Origins and development - Introduction to Environmental Impact Assessment - page 32

2. Challenging the adequacy of an agency's EIS. This raised issues such as whether an
EIS adequately addressed alternatives, and whether it covered the full range of
significant environmental impacts. A famous early court case concerned the
Chesapeake Environmental Protection Association's claim that the Atomic Energy
Commission did not adequately consider the water quality impacts of its proposed
nuclear power plants, particularly in the EIA for the Calvert Cliffs power plant. 2 The
Commission argued that NEPA merely required the consideration of water quality
standards; opponents argued that it required an assessment beyond mere compliance
with standards. The courts sided with the opponents.
3. Challenging an agency's substantive decision, namely its decision to allow or not to
allow a project to proceed in the light of the contents of its EIS. Another influential
early court ruling 3 laid down guidelines for the judicial review of agency decisions,
noting that the court's only function was to ensure that the agency had taken a “hard
look” at environmental consequences, not to substitute its judgement for that of the
agency.
The early proactive role of the courts greatly strengthened the power of environmental
movements and caused many projects to be stopped or substantially amended. In many
cases the lawsuits delayed construction for long enough to make them economically
infeasible or to allow the areas where projects would have been sited to be designated as
national parks or wildlife areas (Turner 1988). More recent decisions have been less
clearly pro-environment than the earliest decisions. The flood of early lawsuits, with the
delays and costs involved, was a lesson to other countries in how not to set up an EIA
system. As will be shown later, many countries carefully distanced their EIA systems
from the possibility of lawsuits.
The CEQ was also instrumental in establishing guidelines to interpret NEPA,
producing interim guidelines in 1970, and guidelines in 1971 and 1973. Generally the
courts adhered closely to these guidelines when making their rulings. However, the
guidelines were problematic: they were not detailed enough, and were interpreted by the
federal agencies as being discretionary rather than binding. To combat these limitations,
President Carter issued Executive Order 11992 in 1977, giving the CEQ authority to set
enforceable regulations for implementing NEPA. These were issued in 1978 (CEQ 1978)
and sought to make the NEPA process more useful for decision-makers and the public, to
reduce paperwork and delay and to emphasize real environmental issues and alternatives.
2.2.3 A summary of NEPA procedures
The process of EIA established by NEPA, and developed further in the CEQ regulations,
is summarized in Figure 2.1. The following citations are from the CEQ regulations (CEQ
1978).
[The EIA process begins] as close as possible to the time the agency is
developing or is presented with a proposal… The statement shall be
prepared early enough so that it can serve practically as an important
contribution to the decision-making process and will not be used to
rationalize or justify decisions already made. (§1502.5)