Guide to the National Environmental Policy Act: Interpretations, Applications, and Compliance

By Valerie M. Fogleman | Go to book overview

why the action is unsatisfactory, and it must specify the remedial activities it considers necessary. 197 In its reply, the lead agency must fully address issues raised in the referral, 198 support them with evidence, and respond to the referring agency's recommendations. Interested parties may submit their views to the CEQ. 199

The CEQ has several options when it receives a referral. It may conclude that the referral process has resolved the problem; mediate between the referring and lead agencies; obtain additional views and information by holding public meetings or hearings; refer the matter back to the referring and lead agencies because it is not an issue of national importance, or because it does not consider the difference to be irreconcilable; publish its findings and recommendations; or submit the referral, response, and its recommendation to the president for action. 200

Although a decision on a referral by the CEQ does not bind the agencies involved, in general the agencies have accepted the CEQ's recommendations. 201 Agencies have agreed to modify the action, 202 they have compromised, 203 and they have adopted proposed changes by the CEQ. 204 Congress has helped persuade agencies to accept the CEQ's recommendations by use of its appropriations power. 205 Although an agency does not violate NEPA by rejecting the CEQ's and the EPA's advice subsequent to a review and referral it should articulate its reasons for doing so. 206 A referral by the EPA and a subsequent determination by the CEQ may influence a subsequent judicial challenge. The Ninth Circuit accorded deference to an agency's modifications to its regulations implementing NEPA when the regulations had been revised according to CEQ suggestions following a section 309 referral. 207

The referral process has been used sparingly. From 1974-1984 there were twenty-two referrals: thirteen by the EPA, six by the Department of the Interior, one by the EPA and the Department of the Interior, one by the Department of Defense, and one from the Advisory Council on Historic Preservation. 208 The lead agencies in the above referrals were the Corps of Engineers in nine referrals, the Federal Highway Administration in four referrals, the Bureau of Land Management in four referrals, and the Department of Transportation in two referrals. The Atomic Energy Commission, the Department of Housing and Urban Development, and the Federal Aviation Administration were each referred once. 209


NOTES
1.
42 U.S.C. § 4342 ( 1988).
2.
See 115 Cong. Rec. 40,422 ( 1969) (remarks of Sen. Allott).

-46-

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Guide to the National Environmental Policy Act: Interpretations, Applications, and Compliance
Table of contents

Table of contents

  • Title Page iii
  • Title Page vii
  • Preface xi
  • Acknowledgments xiii
  • Acronyms xv
  • 1 - The National Environmental Policy Act 1
  • 1.1 INTRODUCTION 1
  • Notes 16
  • 2 - Administrative Structure for Implementing Nepa 28
  • Notes 46
  • 3 - Threshold Determinations 56
  • 3.1 INTRODUCTION 56
  • Notes 66
  • 4 - Environmental Assessments 77
  • 4.1 INTRODUCTION 77
  • Notes 95
  • 5 - Environmental Impact Statements 110
  • 5.1 INTRODUCTION 110
  • Notes 142
  • 6 - Nepa Litigation 168
  • 6.1 INTRODUCTION 168
  • Notes 194
  • 7 - State Statutes 213
  • 7.1 INTRODUCTION 213
  • Notes 248
  • Appendix A The National Environmental Policy Act of 1969 249
  • Appendix B The Council on Environmental Quality Regulations 257
  • Bibliography 301
  • Index 305
  • About the Author 311
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