ANDRUS v. SIERRA CLUB
Legal provision: National Environmental Policy
Argument of John M. Harmon
Chief Justice Warren E. Burger: We'll hear arguments next in 625, Andrus against the Sierra Club.
Mr. Harmon, I think you may proceed whenever you're ready.
Mr. John M. Harmon: Mr. Chief Justice, may it please the Court.
This case is here on writ of certiorari to the United States Court of Appeals, the District of Columbia.
The question presented is whether the National Environmental Policy Act requires executive agencies to prepare environmental impact statements for their annual budget estimates submitted to OMB for consideration in the preparation of the President's budget.
Section 102 (2) (c) of NEPA provides that all agencies shall include an environmental impact statement in every recommendation or report on proposals for legislation and other major federal actions significantly affecting the quality of the human environment.
Respondents brought this action in July 1974 against the Secretary of Interior and the director of OMB alleging that the members of their respective organizations were adversely affected in their use of the National Wildlife Refuge System by certain proposals by the Department of Interior and OMB for the operation and maintenance of the refuge system.
The respondents claimed that the annual budget request prepared by the Secretary of Interior and submitted to OMB were proposals for legislation and other major federal action within the meaning of the National Environmental Protection Act, and therefore required the preparation of environmental impact statements.
The respondents sought a declaratory judgment to this effect.
They also sought a declaration that NEPA requires OMB to prepare procedures and guidelines to identify budget submissions by other agencies which require the preparation of environmental impact statements.
The District Court granted the respondent's motion for summary judgment holding that every budget estimate of an agency whose activities significantly impact on the environment is a proposal for legislation and other major federal action.
Chief Justice Warren E. Burger: I suppose Mr. Harmon that some of the actions of the 400 plus district judges in the United States and soon well over a hundred circuit judges to say nothing of other judges, might have an impact on the human environment.
Does that mean the judicial budget would have to have an impact statement?
Mr. John M. Harmon: Mr. Chief Justice in the sense -- in the theory of this case that in fact the actions, a decision would necessitate action below that may be major federal action significantly affecting the environment on that theory.
Again, that would be the follow through.
However, the environmental impact statement requirements of NEPA do not apply to the judicial branch or to the President.
It's our contention that they apply to all agencies, executive agencies within the executive branch.
Chief Justice Warren E. Burger: But the thrust of my question was partly about impact as a -- it's really pretty difficult to major isn't it, to define and to bound?
Mr. John M. Harmon: Well, that is certainly our contention in the sense that the argument made by respondents throughout this case indeed adopted by the District Court was that the budget estimates submitted by an agency in fact were proposals for all the actions which would be financed by the appropriation.
And that in that sense that the decisions, the budget decision was a decision to take those major federal actions with the significant environmental impact, and that is the broad reading that the District Court in fact accepted in this case.
The District Court ordered, directed the Secretary of Interior, the Director of OMB to prepare and consider environmental statements for each annual budget request for the National Wildlife Refuge System.
In addition, the District Court held that NEPA requires OMB to prepare procedures to identify all budget estimates which require an environmental impact statement.
Justice William H. Rehnquist: Do you understand this holding to be for the presumed benefit of the agencies who are submitting their requests to OMB, or for OMB in submitting its recommendations to the President?
Mr. John M. Harmon: It is our understanding of the holding, Your Honors that in fact it is for the benefit, the identification for the agencies which would be submitting their requests to OMB.
That is the point at which the respondents have sought an -- the filing of an environmental impact statement.
The court below did not discuss the submission of OMB to the President for the consideration in the budget.
Justice William H. Rehnquist: You get any sense that there is balance of taken a “new look” at their position from their brief in this Court?
Mr. John M. Harmon: Your Honor, that is our contention, the contention we have made in our reply brief which we have filed for this Court.
In fact, we think that the application of an environmental impact statement requirement to a submission by OMB in its function, in its budget function and the parts of OMB which provide and are specifically established for the purpose of providing advice and information to the President and the preparation of the President's budget are in fact beyond the reach of NEPA.
And for that reason, that application would raise a new issue in this case.
The Court of Appeals rejected the District Courts per se rule that every budget request is a proposal for legislation.
Instead, the Court of Appeals adopted its own per se rule that every budget estimate, every budget request which is taken after a new look and in depth programmatic review of a program, or which involved a significant change in the status quo in the current level of funding that those budget estimates were in fact proposals for legislation.
Justice Harry A. Blackmun: And what is your position as to that?
Mr. John M. Harmon: It is our position that one, these are not proposals that the budget estimate submitted by --
Justice Harry A. Blackmun: Suppose we hold they are then what?
Mr. John M. Harmon: Even if, even if the budget estimate is found by this Court to be a proposal within the meaning of the Act, it's our position that they are not a proposal for legislation.
It's our position that Congress observed the traditional distinction that is maintained between the legislation and appropriations and did not intend to reach proposals for appropriations as distinguished from legislation.
Justice Harry A. Blackmun: I think I followed you with respect to a positive proposal to build a dam.
But suppose that Interior has already established an ongoing program for wildlife refuge, and suppose then that the word comes down to cut interiors budget by 10%?
And so they reflect this in their budget request by eliminating funds for that particular program.
If a statement is not required there, it never will be required.
Mr. John M. Harmon: Your Honor --
Justice Harry A. Blackmun: I'm drawing the distinction between a positive action and a negative one.
Mr. John M. Harmon: And I appreciate your point.
The -- in our position on that is that the, first in the real sense the budget decision a 10% cut on a particular program, the decision is made, the budget, the appropriations decision, the funding decision, the economic decision and the political decision made by the President as to what the shape and content of his budget will be.
That is made first.
The implementation of that decision must await of course the approval by the full Congress of that appropriation request.
But in the real sense, there is no concrete, in most instances, there is no concrete proposal with respect to what Interior will do with this program or that program, whether it will not complete this dam or will undertake -- will cut enforcement personnel in another area.
Those decisions in the main, in the real sense are made subsequent to the budget decision, the paper decision.
The decision to which you refer, the action, the major federal action if it might be determined to be so, is an underlying action.
An underlying project, an underlying decision we acknowledge as we must that in fact the underlying project beginning or ending might in fact require an environmental impact statement depending upon the analysis of the given situation, the given factual situation.
But it is the underlying project, the underlying action and not the appropriation which is the major federal action under the statute.
The Court of Appeals in this case, again subsequent to the District Court's decision, the Department of Interior did prepare a detailed policy review of the Refuge System program.
The Court of Appeals had that review before it and held that this programmatic review satisfied the government's current obligations under NEPA with respect to the annual budget request for the National Wildlife Refuge System.
However, the Court of Appeals added and held that in the event of any significant change in the status quo, or any re-evaluation of the refuge program, the environmental impact statement requirements would apply anew.
The Court of Appeals went on to affirm that part of the District Court's decision that NEPA does require OMB to formulate procedures to identify the agency, the annual agency estimates which must be accompanied by an environmental impact statement.
As I have tried to outline, we would make three arguments to support our position that the judgment below should be reversed.
The first, as I've again attempted to describe is that the annual budget estimate submitted to OMB for consideration in the preparation of the President's budget is not a proposal as that term is used in NEPA.
In the executive budget process, the point at which there is a proposal, a formal proposal as that term was defined by this Court's decision in Kleppe versus Sierra Club is when the President submits his budget to the Congress.
The annual budget estimates which are prepared by the agencies submitted to OMB in September for consideration in the preparation of the President's budget are but part of the germination process leading to the final proposal, again the President's budget.
Respondents argue that these budget estimates are final proposals because the agency is -- no further action is required by the agency.
But the fact that the agency may have had its last word on a budget proposal, a budget estimate, does not make that a final proposal.
Indeed Congress has vested in the President the exclusive statutory authority to prepare and submit to the Congress the budget.
That was in the budget in the Accounting Act of 1921 in that same statute, Congress expressly prohibited the agencies from submitting independent budgets to the Congress.
Since the agencies neither have the authority, indeed they are expressly precluded from submitting these budget estimates to the Congress.
Those estimates can only be part of the process of the development of a final proposal, the President's budget.
Chief Justice Warren E. Burger: Would you analogize it Mr. Harmon to the process which a division of a department submits to the head of the department before the department itself submits the total budget request to the OMB.
Mr. John M. Harmon: Mr. Chief Justice it would be exactly our point that if the respondents contention were correct that the fact that the agency has had its final word, its last say that no further action is required by the agency.
If that made this a final proposal then as you suggest that each stage of the way, and that's the way the budget process works from the field office, from the person located in charge of an individual refuge area all the way up, at each level of review with a broader perspective that at each level there would be a final proposal, if that were the law.
Chief Justice Warren E. Burger: Of course at least a proposal.
Mr. John M. Harmon: That is correct.
Justice Harry A. Blackmun: You keep putting the word final in their final proposal.
The statute doesn't use that.
Mr. John M. Harmon: The statute does not use that, Your Honor, but this Court used that phraseology in Kleppe, in its decision in Kleppe versus Sierra Club.
In that case as here, at various stages there is contemplated action.
There is input from the various sectors of an agency, and our case the various sectors of the government -- of the executive branch of the government.
And those suggestions, considerations, discussion are part of what the Court described as the germination process to produce a final proposal.
Our position is that in this case, only the President, only the President has the authority to make a final proposal.
And in fact he will, does, can revise, change the budget proposals as they come to him.
Justice Harry A. Blackmun: Of course I must confess, for me the word proposal reeks of something that is not final.
Chief Justice Warren E. Burger: Well, is it final when it goes up to the Congress from the President in that sense?
Mr. John M. Harmon: Certainly not.
The proposal, the proposal in that sense and that gives us a good context in which to consider the finality of a proposal.
The proposal itself as it goes through the of course is not final.
Our Constitution returning to first principles does vest in the Congress the power to lay taxes and appropriate moneys.
Justice Thurgood Marshall: When does it the proposal become final?
Mr. John M. Harmon: The proposal becomes final --
Justice Thurgood Marshall: I assume you're going to say to what Congress acts?
It's no longer proposal then.
Mr. John M. Harmon: That is correct Your Honor, and that is not our position.
The proposal --
Justice Thurgood Marshall: Well, isn't your position that you don't need any statements until after it gets to Congress?
Mr. John M. Harmon: No, it is our position that --
Justice Thurgood Marshall: Well when?
Well when would you be obliged to file the statement?
Mr. John M. Harmon: It's our position that we would not be obliged to file a statement.
Justice Thurgood Marshall: Ever?
Mr. John M. Harmon: For the budget.
Justice Thurgood Marshall: You mean by -- nobody will ever have to file the statement?
Mr. John M. Harmon: For the budget.
Justice Thurgood Marshall: Right.
That's your position?
Mr. John M. Harmon: That's our position.
If the budget for example appropriates money to build three dams, 12 nuclear power stations, the action would have to be considered.
The action would have to be considered at the time it was taken.
The major federal action to be considered is that underlying decision, that implementation, that spending of the money.
At that time we acknowledge that there might well be required an environmental impact statement.
Justice Thurgood Marshall: Well why didn't you use the word proposal at all?
According to you, you don't need any impact statements on any proposal.
Mr. John M. Harmon: The proposal --
Justice Thurgood Marshall: Isn't that your position?
Mr. John M. Harmon: No, Your Honor, it is not.
The statute states that a proposal for a major federal action, a proposal for rule making for example.
That does have a significant impact.
Justice Thurgood Marshall: Yes, the Department of Interior wants to propose that you build a dam and somebody from Congress suggests that.
And eventually it gets to Congress and Congress adopts it.
Now, all I'm asking you is when is that a proposal and when is it not?
Mr. John M. Harmon: When the --
Justice Thurgood Marshall: On this one item.
Mr. John M. Harmon: When the Secretary of Interior proposes and let's suppose it is a proposal to build a dam, a piece of substantive legislation seeking the authorization to build the dam.
That proposal could be a proposal for legislation which would significantly affect the human environment.
Justice Thurgood Marshall: The question is, when does it need the impact statement?
Mr. John M. Harmon: When the Secretary of Interior has formulated, has before him a proposal.
And before he finalizes that proposal there may be at that point the requirement of an environmental impact statement.
Justice Thurgood Marshall: What would be required in order to require the impact statement in the Interior Department?
Mr. John M. Harmon: That will be a proposal for legislation.
Justice Thurgood Marshall: Well, what would make it a proposal, the word proposal?
Mr. John M. Harmon: The fact that the Secretary of Interior had a final plan before him, a final proposal.
Justice Thurgood Marshall: No.
Mr. John M. Harmon: Perhaps alternatives.
Justice Thurgood Marshall: Are all final plans proposals?
Mr. John M. Harmon: If they are proposals for legislation, yes Your Honor.
Justice Thurgood Marshall: All final plans for a legislation are a proposals under this Act?
Mr. John M. Harmon: If in fact they will be proposed by -- yes, yes I think that would be my position.
Chief Justice Warren E. Burger: Congress could (Voice Overlap) --
Justice Thurgood Marshall: I really don't approve.
Chief Justice Warren E. Burger: -- entirely independent of this particular legislation.
A committee of the Congress or the Congress as a whole when any legislative proposal was submitted by any department could say “prepare an impact statement or we aren't going to pull in a hearing.”
Mr. John M. Harmon: Absolutely correct, Your Honor, and certainly --
Chief Justice Warren E. Burger: They can do that at every stage while they're considering the legislation couldn't they?
Mr. John M. Harmon: That is our position and that goes to the question of the appropriateness of traditional intervention in a process where Congress has before it the means as it always has to require the information that it needs to make its decisions.
And also raises the question of whether in fact the imposition of an environmental impact statement requirement at this stage might interfere with the ability of Congress to obtain the information, the candid views, the frank opinion of the members of the executive branch who are appearing before an appropriation subcommittee to respond to questions, because not all proposals for federal funding come from the executive branch.
In fact, many are interjected just at that stage, the subcommittee, the appropriations subcommittee with the idea, with the constituent, with the interest group, with the proposal that appears before the committee makes that proposal beyond the President's budget.
And there again, the Congress will be considering that proposal and will be seeking the advice and opinions of the executive branch, the Department of Interior.
Justice Thurgood Marshall: Suppose Congress doesn't do it in a particular act?
That will violate the statute, I don't think Congress did, I said the Department of Interior did.
I don't ---
Mr. John M. Harmon: It's our position --
Justice Thurgood Marshall: I don't know -- I didn't know if (Inaudible) this act was whether Congress asked for something?
Mr. John M. Harmon: No.
Your Honor, it's our position that this Act does not apply to the budget process.
Justice Thurgood Marshall: At all?
Mr. John M. Harmon: That Congress did not intend it to apply --
Justice Thurgood Marshall: Well, Congress could said that, couldn't it very easily?
Mr. John M. Harmon: That is our position exactly.
Justice Thurgood Marshall: But Congress didn't say that.
Mr. John M. Harmon: Congress did not say that and there is nothing, nothing in the legislative history to suggest that Congress considered this Act is applying to the budget process.
Furthermore, is inconceivable to imagine that Congress aware of the significant disruptive impact that such a requirement would have on the executive and congressional budget process would have imposed this requirement without discussion.
Indeed Congress -- when Congress seeks information from -- seeks additional budget information it is traditionally done so by amending the Budget and Accounting Act.
It is done in 1950, 1958 and as recently as 1974 after the passage -- after the passage of NEPA.
Again, with those amendments, congressional Budget Act of 1974 had no mention of an environmental impact statement.
Justice Thurgood Marshall: In order to maintain you position, you don't have to move so far as to say all budgetary items are immunized, do you?
Mr. John M. Harmon: Our position is that all budget -- all budgetary items that the budget process is not covered and is not subject to the environment impact statement requirements.
Our third argument is response to contention by respondents that there is an alternative basis for upholding the decision of the court below of the Court of Appeals in this case.
They argue that the budget estimates are not only proposals for legislation, but they are also proposals for major federal action.
Their argument is that at the time an agency puts together its proposed proposal, its estimates, its budget estimates that at that time it is making a decision a proposal for all the major -- all of the actions, all of the federal actions that will be funded by that appropriation.
The District Court agreed with that proposition.
The Court of Appeals rejected it on the grounds that it would lead to the absurd result that every budget estimate -- every budget estimate would require an environmental impact statement.
Justice Byron R. White: In the scenario of zero budgeting, I guess it would that approach?
Mr. John M. Harmon: Your Honor, it's our submission that that logic -- that the logic of that position is necessarily that with the -- with all of the actions that are funded by each budget appropriation that in fact it would apply practically to all agencies and all budget proposals.
Chief Justice, thank you.
I would like to reserve this additional time for rebuttal.
Argument of James Hillson Cohen
Chief Justice Warren E. Burger: Mr. Cohen.
Mr. James Hillson Cohen: Mr. Chief Justice, and may it please the Court.
The National Environmental Policy Act of 1969 is this nation's charter for the protection of the environment.
The action forcing mechanisms in Section 102 (2) (c) of NEPA are intended to serve an invaluable management tool for the purposes of agency decision making.
By so doing, NEPA has over the course of time actually reduced cost and mitigated adverse effects upon the environment by increasing the planning process during the development of agency proposals for either legislation, or proposals for major federal action.
This case involves the plain language of NEPA, Section 102 (2) (c) and indicates that every agency is to use all practicable means at the earliest possible stage in decision making, and to the fullest extent possible in incorporating NEPA into its decision making process.
Under the terms of this Court's opinion in Flint Ridge, the Court has indicated that unless there is an expressed prohibition or unless compliance is impossible with NEPA, NEPA and the action forcing requirements of the environmental impact statement are intended to apply to that.
NEPA's language, the legislative history of the Act, the consistent and contemporaneous interpretations by the counsel on environmental quality for nearly a decade --
Justice William H. Rehnquist: Let me ask you a question, Mr. Cohen, if I may about the regulations by the CEQ?
Congress did not grant the CEQ authority to issue rules and regulations interpreting the substantive provisions of the Act, did it?
Mr. James Hillson Cohen: That is correct, Mr. Justice Rehnquist.
The -- under the terms of NEPA, CEQ was created and under the terms of two separate executive orders issued by the President, CEQ was empowered to develop guidelines and ultimately regulations implementing and interpreting NEPA.
Justice William H. Rehnquist: But those -- though that authority extends from an executive order and not from an Act of Congress.
Mr. James Hillson Cohen: That is correct, Your Honor, in except in so far as CEQ itself was directed under the terms of NEPA to assist in agency decision making in terms of the interpretations for implementing NEPA, and I'm speaking now of Section 102 (2) (b) of the Act.
Justice William H. Rehnquist: Do you think that's the same thing as the authority Congress has conferred on some agencies to issue rules and regulations interpreting meaning of this legislative section itself?
Mr. James Hillson Cohen: We certainly feel Your Honor that the ability by CEQ to prepare these guidelines and regulations has at least the same authority as those which would emanate from the Congress.
They -- CEQ was created under NEPA.
It implemented regulations through two separate executive orders and perhaps more importantly, this Court has given deference to agency regulations including the council on environmental quality or with --
Justice Byron R. White: Which would -- which -- oh, excuse me Mr. Rehnquist go ahead.
Justice William H. Rehnquist: You're relying on an executive order then yet the executive branch is here arguing against you.
Mr. James Hillson Cohen: That is correct Your Honor in so far as the authority for CEQ to actually interpret the Act, that is correct.
We are relying upon the executive orders and as I indicated, the inherent authority under NEPA itself.
Justice Byron R. White: Was CEQ still of the view that you suggest?
Mr. James Hillson Cohen: CEQ is not still of the view Mr. Justice White.
Justice Byron R. White: So which view do we give deference to?
Mr. James Hillson Cohen: Well it is our contention as we have indicated Your Honor that the deference ought to be accorded to eight years of consistent and contemporaneous interpretation.
Justice Byron R. White: So if this suit had come up ten years from now, you'd give deference to the most recent one?
Mr. James Hillson Cohen: We are concerned, as we've indicated, Your Honor, that the interpretations are without any reasonable basis in so far as under the new interpretations they provide and express exclusion for budget request from the definition of legislation.
Now under the previous three sets of guidelines from the counsel and environmental quality, the definition of legislation was not provided.
In point of fact there was a definition of actions which incorporated explicitly the terms of budget request including appropriations request.
And we believe that this consistent interpretation, particularly in view of the General Electric case which Mr. Justice Rehnquist wrote, indicate that there is no new development.
That there is no new source of a legislation --
Justice Byron R. White: So don't you think the -- is it correct or not that CEQ now is before this Court in the -- through the United States indicating that these requests should not be within the reach of NEPA?
Mr. James Hillson Cohen: I believe CEQ has indicated in its regulations themselves, Your Honor that it felt that the budget process --
Justice Byron R. White: So if you -- is essentially being represented here by the United States?
Mr. James Hillson Cohen: I believe that is correct Your Honor.
The critical importance of the budget process itself and federal -- in federal agency decision making we feel ought not to be underestimated.
The legislative history of the budget process indicates quite clearly, we believe, that the action forcing mechanism of budget allocations and resource decisions at the agency level which go on for nearly 10 months represent a significant stage in agency decision making.
In point of fact, the legislative history has indicated that the budget process represents the judgment book by which agencies live and by which agencies die.
And we feel that under those circumstances, the critical process whereby a decision comes from the agency in the form of a proposal to OMB and ultimately for legislation or major federal action to the Congress represents an appropriate stage under the terms of Kleppe where the proposal has reached the stage of sufficient maturity and sufficient definiteness to be accorded the weight that it should be accorded in the form of a -- an EIS.
Justice Byron R. White: And what about OMB's proposals to the President or recommendations?
Mr. James Hillson Cohen: Well under the terms of the budget in Accounting Act, Your Honor, we'll recall that the President transmit --
Justice Byron R. White: Thank you very much.
Mr. James Hillson Cohen: Excuse me, Your Honor?
Justice Byron R. White: No, I'm sure that I don't recall the --
Mr. James Hillson Cohen: The President transmits the budget to the Congress, whereas the -- under Section 206 -- 201 rather of the Act, the agency head is required to prepare the budget.
And this preparation goes on for some ten months.
And we believe that by the time it has reached the stage where it is forwarded to OMB.
Justice Byron R. White: I understand that but what's the next step after that?
Mr. James Hillson Cohen: After it goes through OMB, Your Honor, it then is transmitted to the President for his formal --
Justice Byron R. White: And what about that stage, because there're a lot of changes go on and --
Mr. James Hillson Cohen: That is correct, Your Honor.
Justice Byron R. White: -- in OMB.
Do you think another round of statements?
Mr. James Hillson Cohen: We certainly do not Your Honor.
We feel that one environmental impact statement is all that needs to be required.
It needs to be required in the --
Justice Byron R. White: Well what if OMB just cancels out a proposal or decides to shut down the existing program?
Mr. James Hillson Cohen: Indeed that represents the particular instance where an environmental impact statement would be most needed and most valuable, because it would serve.
Justice Byron R. White: But I thought you said you didn't need a statement supporting an OMB recommendation of the President?
Mr. James Hillson Cohen: That is correct, Your Honor, the EIS would be prepared by the agency for --
Justice Byron R. White: Well I know but the agency has prepared one, let's just say -- assume the agency has prepared one and it wants to have a new program or it wants to continue an existing program.
And the OMB disagrees with it on both counts.
It won't start the new program and it won't continue the old one.
Does that decision require in?
Mr. James Hillson Cohen: We would submit that it is not Your Honor that the EIS has served its purpose of assisting in identifying in considering environmental consequences by the time the forwarding agency which is prepared the budget forwards its submission to OMB.
Justice Byron R. White: But you don't -- you don't argue that if that an agency that just wants the same money that it did last year for the same program needs to prepare an environmental impact statement, do you?
Mr. James Hillson Cohen: I'm sorry, Your Honor.
Justice Byron R. White: Say a -- the Department of Interior has program “X” that's been going on for 20 years and every year it has taken “Y” dollars, and again it submits its budget proposal to OMB, program “X” for “Y” dollars.
Does that require an EIS for it?
Mr. James Hillson Cohen: We are supporting the proposition articulated by the Court of Appeals that only in those instances where the agency has actually undergone a careful review of its program and has determined --
Justice Byron R. White: Alright, so is your answer is no to my question?
Mr. James Hillson Cohen: That is correct, Your Honor.
Justice Byron R. White: And then it goes to OMB and OMB says, “We look at this ‘X' program for ‘Y' dollars, it's gone long enough.
No more ‘X' program for ‘Y' dollars."
Now there is a -- that's quite a change.
And it might be illuminating a -- some dark line somewhat, you know what I mean?
Mr. James Hillson Cohen: It may be, Your Honor, and we would submit that so long as the environmental considerations have been identified and analyzed and the President --
Justice Byron R. White: They'd never been, they'd never been.
The agency is never submitted an EIS on this program it's been going for 20 years.
Mr. James Hillson Cohen: If the program commitment of resources to the program represents a programmatic course of action following a review then we would submit that the agency forwarding its budget request would have to prepare an EIS.
Justice Byron R. White: I understand that but in my example it did not have to submit one.
But the OMB cut the program out on its own.
The agency didn't propose it.
OMB just decided that this program has gone on long enough.
And you say it still you wouldn't need an EIS there.
Mr. James Hillson Cohen: That --
Chief Justice Warren E. Burger: Suppose the program that we're talking about that Mr. Justice White has postulated is a program of $200 million for clean air and the OMB just cuts it out.
Justice Harry A. Blackmun: Let me interrupt you also.
Isn't this the question I asked opposing counsel?
Mr. James Hillson Cohen: Your Honor, the question which Mr. Justice Blackmun addressed to opposing counsel as I understood it was a -- involved a situation where the forwarding the agency had determined that it wished to dramatically reduce or to eliminate a program from its program commitments.
I did not understand the hypothetical which you presented to be one where the OMB itself --
Justice Harry A. Blackmun: Does it make a difference?
Mr. James Hillson Cohen: Well, we would submit it is, Your Honor.
It does make a difference in so far as the EIS serves in the agency decision making process at the budget forwarding level.
Now if the Court is suggesting that there may be a proposal which is made by the Office of Management and the Budget in the form a dramatic cutback of a program, of course we would suggest that that may be the time when there is a proposal.
We have indicated in our pleadings before the District Court as well as before in the Court of Appeals that a proposal is made by the time it is -- the budget request is forwarded to the President of the United States.
We believe that the EIS needs to be prepared at the time it leaves the forwarding agency and before it gets to OMB.
Chief Justice Warren E. Burger: What you're saying then is that you really said it two ways that it's a proposal then it goes from OMB to the President that it's also a proposal then it goes from the agency to the OMB in the first instance.
Mr. James Hillson Cohen: We would suggest, Your Honor, that it is a proposal by the time it leaves the agency and goes to OMB.
Justice William H. Rehnquist: Mr. Cohen, supposing that the National Wildlife and Refuge Service proposes a 100% increase in its budget to OMB so they can acquire a good deal of new land for wildlife refuges.
And under your view, I take it, it ought to submit an EIS in connection with that.
And then OMB says “Quite the contrary, we're going to dissolve NWRS and sell it off to the private investors to build condominiums.”
Now, do you need two EIS, one from the agency and one from OMB in that case?
Mr. James Hillson Cohen: No, we would submit that only one EIS needs to be prepared --
Justice William H. Rehnquist: Where?
Mr. James Hillson Cohen: -- from the agency.
Chief Justice Warren E. Burger: But when the President, he might not -- he might be too busy to know what the agency proposed then he's going to be perhaps victimized and the environment victimized by the OMB?
Mr. James Hillson Cohen: Well we would submit, Your Honor, that the preparation of an EIS, even if it were not publicly disclosed and not made available for comment to the public until the budget request were submitted to the Congress.
At very least, OMB and the President of the United States would have the benefit of reviewing in determining the environmental consequences that might --
Chief Justice Warren E. Burger: -- you don't really think that the President going through budgets which are like several New York telephone books is going to be when you look at the impact statements on very many of those programs?
Mr. James Hillson Cohen: We would assume, Your Honor, that in the very limited number of instances where an EIS would need to be prepared under the articulation of the Court of Appeals opinion that in those few instances, the President and his staff would be available to review significant environmental consequences of a considered programmatic review which issues -- ushers in a programmatic course of action.
Justice Thurgood Marshall: Well Mr. Cohen, is there anything to stop the President for asking for it, assuming there's nothing there?
Couldn't he ask for an EIS?
Mr. James Hillson Cohen: I believe that --
Justice Thurgood Marshall: You believe?
Mr. James Hillson Cohen: We believe that the President certainly could ask for an EIS.
Justice Thurgood Marshall: You believe he -- you have some doubt that he could ask for it?
Mr. James Hillson Cohen: We have no doubt, Your Honor.
Justice Thurgood Marshall: Alright.
And same thing Congress could ask for it.
Mr. James Hillson Cohen: That is correct, Your Honor.
And we believe that --
Justice Thurgood Marshall: Well, didn't that solve your problem?
Mr. James Hillson Cohen: It doesn't solve the problem, Your Honor because --
Justice Thurgood Marshall: If the President wants it he can get it.
Mr. James Hillson Cohen: That is correct.
Justice Potter Stewart: Your point is that one is required.
Mr. James Hillson Cohen: Our point is that one is required under the terms of NEPA itself and more importantly that the primary purpose of an environmental impact statement is to serve the agency which is making a proposal for legislation, or making a proposal for major federal action.
And that the EIS needs to be prepared not as an post hoc justification for an allocation on the part of an agency for a particular program.
But rather in order to analyze the potential consequences over proposal.
In fact the terms of NEPA itself speak as if a proposal might be implemented.
Section 102 (2) (c) says that “should a proposal be implemented” indicating that not all of the final decisions will have been made regarding budget allocations and regarding commitments to funding for a given program.
Under the terms of NEPA, we would suggest that if the Congress had intended to exclude such a major function of the governmental process from the terms of NEPA, it would have done so expressly.
Indeed, the Freedom of Information Act passed approximately fours years prior to NEPA, did expressly exclude various forms of documents from public disclosure and that Congress could well have said in passing NEPA that it intended to exclude budget requests from proposals for legislation or proposals for major federal action.
It did not do so.
Those federal courts which have interpreted NEPA and the budget process have also suggested and held that EIS need to be prepared for budget request.
In addition, CEQ has consistently stated as we indicated that budget requests for appropriations need to be accompanied by environmental impact statements.
Even the implementing agency regulations have indicated that NEPA covers their budget requests, although none have ever complied.
The proposal for legislation in this case, we believe clearly covers a budget request and that the term legislation is intended to embrace the -- and appropriations.
In addition, the term major federal actions, we believe embraces the term budget request or a request for appropriations.
In many instances, discrete federal projects have been accorded environmental impact statement coverage, and we believe that in an instance where a discrete federal project is subject to the terms of the Act, it certainly a decision by the agency to commit major resources represents the first and critical significant decision at the agency level which would warrant an EIS for that proposal.
The Government has indicated that there is a conflict between the terms of the Budget and Accounting Act of 1921 and the terms of NEPA.
And we would submit that in fact is not the case.
There is no conflict.
There is no conflict and under the terms of the Act itself, confidentiality is not provided and environmental impact statement is an independently prepared document, one which can serve the purpose of agency decision making and which would not require the disclosure of actual budget materials.
In addition, any documents which are made available to the public can be made available in accordance with the Freedom of Information Act.
And we would submit that in this circumstance where there are limited number of instances involving a limited number of programs that the budget request process is covered by NEPA.
Thank you, Your Honor.
Rebuttal of John M. Harmon
Chief Justice Warren E. Burger: Thank you.
Do you have anything further, Mr. Harmon?
Mr. John M. Harmon: Mr. Chief Justice, in response to counsel's point attempt to describe the consistent interpretation of the NEPA requirement, I would simply like to point out that the Congress which passed NEPA has for 10 years received and acted upon budget proposals from the President without the preparation of environmental impact statements by the agencies making their individual proposals.
I make this point simply to underline that this illustrates a common understanding of both Congress and the executive branch as to the inapplicability of NEPA to the budget process.
Chief Justice Warren E. Burger: Thank you very much gentlemen.
The case is submitted.