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The environmental impact assessment project
Republics include provisions respecting the mining and use of mineral resources. (6) The decree will be accompanied by a unified system o f governmental registration of reserves. (7) Mining and fabrication methods used until now have greatly disturbed the balance of nature. The reclamation of land for agriculture, forest and fisheries must be undertaken vigorous-
ly. Thereby a certain degree of improvement may be achieved with respect to the condition of water tables, and air and water pollution and the dying out of vegetation may be brought to a halt. (8) Institutions at all levels are called upon to implement the decree. Mining officials are empowered to put a stop to mining activities in violation of its
The Environmental Impact Assessment Project b y J O H N S. W I N D E R , Jr.*
been reached. Further progress toward meeting NEPA's objectives would require a substantial and more systematic infusion of scientific expertise and objective analysis into agency decisionmaking. It was recognized, in particular, that the environmental impact statements (EIS's) prepared by federal agencies in compliance with the provisions of the Act had been noticeably lacking in completeness and scientific accuracy. The preparation of satisfactory impact statements is central to NEPA's scheme for ensuring that environmental considerations are given adequate weight in federal policy decisions. Initially, only procedural NEPA guidelines were established. 4 No similar guidelines were developed concerning the substantive content of impact statements. In July 1973 the Ford Foundation awarded a grant to The Institute of Ecology to establish the Environmental Impact Assessment Project (EIAP). The Project was designed to: (1) bring agency personnel responsible for preparing impact statements into better communication with scientists, and (2) make available to agencies and other interested parties scientific critiques of particular impact statements for important categories of federal projects, such as highways, irrigation and natural resource development. The broad goal o f the Assessment Project is to improve the federal planning and evaluation procedures mandated by NEPA which requires all federal agencies to utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social * Director, Environmental Impact assesssciences and the environmental dement Project, Institute of Ecology, Washington, sign arts in planning and in decisionD.C., USA.
Dr. Marion Clawson, acting president of Resources for the Future, Inc., recently criticized the NEPA process in an article entitled "Ecology: Second Thoughts". Dr. Clawson stated: Environmental impact statements surely impede public action, whether it be well or ill conceived. They are costly to prepare, are an open invitation to lengthy court disputes, and may in time be largely thwarted as public agencies learn perfunctory compliance. A sharp check rein upon public agencies was almost surely necessary, but the short-run efficiency of environmental impact statement is low and their long-run effectiveness is, at best, unproven. 1 Notwithstanding such criticism, the Council on Environmental Quality concluded in its annual report for 1974 that: NEPA is alive and well. It has passed through a transition period, during which agencies have become aware of the act's widespread requirements, and the basic structure of the environmental impact statement process has become firmly established. 2 Although NEPA is indeed alive and well, EIS's can and should be better. For example, CEQ also suggests and predicts that: Looking ahead at the next few years, the clearest and most probable major advance is likely to be in the quality of environmental analysis contained in impact statements. 3 By early 1973 it was clear that a critical period in NEPA's history had
Environmental Policy and Law, I (1975)
provisions. Labor unions, youth organizations, scientific societies and other mass organizations are requested to participate in the decree's implementation. (9) The central characteristic of the decree is its legislative anchoring of principles which specify planned, comprehensive and rational utilization of mineral resources as the basis of all activities in this field.
making which may have an impact on man's environment, s The Assessment Project has proceeded on the basis of two principal assumptions: (1) that federal agency and public review processes under NEPA are of critical importance to the preservation and enhancement of environmental quality, and (2) that the environmental impact statement (EIS) process can be improved by the consistent use of scientific knowledge and perspective. 6 The EIAP has given its attention to two distinct but overlapping outputs: the primary product of Phase I was the publication of a number of scientific and policy reviews of selected EIS's, and the principal product of Phase II will be the publication of general and specific substantive guidelines for the preparation of EIS's. Phase II is scheduled to be completed by October 31, 1975. During the initial months of Phase I of the Assessment Project the EIAP s t a f f reviewed a number of EIS's. Each EIS was examined to determine whether: (1) the EIS represented many of the "major faults found in previous EIS's; "(2) the proposed project or program posed unusually significant adverse environmental impacts; and (3) the proposed project was typical of hundreds of similar projects for which EIS's would have to be prepared in the future. A few EIS's were selected for an indepth analysis. Subsequently the Assessment Project staff assembled interdisciplinary teams of biological scientists, economists, sociologists, lawyers and others. The review team size ranged from ten to thirty members. In most cases the reviewers were located in an area near the proposed project site. For each of the reviews, one of the reviewers was appointed review team leader. In each case, a draft of the Assessment Project review was submitted to the federal agency which had prepared the EIS within the time permitted for formal comment usually 60 to 90 days. Subsequently, each review was edited by the review 93
team leaders and the EIAP staff. Six Phase I reviews have been published and widely distributed to federal agencies, universities, industries and private citizens. The EIS reviews which were published ranged in length from 53 to 250 pages. Reviews of the following environmental impact statements were published by the Assessment Project during Phase I: Final EIS on the Prototype Oil Shale Leasing Program of the Department of Interior; ~ Draft EIS on the Crow Ceded Area Coal Lease -- Westmoreland Resources Mining Proposal o f the Bureau of Indian Affairs, Department of the Interior; 8 Draft EIS on the North Lake TahoeTruckee River Basin Wastewater Treatment and Conveyance System of the Environmental Protection Agency ;9 Draft EIS on the Proposed Federal Coal Leasing Program of the Department of the Interior; 1° Draft EIS on the Proposed Development of Coal Resources in the Eastern Powder River Coal Basin of Wyoming of the Department of the interior;X i Final EIS on the Initial Stage Garrison Diversion Unit of the Bureau of Reclamation, Department of the Interior.12 Each of the EIAP reviews concluded that the environmental impact statements failed to comply fully with either the letter and the spirit of NEPA. Review teams also recommended major revisions, in the form of either a substantially revised final EIS or a new draft EIS. The Assessment Project reviews dealt primarily with three basic types Of issues concerning impact statement preparation: (1) format issues, such as length of the EIS, need for summaries of the EIS, citations to references, maps, charts; (2) analytical issues, such as the assessment methodologies used, magnitude and severity of impacts, mitigation efforts, missing data; and (3) impact issues, assessing the consideration of primary and secondary impacts, short- and long-term impacts, ecological and social impacts. The most consistent recommendation was the use of better ecological analysis for impact assessment. For example, the reviewers of the Federal Coal Leasing EIS noted: Understanding the relevant ecosystem is, or should be, at the heart of any assessment of the environmen94
tal impacts of coal development. Although the EIS contains a fair amount of information concerning the flora and fauna in the coal provinces, it portrays little understanding of ecosystem function and even less analysis of the relevant impacts of federal coal development on the biota. 13 Similarly, the reviewers o f the Crow Ceded Area EIS recommended the following expanded consideration of soil impacts: Soil is not a substance that can be stored in a pile while mining goes on and then profitably spread back over the ground. Soil is a living biogeochemical substrate composed of partly weathered and stratified minerals, delicately bound (but not available tO leaching rain waters) and living or dead organic substances and organisms that participate in the nutrient cycle between plant and substrate. The stratigraphic order of each two to four inch segment of the top foot or more of the soil should be preserved to facilitate reclamation to a stable community, and each must be kept viable. The EIS does not discuss this problem. It has taken at minimum ten thousand years for the soil
and its inhabitants to develop in eastern Montana, and this soil today is still evolving.14 The Assossment Project is currently engaged in Phase II of its work, which is designed to develop and publish substantive NEPA guidelines and recommendations. This effort is directed both to the improvement o f environmental impact statements per se and also to the improved use of the EIS in the federal decision-making process. During 1975 the EIAP will conduct a number of workshops with review team members, government agency staff, industry representatives and consultants. The Assessment Project plans to develop one set of general NEPA guidelines which will apply to most types of major federal projects and programs and another more detailed set of EIS guidelines using western coal development as the object of a case study. In the final analysis, the EIAP efforts may help answer, in the affirmative, one major, unanswered NEPA question: "whether environmental impact assessment can be made, as NEPA's authors envisioned, an integral part of Government planning rather than after-the-fact justification,,.l s
References 1 Marion Clawson, Ecology: Second Thoughts, Washington Post, Feb. 28, 1975, at A22. 2 Environmental Quality - 1974 (The Fifth Annual Report of the Council on Environmental Quality) (U.S. Gov. Printing Office: Washington, D.C., 1974), at 413. 3 Id. at 409. 4 36 Federal Register 7724 - 29, Apr. 23, 1971:38 Federal Register 20550 - 62, Aug. 1, 1973. 5 The National Environmental Policy Act of 1969, P.L. 91 - 190, 42 U.S.C. sections 4321 - 47 (1970). 6 J.S. Winder, "Ecological Considerations in the Preparation of Regional Energy Environmental Impact Statements", Proceedings of the Regional Energy Environmental Impact Statement Seminar sponsored by the Denver Federal Executive Board, March 6 - 7, 1975, Denver, Colorado. 7 K. Fletcher and M, F. Baldwin (eds.), A Scientific and Policy Review of the Prototype Oil Shale Leasing Program Final Environmental Impact Statement (EIAP/TIE, Washington, D.C., Oct. 29, 1973), at 105. 8 R. Applegate and M. F. Baldwin (eds.), A Scientific and Policy Review of the Draft Environmental Impact Statement: Crow Ceded Area Coal L ease Westmoreland Resourees Mining Proposal (EIAP/TIE, Washington, D.C., Nov. 29, 1973), at 19. 9 R.B. Smythe (ed.), A Scientific and Policy Review of the Draft Environmental Impact Statement: Wastewater Treatment and Conveyance System, North Lake Tahoe-Truckee River Basin (EIAP/TIE, Washington, D.C., March 30, 1974). 10 K. Fletcher (ed.), A Scientific and Policy Review of the Draft Environmental Impact Statement for the Proposed Federal Coal Leasing Program (EIAP/TIE, Washington, D.C.,
1974), at 4 - 6. 11 J. S. Winder and C. Loehner (eds.), A Scientific and Policy Review of the Draft Environ12
13 14 15
mental Impact Statement on the Development of Coal Resources in the Eastern Powder River Coal Basin of Wyoming (EIAP]TIE, Washington, D.C., Aug. 1974), at 8. G. L. Pearson, W. L. Pomeroy, G. A. Sherwood and J. S. Winder (eds.),A Scientific and Policy Review of the Final Environmental Statement for the Initial Stage, Garrison Diversion Unit (EIAP/TIE, Washington, D.C., Jan. 1975). A short review of this report was published in 1 Environmental Policy and Law, 48 (1975). Supraref. t0. at 174. Supra ref. 8, at 22- 23. G. Hifl, Midpoint of "Environmental Decade": Impact of National Policy Act Assessed, New York Times, Feb. 18, 1975, at C1. Environmental PolicF and Law, 1 (1975)
ly. Thereby a certain degree of improvement may be achieved with respect to the condition of water tables, and air and water pollution and the dying out of vegetation may be brought to a halt. (8) Institutions at all levels are called upon to implement the decree. Mining officials are empowered to put a stop to mining activities in violation of its
The Environmental Impact Assessment Project b y J O H N S. W I N D E R , Jr.*
been reached. Further progress toward meeting NEPA's objectives would require a substantial and more systematic infusion of scientific expertise and objective analysis into agency decisionmaking. It was recognized, in particular, that the environmental impact statements (EIS's) prepared by federal agencies in compliance with the provisions of the Act had been noticeably lacking in completeness and scientific accuracy. The preparation of satisfactory impact statements is central to NEPA's scheme for ensuring that environmental considerations are given adequate weight in federal policy decisions. Initially, only procedural NEPA guidelines were established. 4 No similar guidelines were developed concerning the substantive content of impact statements. In July 1973 the Ford Foundation awarded a grant to The Institute of Ecology to establish the Environmental Impact Assessment Project (EIAP). The Project was designed to: (1) bring agency personnel responsible for preparing impact statements into better communication with scientists, and (2) make available to agencies and other interested parties scientific critiques of particular impact statements for important categories of federal projects, such as highways, irrigation and natural resource development. The broad goal o f the Assessment Project is to improve the federal planning and evaluation procedures mandated by NEPA which requires all federal agencies to utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social * Director, Environmental Impact assesssciences and the environmental dement Project, Institute of Ecology, Washington, sign arts in planning and in decisionD.C., USA.
Dr. Marion Clawson, acting president of Resources for the Future, Inc., recently criticized the NEPA process in an article entitled "Ecology: Second Thoughts". Dr. Clawson stated: Environmental impact statements surely impede public action, whether it be well or ill conceived. They are costly to prepare, are an open invitation to lengthy court disputes, and may in time be largely thwarted as public agencies learn perfunctory compliance. A sharp check rein upon public agencies was almost surely necessary, but the short-run efficiency of environmental impact statement is low and their long-run effectiveness is, at best, unproven. 1 Notwithstanding such criticism, the Council on Environmental Quality concluded in its annual report for 1974 that: NEPA is alive and well. It has passed through a transition period, during which agencies have become aware of the act's widespread requirements, and the basic structure of the environmental impact statement process has become firmly established. 2 Although NEPA is indeed alive and well, EIS's can and should be better. For example, CEQ also suggests and predicts that: Looking ahead at the next few years, the clearest and most probable major advance is likely to be in the quality of environmental analysis contained in impact statements. 3 By early 1973 it was clear that a critical period in NEPA's history had
Environmental Policy and Law, I (1975)
provisions. Labor unions, youth organizations, scientific societies and other mass organizations are requested to participate in the decree's implementation. (9) The central characteristic of the decree is its legislative anchoring of principles which specify planned, comprehensive and rational utilization of mineral resources as the basis of all activities in this field.
making which may have an impact on man's environment, s The Assessment Project has proceeded on the basis of two principal assumptions: (1) that federal agency and public review processes under NEPA are of critical importance to the preservation and enhancement of environmental quality, and (2) that the environmental impact statement (EIS) process can be improved by the consistent use of scientific knowledge and perspective. 6 The EIAP has given its attention to two distinct but overlapping outputs: the primary product of Phase I was the publication of a number of scientific and policy reviews of selected EIS's, and the principal product of Phase II will be the publication of general and specific substantive guidelines for the preparation of EIS's. Phase II is scheduled to be completed by October 31, 1975. During the initial months of Phase I of the Assessment Project the EIAP s t a f f reviewed a number of EIS's. Each EIS was examined to determine whether: (1) the EIS represented many of the "major faults found in previous EIS's; "(2) the proposed project or program posed unusually significant adverse environmental impacts; and (3) the proposed project was typical of hundreds of similar projects for which EIS's would have to be prepared in the future. A few EIS's were selected for an indepth analysis. Subsequently the Assessment Project staff assembled interdisciplinary teams of biological scientists, economists, sociologists, lawyers and others. The review team size ranged from ten to thirty members. In most cases the reviewers were located in an area near the proposed project site. For each of the reviews, one of the reviewers was appointed review team leader. In each case, a draft of the Assessment Project review was submitted to the federal agency which had prepared the EIS within the time permitted for formal comment usually 60 to 90 days. Subsequently, each review was edited by the review 93
team leaders and the EIAP staff. Six Phase I reviews have been published and widely distributed to federal agencies, universities, industries and private citizens. The EIS reviews which were published ranged in length from 53 to 250 pages. Reviews of the following environmental impact statements were published by the Assessment Project during Phase I: Final EIS on the Prototype Oil Shale Leasing Program of the Department of Interior; ~ Draft EIS on the Crow Ceded Area Coal Lease -- Westmoreland Resources Mining Proposal o f the Bureau of Indian Affairs, Department of the Interior; 8 Draft EIS on the North Lake TahoeTruckee River Basin Wastewater Treatment and Conveyance System of the Environmental Protection Agency ;9 Draft EIS on the Proposed Federal Coal Leasing Program of the Department of the Interior; 1° Draft EIS on the Proposed Development of Coal Resources in the Eastern Powder River Coal Basin of Wyoming of the Department of the interior;X i Final EIS on the Initial Stage Garrison Diversion Unit of the Bureau of Reclamation, Department of the Interior.12 Each of the EIAP reviews concluded that the environmental impact statements failed to comply fully with either the letter and the spirit of NEPA. Review teams also recommended major revisions, in the form of either a substantially revised final EIS or a new draft EIS. The Assessment Project reviews dealt primarily with three basic types Of issues concerning impact statement preparation: (1) format issues, such as length of the EIS, need for summaries of the EIS, citations to references, maps, charts; (2) analytical issues, such as the assessment methodologies used, magnitude and severity of impacts, mitigation efforts, missing data; and (3) impact issues, assessing the consideration of primary and secondary impacts, short- and long-term impacts, ecological and social impacts. The most consistent recommendation was the use of better ecological analysis for impact assessment. For example, the reviewers of the Federal Coal Leasing EIS noted: Understanding the relevant ecosystem is, or should be, at the heart of any assessment of the environmen94
tal impacts of coal development. Although the EIS contains a fair amount of information concerning the flora and fauna in the coal provinces, it portrays little understanding of ecosystem function and even less analysis of the relevant impacts of federal coal development on the biota. 13 Similarly, the reviewers o f the Crow Ceded Area EIS recommended the following expanded consideration of soil impacts: Soil is not a substance that can be stored in a pile while mining goes on and then profitably spread back over the ground. Soil is a living biogeochemical substrate composed of partly weathered and stratified minerals, delicately bound (but not available tO leaching rain waters) and living or dead organic substances and organisms that participate in the nutrient cycle between plant and substrate. The stratigraphic order of each two to four inch segment of the top foot or more of the soil should be preserved to facilitate reclamation to a stable community, and each must be kept viable. The EIS does not discuss this problem. It has taken at minimum ten thousand years for the soil
and its inhabitants to develop in eastern Montana, and this soil today is still evolving.14 The Assossment Project is currently engaged in Phase II of its work, which is designed to develop and publish substantive NEPA guidelines and recommendations. This effort is directed both to the improvement o f environmental impact statements per se and also to the improved use of the EIS in the federal decision-making process. During 1975 the EIAP will conduct a number of workshops with review team members, government agency staff, industry representatives and consultants. The Assessment Project plans to develop one set of general NEPA guidelines which will apply to most types of major federal projects and programs and another more detailed set of EIS guidelines using western coal development as the object of a case study. In the final analysis, the EIAP efforts may help answer, in the affirmative, one major, unanswered NEPA question: "whether environmental impact assessment can be made, as NEPA's authors envisioned, an integral part of Government planning rather than after-the-fact justification,,.l s
References 1 Marion Clawson, Ecology: Second Thoughts, Washington Post, Feb. 28, 1975, at A22. 2 Environmental Quality - 1974 (The Fifth Annual Report of the Council on Environmental Quality) (U.S. Gov. Printing Office: Washington, D.C., 1974), at 413. 3 Id. at 409. 4 36 Federal Register 7724 - 29, Apr. 23, 1971:38 Federal Register 20550 - 62, Aug. 1, 1973. 5 The National Environmental Policy Act of 1969, P.L. 91 - 190, 42 U.S.C. sections 4321 - 47 (1970). 6 J.S. Winder, "Ecological Considerations in the Preparation of Regional Energy Environmental Impact Statements", Proceedings of the Regional Energy Environmental Impact Statement Seminar sponsored by the Denver Federal Executive Board, March 6 - 7, 1975, Denver, Colorado. 7 K. Fletcher and M, F. Baldwin (eds.), A Scientific and Policy Review of the Prototype Oil Shale Leasing Program Final Environmental Impact Statement (EIAP/TIE, Washington, D.C., Oct. 29, 1973), at 105. 8 R. Applegate and M. F. Baldwin (eds.), A Scientific and Policy Review of the Draft Environmental Impact Statement: Crow Ceded Area Coal L ease Westmoreland Resourees Mining Proposal (EIAP/TIE, Washington, D.C., Nov. 29, 1973), at 19. 9 R.B. Smythe (ed.), A Scientific and Policy Review of the Draft Environmental Impact Statement: Wastewater Treatment and Conveyance System, North Lake Tahoe-Truckee River Basin (EIAP/TIE, Washington, D.C., March 30, 1974). 10 K. Fletcher (ed.), A Scientific and Policy Review of the Draft Environmental Impact Statement for the Proposed Federal Coal Leasing Program (EIAP/TIE, Washington, D.C.,
1974), at 4 - 6. 11 J. S. Winder and C. Loehner (eds.), A Scientific and Policy Review of the Draft Environ12
13 14 15
mental Impact Statement on the Development of Coal Resources in the Eastern Powder River Coal Basin of Wyoming (EIAP]TIE, Washington, D.C., Aug. 1974), at 8. G. L. Pearson, W. L. Pomeroy, G. A. Sherwood and J. S. Winder (eds.),A Scientific and Policy Review of the Final Environmental Statement for the Initial Stage, Garrison Diversion Unit (EIAP/TIE, Washington, D.C., Jan. 1975). A short review of this report was published in 1 Environmental Policy and Law, 48 (1975). Supraref. t0. at 174. Supra ref. 8, at 22- 23. G. Hifl, Midpoint of "Environmental Decade": Impact of National Policy Act Assessed, New York Times, Feb. 18, 1975, at C1. Environmental PolicF and Law, 1 (1975)