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
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Broad Programmatic, Policy and
National Environmental Policy Act
and Similar Devices: A Quiet
Revolution in an Approach to
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
I. Introduction ....................................
NEPA Law and Regulations ....................
* 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
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
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
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).
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,
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
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).
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
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
18. See, e.g., discussion of NEPA goals in Kieppe dissent, infra note 64.
How should cumulative or synergistic impacts be
In a broad-based assessment, how precisely does the
affected environment, and the resulting impacts, need to be
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
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
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).
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.
"[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
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
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
32. See Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984).
33. 481 F.2d 1079 (D.C. Cir. 1973).
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
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
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
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).
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
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
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.
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,
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
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
The Kleppe test surfaced again in a third case of NEPA
programmatic assessments. In Weinberger v. CatholicAction
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.
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
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
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
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
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).
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
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
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)).
232. Id. Categorical exclusions are authorized for NEPA in 40 C.F.R.
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
Environmental analysis will begin at the earliest possible
(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,
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
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
This methodology was recently used to describe the
matic EIS.2 45
SDIO program in the Kinetic Energy Anti-Satellite
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
246. DOE/EIS-0146: Final Programmatic Environmental Impact Statement
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
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
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").
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
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
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
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).
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
268. See, e.g., Ventling v. Bergland, 479 F. Supp. 174, 179-80
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.
273. Id. at 942.
NEPA-Like Devices at International Institutions
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
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
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).
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
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
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
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
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
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
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).
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
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
F. U.S. Environmental Protection Agency in International
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
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.
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 .