, EVALUATION AND IMPROVEMENT (1983). 288. See supra note 279. 289. THE INTERNATIONAL BANK FOR RECONSTRUCTION AND DEVELOPMENT/THE WORLD BANK, THE WORLD BANK AND THE ENVIRONMENT FISCAL 1992 (1992). 290. Supra note 287. See alsoNew Directive on EnvironmentalAction Plans, ENV'T BULL. (Env't Dep't, World Bank, Wash., D.C.), Fall 1992, at 8. 291. Supra note 289. level.292 The NGO community has prepared explanatory information intended for lay audiences. 293 These processes are too new to be able to evaluate their success in controlling environmental impacts of programs, or in successfully trading off between conservation and development pressures. D. NEPA at the U.S. Agency for International Development (USAID) Each agency of the U.S. government is free to develop its own NEPA procedures. USAID created Regulation 216294 under which the agency defines several categories of actions for which environmental impacts are expected (the black list), not expected (white list) or for which further analysis will be necessary (the gray list). There is no requirement for a programmatic assessment under these regulations. Nevertheless, a PEIS is performed in two major areas: in subject areas where USAID finds such an assessment is warranted 295 or when an Environmental Impact Assessment (EIA) is required. In the latter case, the regulations require an EIA only when a program has international and widespread potential consequences. 296 An EIA then serves functionally as a programmatic assessment in these programs. USAID recently developed assessment programs, called Programmatic Environmental Reviews (PERs), that involve one or more specific locations. The PER for the Casamance River system described below, is an example of these programs. 292. ENVIRONMENT DEPARTMENT, WORLD BANK, WORLD BANK TECHNICAL PAPER No. 154, ENVIRONMENTAL ASSESSMENT SOURCEBOOK, VOL. III: GUIDELINES FOR ENVIRONMENTAL ASSESSMENT OF ENERGY AND INDUSTRY PROJECTS (1991). 293. RICHARD HAEUBER, A CITIZEN'S GUIDE TO WORLD BANK ENVIRONMENTAL ASSESSMENT PROCEDURES (1992). 294. 22 C.F.R. § 216.2(d) (1993). 295. See, e.g., TAMS CONSULTANTS AND CONSORTIUM FOR INT'L CROP PROTECTION, LOCUST AND GRASSHOPPER CONTROL IN AFRICA/ASIA (1989). 296. Such assessments are rarely performed. Programmatic Environmental Impact Assessment (PEIA) on Pesticides Used in Locust Control Programs in Africa USAID prepared this PEIA297 in response to public concern about the impacts of pesticides used in the foreign assistance program in Africa for locust and grasshopper control. The assessment evaluated the potential impact of eleven pesticides on the ecology and human health of over eight Sahelian countries in Africa. The assessment led to a recommendation to continue research in non-pesticidal control mechanisms, particularly Integrated Pest Management.298 The assessments were tiered to eight country environmental assessments for each program within that country. 299 The assessments also resulted in the release of guidelines for planning pesticide programs 300 from USAID/ Washington to each USAID mission. A central recommendation was to avoid the use of dieldrin because of its long persistence in the environment and its potential to accumulate in food chains. Instead the program recommended using one of the eleven pesticides reviewed under the conditions specified in the report.301 Ironically, the recommendation about dieldrin caused a major dispute between USAID and other donor countries in the locust control program. The United Nations Food and Agricultural Organization coordinated the total foreign aid package from all donor countries. Major European donor countries argued that dieldrin use was cost-effective for spraying large swaths of dessert against locust invasions; the use of other less persistent pesticides resulted in the need to spray at least twice as often. However, USAID argued that the pursuit of greater environmental protection justified this 297. Supra note 295. 298. See also TAMS CONSULTANTS AND CONSORTIUM FOR INT'L CROP PROTECTION, EXEcUTIVE SUMMARY AND RECOMMENDATIONS: LOCUST AND GRASSHOPPER CONTROL IN AFRIcA/ASIA (1989). 299. Id. See also Bureau of Africa, U.S. Agency for Int'l Development, Review of Environmental Concerns in A.I.D. Programs for Locust and Grasshopper Control (1991). 300. Id. 301. Id. difference in resource needs and refused to donate to programs that used dieldrin. The USAID position prevailed. Cassamance River in Senegal Over the past year USAID has been preparing a PER on the Southern Zone Water Management Project.30 2 This program consists of a series of small anti-salt and freshwater retention dikes used to better manage water for rice production in areas of the Casamance River that have become highly saline or totally dry during the drought over the past decade. While the impact to individual valleys was perceived to be low, the cumulative impact on all developed valleys in the river system (expected to be more than 30%) was of concern. USAID is evaluating the results of the assessment and is planning the most effective resource use while minimizing environmental impacts. United Nations Development Program (UNDP) and Other UN Programs The United Nations Development Program provides grants for international development programs, in some cases in conjunction with other donors/lenders, such as the World Bank or other Development Banks.30 3 No guidelines exist for programmatic assessment use in projects funded 302. U.S.A.I.D./SE GAL, DRAFT PRoGRAMMATic ENVIRONMENTAL REVIEW OF THE SOUTHERN ZONE WATER MANAGEMENT PROJEcT (1993). 303. Four multilateral development banks fund activities concerning international development: The World Bank, the Inter-American Development Bank (Inter-American Bank), the Asian Development Bank (Asian Bank), and African Development Bank. These banks were established by Articles of Agreement that have the status of treaties. Articles of Agreement of the International Bank for Reconstruction and Development, opened for signatureDec. 27, 1945, 60 Stat. 1440 (1946), 2 U.N.T.S. 134, amended Dec. 16, 1965, 16 U.S.T. 1942, T.I.A.S. No. 5929; Agreement Establishing the Inter-American Development Bank, opened for signature, Apr. 8, 1959, 10 U.S.T. 3029, T.I.A.S. No. 4397, amended Jan. 28, 1964, 21 U.S.T. 1570, T.I.A.S. No. 6920, amended Mar. 31, 1968, 19 U.S.T. 7381, T.I.A.S. No. 6591, amended Mar. 23, 1972, T.I.A.S. No. 7437; Articles of Agreement of the Asian Development Bank, opened for signature Jan. 31, 1966, 17 U.S.T. 1418, 571 U.N.T.S. 123. The World Bank supports programs which 'promote economic development, increase productivity and thus raise standards of living in the less-developed areas of the world ... by providing finance to meet their important developmental requirements." solely by the UNDP. However, the UNDP adopts guidelines for development agencies that cooperate in the project. For instance, the UNDP adopted World Bank Guidelines for reviewing the Kalu Ganga Development program described below, as well as the guidelines for the Central Environmental Authority for Sri Lanka.30 4 Sri Lankan Thermal Power Assessment 30 5 Here a PEIA306 considered the feasibility of additional coal fired power generation in Sri Lanka. A wide range of engineering and environmental considerations were addressed for sites throughout the country. The PEIA identified the high sulphur content in fuel oil used in the capital as a contributor to poor air quality in that region. The oil is acquired by bartering locally grown tea. The study proposed using oil washing techniques to remove the sulphur from the oil. The sulphur could then be used on the tea crops, saving the government large amounts of money used to import sulphur for this purpose. 30 7 Kalu Ganga Development Project Under the Kalu Ganga Project,308 the UNDP considered environmental aspects of a large hydropower and water supply project in the central part of Sri Lanka. The UNDP Articles of Agreement of the International Development Association, Jan. 26, 1960, art. I, 11 U.S.T. 2284, 2285-86, 439 U.N.T.S. 249, 252. 304. CENTRAL ENVIRONMENTAL AUTHORITY, SRI LANKA, HANDBOOK ON ENVIRONMENTAL ASSESSMENT (1987). 305. This section was prepared with the assistance of Dr. Sirapalan, Director of the Tea Research Institute of Sri Lanka. 306. BLACK AND VEATCH INTERNATIONAL, TRINCOMALEE THERMAL POWER PROJECT, PHASE III, BOOK 2: SOCIAL AND ENVIRONMENTAL AsSESSMENT (1988) (prepared for Ceylon Electricity Board, Sri Lanka). 307. These observations were contained in trip reports by the author, but were not included in the final report because they were considered tangential to the main purpose of the assessment. 308. TAMS CONSULTANTS, INC., ENVIRONMENTAL STUDIES, PART 1: KALU GANGA MULTIPURPOSE PROJECT, INITIAL ENVIRONMENTAL EXAMINATION AND REVIEW OF ENVIRONMENTAL ISSUES (1988) (prepared for UNDP). adopted World Bank Guidelines, 30 9 as well as the CEA Guidelines. As with many of these programs, the major issues involved possible resettlement of people near the dam reservoir site, as well as impacts on the biota of the river itself. At the present time the program has been suspended because of the perception that the resettlement impacts are too great. F. U.S. Environmental Protection Agency in International Programs Under the Reagan and Bush administrations, USEPA was charged with taking a lead in the technical aspects of the environmental consequences of international activities involving the U.S. Government. 310 As part of these responsibilities, USEPA coordinated a review of environmental issues related to the U.S., Mexico, and the North American Free Trade Agreement. 3 11 Somewhat equivalent to a programmatic assessment, the USEPA performed an Integrated Environmental Plan for the border areas between the U.S. and Mexico, and examined many issues, including trade and water pollution. VI. The Future of the Programmatic Assessment Since the PEIS is increasingly being adopted by both U.S. agencies and international organizations, we now turn to a discussion of the proper role of the PEIS in the future. First, it would appear that the programmatic assessment will have an increasing role in the activities of the U.S. government and international institutions. While these entities may find that there is a need to give up some of their independence, and that some of their decisions will need to be made more openly than in the past, there are at least two 309. These included World Bank Guidelines on Comprehensive Environmental Policy, Wildlands Conservation, Involuntary Resettlement, Cultural Property, Pollution Control and Use of Pesticides. Id. 310. They maintained then, and continue today, an uncertain relationship between their activities and those of the USAID, Department of State. 311. North American Free Trade Agreement, Sept. 15, 1992, U.S.-Mex.-Can. 1992. important reasons to proceed with these assessments. First, they are necessitated by the increasing importance given to environmental matters in conjunction with other activities, and by a need for a mechanism to formally consider the consequences about proposed actions. The PEIS can be an excellent tool for forcing a systematic and comprehensive consideration of environmental matters early in the planning stage. Second, the PEIS is a tool that needs to be used to sort out matters as they become more interconnected in an increasingly complex world. For instance, the mere consideration of waste management implications, or of risk implications to a population, may force an agency to find ways to minimize both. No major impediments from the courts or the agencies for implementing additional PEIS activities can be seen at this time. However, for the PEIS to take its place as a respected tool in environmental policy, it needs to become more sophisticated and its methodologies better defined, either on an agency or government-wide basis. On the sophisticated side, new ways of assessing cumulative and synergistic impacts need to be developed. As to methodologies, there are particular problems of assessing the significance of a potential impact, as discussed in greater detail in Part III, which need careful attention and development. The relationship of science, economics and law needs to be better defined in order to ensure appropriate use of these methodologies in decisionmaking. We have already discussed important features that need to be considered in a PEIS in Part II. Undoubtedly there will be some setbacks and disagreements in the use of the PEIS; in fact, the time may be ripe for a new Supreme Court review of the proper use of this device. However, given the momentum and obvious agreement in its utility, one can envision a bright and important place for the PEIS in the future. Indeed, the programmatic assessment has been a major vehicle in installing an environmental ethic in the world in general. It allows equal consideration of environmental aspects of programs along with economic and political aspects that have long been dominant. The future A. NEPA Language and the Council on Environmental Quality (CEQ) Guidelines ... 96 B. Court Review ............................... 98 1. Introduction ............................. 98 2. Timing , Scope and Judicial Review ...... 99 3. Issues of Standing ....................... 110 4. Final Agency Action ..................... 112 III. NEPA Programmatic Concepts .................. 114 A. Introduction ................................. 114 B. Reasoning ................................... 116 C. Assessing Significance of Environmental Impacts in the Programmatic Assessment ... 123 1. CEQ Guidelines ......................... 123 2. Significance in U.S. Regulations ......... 124 3. Significance in Programmatic Assessm ents ............................. 127 D. Agency Use of Programmatic Assessments .. 131 IV. NEPA as Applied by the United States Governm ent ..................................... 136 A. Introduction ................................. 136 B. NEPA at the Department of Defense: Strategic Defense Initiative ................. 136 C. NEPA at the Department of Energy (DOE) . 140 1. Clean Coal Technology Demonstration Program ................................. 140 2. Nuclear and Hazardous Waste Cleanup Program s ................................ 141 3. Fuel Use Act ............................ 143 D. NEPA at the U.S. Forest Service (Department of Agriculture) . ................ 143 V. NEPA-like Devices at International Institutions ....... ...... ................................... 146 A. Introduction ................................. 146 B . Use by Economic Commission for Europe . .. 146 C. World Bank ................................. 149 D. NEPA at the U.S. Agency for International Development (USAID ) ...................... 150 1. Programmatic Environmental Impact Assessment (PEIA) on Pesticides Used in Locust Control Programs in Africa ....... 2. Cassamance River in Senegal ............ 1. National Environmental Policy Act of 1969 (NEPA ) §§ 101 - 209 , 42 U.S.C. §§ 4321 - 4370b ( 1988 ). 2. 42 U.S.C. § 4332 ( "(2) all agencies of the Federal Government shall ... (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on - (i) the environmental impact of the proposed action . .. "). 3. V. M. FOGELMAN, GUIDE TO THE NATIONAL ENVIRONMENTAL POLICY ACT ( 1990 ). 4. Environmental impact statements are available to the public at the following locations: U.S. Environmental Protection Agency Library , Room 2904 Mall , 401 M Street , SW , Washington, DC 20460 , 202 - 260 -5926; Northwestern University, Transportation Library - NEPA, 1935 North Sheridan Road, Evanston, IL 60201 , 708 - 491 -5275; Cambridge Information Group, 7200 Wisconsin Avenue, Bethesda, MD 20814 , 301 - 961 -6744. 19. See Nicholas A. Robinson , The Scientific Challenge of NEPA: Future Directions Based on Twenty Years of Experience , Address to Ninth Oak Ridge National Laboratory Life Sciences Symposium (Oct. 25 , 1989 ). 20. Examples of these issues include the sequence of public involvement, the handling of specific issues within the DEIs, the administrative sequence within an agency, and the interplay between government agencies . 21. Attachment A to Summary of NEPA Implementation Discussions , Conference on the National Environmental Policy Act , Chicago, Ill., April 28-30 , 1992 (hereinafter Chicago Conference) ( on file with Pace Environmental Law Review) . 26. 40 C.F.R. § 1502 .20 ( 1992 ). 27. See Guidance Regarding the NEPA Regulations , 48 Fed. Reg. 34 , 263 , 34 , 267 ( 1983 ); Question 24, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations , 46 Fed. Reg. 18 , 026 , 18 , 033 ( 1981 ). See also California v. Block , 690 F.2d 753 ( 9th Cir . 1982 ) ; Foundation on Economic Trends v . Lyng , 817 F. 2d 882 (D.C. Cir . 1987 ). 28. 40 C.F.R. § 1508 .28 ( 1992 ) (emphasis added). 64. Kleppe , 427 U.S. at 417-18 (citations omitted). 65. See , e.g., Molly B. Warner , Recent Decisions, 26 EMORY L.J. 231 ( 1977 ); E.A. Lang , Jr., Casenotes, 12 LAND & WATER L. Rzv . 195 ( 1977 ) ; A. Koshland, The Scope of the ProgramEIS Requirement: The Need for a CoherentJudicial Approach, 30 STAN . L. REv. 767 .( 1978 ) (thoughts on the PEIS when NEPA was young ). 66. FINDLEY & FARBER, supra note 36, at 41-45: The Court's position can best be understood as reflecting a desire to require the minimum change in agency decision-making processes in order to comply with the statutory language. Thus, the Court seems to view NEPA as merely a gloss on a general body of federal administrative law, rather than as reflecting a congressional desire for any radically new approach by agencies. In part, the Court seems to have been motivated also by the desire to have a clear, predictable test rather than requiring the kind of case-by-case balancing adopted by the D.C. Circuit . 70. 40 C.F.R. § 1502 .5 ( 1992 ). 71. 40 C.F.R. § 1508 .25 ( 1992 ). 72. Foundation on Economic Trends v. Lyng , 817 F. 2d 882 (D.C. Cir . 1987 ). 73. Id . at 886. "As the Supreme Court recently admonished '[tihe political process, and not NEPA, provides the appropriate forum in which to air policy disagreements.'" Id. (quoting Metropolitan Edison Co . v. People Against Nuclear Energy , 460 U.S. 766 , 777 ( 1983 )) (citations omitted). 74. Foundation on Economic Trends v. Lyng , 943 F. 2d 79 (D.C. Cir . 1991 ). 218. Hirsch Memorandum , Boston Conference, supra note 133. 219. See , e.g., A. Koshland, The Scope of the ProgramEIS Requirement: the Need for a Coherent JudicialApproach, 30 STAN . L. REv. 767 ( 1978 ). 220. Interview with William Dickerson, Office of Federal Facilities, USEPA , in Washington, D.C. (Jan. 8 , 1993 ). 221. 42 U.S.C. § 4332 ( 2 ) ( A ) ( 1988 ). 222. S. REP . No. 296 , 91st Cong., 1st Sess . 19 ( 1969 ). 223. Hirsch Memorandum , Boston Conference, supra note 133 ( discussing comments by Jacqueline Wyland , USEPA). 234. Letter from Lawrence G. McBride, Asst . Chief, General Litigation Section, Land and Natural Resources Division, U.S. Dep't of Justice, to William H. Carroll , General Counsel, SDIO, U.S. Dep't of Justice (Jan. 11 , 1988 ) ( on file with the Pace EnvironmentalLaw Review) . 235. Memorandum from Robert W. Rodrigues , U.S. Dep't of Justice to Files (Sept. 14 , 1987 ), attached to Memorandum for Record by William H . Carroll , General Counsel, SDIO,U.S. Dep't of Defense (Sept. 17 , 1987 ) ( on file with the Pace EnvironmentalLaw Review) . 236. Id . 237. Memorandum from James A . Abrahamson , Director, SDIO, U.S. Dep't of Defense, to U.S. Secretary of Defense (Sept. 17 , 1987 ) ( on file with the Pace EnvironmentalLaw Review) . 238. Lt . Col. Michael Van Zandt, General Counsel's Office, SDIO, U.S. Dep't of Defense, Strategy Plan for the SDIO Environmental Impact Analysis Process (Jan . 1990 ). 3. 254. See , e.g., Implementation Plan , Environmental Restoration and Waste Management Programmatic Environmental Impact Statement, prepared by DOE, Environmental Restoration and Waste Management Program (Washington, D.C. , Apr . 1993 ) (on file with the Pace EnvironmentalLaw Review) . 255. U.S. Department of Energy, Final Environmental Impact Statement: U.S. Department of Energy DOE/EIS-0038 (Apr . 1979 ) (on file with the Pace Environmental Law Review) . Notice of availability in Federal Register was published on Nov. 13, 1978 and Jan. 9 , 1979 , and a Final PEIS issued in Apr . 1979 . 256. Powerplant and Industrial Fuel Use Act of 1978, Pub . L. No. 95 - 620 , 92 Stat. 3289 ( 1978 ). 257. See Notice of Adoption of Final Policy, 50 Fed. Reg. 26 , 078 ( 1985 ). 258. Stark Ackerman , Observationson the Transformationof the ForestService: The Effects of the NationalEnvironmentalPolicy Act on U.S. ForestService Decision Making, 20 ENVTL . L. 703 , 720 ( 1990 ). 277. Adopted at the Conference on Security and Co-Operation in Europe, 16 November 1990 , it said: We emphasize the significant role of a well-informed society in enabling the public and individuals to take initiatives to improve the environment . To this end, we commit ourselves to promoting public awareness and education on the environment as well as the public reporting of the environmental impact of policies, projects and programmes . Doc. A/45/859 at 16 ( 1990 ). 278. Council Directive 85/337 on the Assessment of the Effects of Certain Public and Private Projects on the Environment , 1985 O.J. (L 175) 40 . 279. The Brundtland Commission report, "Our Common Future," addressed the need to integrate environmental protection with economic development at the policy level in relation to sustainable development: The ability to choose policy paths that are sustainable requires that the ecological dimensions of policy be considered at the same time as the economic, trade, energy, agricultural, industrial, and other dimensions--on the same agendas and in the same national and international institutions. This is the chief institutional challenge of the 1990s . WORLD COMMISSION ON ENVIRONMENT AND DEVELOPMENT, OUR COMMON FuTURE 313 ( 1987 ). 280. These are Canada, Czech and Slovak Federal Republic, Denmark, Finland, France, Germany, Greece, Hungary, Italy, the Netherlands, Norway, Poland, Spain, Sweden, Turkey, United Kingdom and the United States. U.N. ECONOMIC COMM'N FOR EUROPE , APPLICATION OF ENVTL. IMPACT ASSESSMENT PRINCIPLES TO POLICIES, PLANS AND PROGRAMMES, U.N. Doc . ECE/ENVWA/27, U.N. Sales No . E.92 . II .E. 28 ( 1992 ). 281. Task Force on the Application of Environmental Impact Assessment with the United States as Lead Country, United Nations Economic Comm'n on Europe, Application of the Principles of Environmental Impact Assessment to 2 .


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Jon C. Cooper. Broad Programmatic, Policy and Planning Assessments under the National Environmental Policy Act and Similar Devices: A Quiet Revolution in an Approach to Environmental Considerations, Pace Environmental Law Review, 1993,