Section 102(2)(C) of the National Environmental Policy Act of
1969 (NEPA) requires environmental impact statements (EIS's) to be
included in recommendations or reports of federal agencies on
"proposals for legislation and other major Federal actions
significantly affecting the quality of the human environment."
Contending that § 102(2)(C) requires federal agencies to prepare
EIS's to accompany appropriation requests, respondents, three
organizations with interests in the preservation of the
environment, brought suit in Federal District Court against
petitioners, the Secretary of the Interior and the Director of the
Office of Management and Budget (OMB). Respondents alleged that
proposed curtailments in the budget of the National Wildlife Refuge
System would significantly affect the quality of the human
environment, and hence should have been accompanied by an EIS
prepared both by the Department of the Interior's Fish and Wildlife
Service, which administers the Refuge System, and by OMB. The
District Court granted summary judgment for respondents and ordered
petitioners to prepare EIS's on annual proposals for financing the
Refuge System. The District Court's holding was modified by the
Court of Appeals, which concluded that, while § 102(2)(C) has no
application to a routine appropriation request for continuance of
an ongoing program, an EIS is required when an appropriation
request accompanies a proposal for taking new action that
significantly changes the
status quo, or when the request
"ushers in a considered programmatic course following a
programmatic review."
Held: Section 102(2)(C) does not require federal
agencies to prepare EIS's to accompany appropriation requests. Pp.
442 U. S.
355-365.
(a) Appropriation requests, even those which are the result of
an agency's "painstaking review" of an ongoing program, are not
"proposals for legislation" within the meaning of § 102(2)(C). NEPA
makes no distinction between "proposals for legislation" that are
the result of "painstaking review," and those that are merely
"routine"; and the interpretation of NEPA by the Council on
Environmental Quality (CEQ) under its current mandatory regulations
which specify that "legislation" does not include appropriation
requests, is entitled to
Page 442 U. S. 348
substantial deference even though the regulations reverse CEQ's
interpretation under earlier advisory guidelines that were in
effect at the time of the Court of Appeals' decision. Moreover,
CEQ's current interpretation is consistent with the traditional
distinction which Congress has drawn between "legislation" and
"appropriation," the rules of both Houses prohibiting "legislation"
from being added to an appropriation bill. Pp.
442 U. S.
356-361.
(b) Nor do appropriation requests constitute "proposals for . .
. major Federal actions" for purposes of § 102(2)(C). Appropriation
requests do not "propose" federal actions at all, but instead fund
actions already proposed. Thus, § 102(2)(C) is best interpreted as
applying to those recommendations or reports that actually propose
programmatic actions, rather than to those which merely suggest how
such actions may be funded. Even if changes in agency programs
occur because of budgetary decisions, an EIS at the appropriation
stage would only be repetitive of the EIS that must accompany any
proposed changes in the agency's programs that would significantly
affect the quality of the human environment. Pp.
442 U. S.
361-364.
189 U.S.App.D.C. 117, 581 F.2d 895, reversed.
BRENNAN, J., delivered the opinion for a unanimous Court.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The question for decision is whether § 102(2)(C) of the National
Environmental Policy Act of 1969 (NEPA), 83 Stat.
Page 442 U. S. 349
853, 42 U.S.C. § 4332(2)(C), requires federal agencies to
prepare environmental impact statements (EIS's) to accompany
appropriation requests. We hold that it does not.
I
NEPA sets forth its purposes in bold strokes:
"The purposes of this Act are: To declare a national policy
which will encourage productive and enjoyable harmony between man
and his environment; to promote efforts which will prevent or
eliminate damage to the environment and biosphere and stimulate the
health and welfare of man; to enrich the understanding of the
ecological systems and natural resources important to the Nation. .
. ."
83 Stat. 852, 42 U.S.C. § 4321. [
Footnote 1] Congress recognized, however, that these
desired goals could
Page 442 U. S. 350
be incorporated into the everyday functioning of the Federal
Government only with great difficulty.
See S.Rep. No.
91-296, p. 19 (1969). NEPA therefore contains "action-forcing
procedures which will help to insure that the policies [of the Act]
are implemented."
Ibid. See Kleppe v. Sierra
Club, 427 U. S. 390,
427 U. S. 409
(1976). Section 102(2)(C) of the Act sets out one of these
procedures:
"The Congress authorizes and directs that, to the fullest extent
possible . . . (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,"
"(ii) any adverse environmental effects which cannot be avoided
should the proposal be implemented,"
"(iii) alternatives to the proposed action,"
"(iv) the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity, and"
"(v) any irreversible and irretrievable commitments of resources
which would be involved in the proposed action should it be
implemented."
83 Stat. 853, 42 U.S.C. § 4332(2)(C) (emphasis supplied).
The thrust of § 102(2)(C) is thus that environmental concerns be
integrated into the very process of agency decisionmaking. The
"detailed statement" it requires is the outward sign that
environmental values and consequences have been considered during
the planning stage of agency actions. [
Footnote 2] If
Page 442 U. S. 351
environmental concerns are not interwoven into the fabric of
agency planning, the "action-forcing" characteristics of §
102(2)(C) would be lost.
"In the past, environmental factors have frequently been ignored
and omitted from consideration in the early stages of planning. . .
. As a result, unless the results of planning are radically revised
at the policy level -- and this often means the Congress --
environmental enhancement opportunities may be foregone, and
unnecessary degradation incurred."
S.Rep. No 91-296,
supra, at 20. For this reason, the
regulations of the Council on Environmental Quality (CEQ) require
federal agencies to "integrate the NEPA process with other planning
at the earliest possible time to insure that planning and decisions
reflect environmental values. . . ." 43 Fed.Reg. 55992 (1978) (to
be codified at 40 CFR § 1501.2). [
Footnote 3]
Page 442 U. S. 352
In 1974; respondents, three organizations with interests in the
preservation of the environment, [
Footnote 4] brought suit in the Federal District Court for
the District of Columbia alleging that § 102(2)(C) requires federal
agencies to prepare EIS's [
Footnote
5] to accompany their appropriation requests. Respondents named
as defendants the Secretary of the Interior and the Director of the
Office of Management and Budget (OMB), and alleged that proposed
curtailments in the budget of the National Wildlife Refuge System
(NWRS), 80 Stat. 927, 16 U.S.C. 668dd, would "cut back
significantly the operations, maintenance, and staffing of units
within the System." [
Footnote
6] Complaint � 17. The System is administered by the Fish and
Wildlife Service of the Department of the Interior, and consists of
more than 350 refuges encompassing more than 30 million acres in 49
States. The primary purpose of the NWRS is to provide a national
program
"for the restoration preservation, development and management of
wildlife and wildlands habitat; for the protection and preservation
of endangered or threatened species and their habitat; and for the
management of wildlife and wildlands to obtain the maximum benefits
from these resources."
50 CFR 25.11(b)
Page 442 U. S. 353
(1978). [
Footnote 7]
Respondents alleged that the proposed budget curtailments would
significantly affect the quality of the human environment,
[
Footnote 8] and hence should
have been accompanied by an EIS prepared both by the Fish and
Wildlife Service and by OMB. [
Footnote 9]
The District Court agreed with respondents' contentions. Relying
on provisions of the then-applicable CEQ guidelines, [
Footnote 10]
Page 442 U. S. 354
and on the Department of the Interior's Manual, [
Footnote 11] the District Court held that
"appropriation requests are
proposals for legislation' within
the meaning of NEPA," and also that "annual proposals for financing
the Refuge System are major Federal actions which clearly have a
significant effect on the environment." Sierra Club v.
Morton, 395 F.
Supp. 1187, 1188, 1189 (1975). The District Court granted
respondents' motion for summary judgment, and provided declaratory
and injunctive relief. It stated that the Department of the
Interior and OMB were required "to prepare, consider, and
disseminate environmental impact statements on annual proposals for
financing the National Wildlife Refuge System." 12 App. to Pet. for
Cert. 61a.
The Court of Appeals for the District of Columbia Circuit
modified the holding of the District Court. The Court of Appeals
was apprehensive because "[a] rule requiring preparation of an EIS
on the annual budget request for virtually every ongoing program
would trivialize NEPA." [
Footnote 12] 189 U.S.App.D.C. 117, 125, 581 F.2d 895, 903
(1978). Therefore, the Court of Appeals concluded that § 102(2)(C)
required
Page 442 U. S. 355
the preparation of an EIS only when an appropriation request
accompanies "a
proposal' for taking new action which
significantly changes the status quo," or when "the
request for budget approval and appropriations is one that ushers
in a considered programmatic course following a programmatic
review." 189 U.S.App.D.C. at 125, 581 F.2d at 903. Section
102(2)(C) would thus have no application to "a routine request for
budget approval and appropriations for continuance and management
of an ongoing program." 189 U.S.App.D.C. at 125, 581 F.2d at 903.
The Court of Appeals held, however, that there was no need for
injunctive relief, because the Fish and Wildlife Service had
completed during the pendency of the appeal a "Programmatic EIS"
that adequately evaluated the environmental consequences for the
NWRS of various budgetary alternatives. [Footnote 13] Id. at 126, 581 F.2d at 904.
See United States Fish and Wildlife Service, Final
Environmental Statement: Operation of the National Wildlife Refuge
System (Nov.1976). [Footnote
14]
We granted certiorari, 439 U.S. 1065 (1979), and we now
reverse.
II
NEPA requires EIS's to be included in recommendations or reports
on both "proposals for legislation . . . significantly affecting
the quality of the human environment" and "proposals for . . .
major Federal actions significantly affecting the quality of the
human environment." 42 U.S.C. § 4332(2)(C).
See CEQ
regulations, 43 Fed.Reg. 56001 (1978) (to be codified at 40 CFR §
1506.8(a)). Petitioners argue, however, that the requirements of §
102(2)(C) have no application to the budget process. The contrary
holding of the
Page 442 U. S. 356
Court of Appeals rests on two alternative interpretations of §
102(2)(C). The first is that appropriation requests which are the
result of "an agency's painstaking review of an ongoing program,"
189 U.S.App.D.C. at 125, 581 F.2d at 903, are "proposals for
legislation" within the meaning of § 102(2)(C). The second is that
appropriation requests which are the reflection of "new" agency
initiatives constituting "major Federal actions" under NEPA, are
themselves "proposals for . . . major Federal actions" for purposes
of § 102(2)(C). We hold that neither interpretation is correct.
A
We note initially that NEPA makes no distinction between
"proposals for legislation" that are the result of "painstaking
review" and those that are merely "routine." When Congress has thus
spoken "in the plainest of words,"
TVA v. Hill,
437 U. S. 153,
437 U. S. 194
(1978), we will ordinarily decline to fracture the clear language
of a statute, even for the purpose of fashioning from the resulting
fragments a rule that "accords with
common sense and the public
weal.'" Id. at 437 U. S. 195.
Therefore, either all appropriation requests constitute "proposals
for legislation" or none does.
There is no direct evidence in the legislative history of NEPA
that enlightens whether Congress intended the phrase "proposals for
legislation" to include requests for appropriations. At the time of
the Court of Appeals' decision, however, CEQ guidelines provided
that § 102(2)(C) applied to "[r]ecommendations or favorable reports
relating to legislation including requests for appropriations." 40
CFR § 1500.5(a)(1) (1977). [
Footnote 15] At that time CEQ's guidelines were
advisory
Page 442 U. S. 357
in nature, and were for the purpose of assisting federal
agencies in complying with NEPA. § 1500.1(a).
In 1977, however, President Carter, in order to create a single
set of uniform, mandatory regulations, ordered CEQ, "after
consultation with affected agencies," to "[i]ssue regulations to
Federal agencies for the implementation of the procedural
provisions" of NEPA. Exec.Order No. 11991, 3 CFR 124 (1978). The
President ordered the heads of federal agencies to "comply with the
regulations issued by the Council. . . ."
Ibid. CEQ has
since issued these regulations, 43 Fed.Reg. 55978-56007 (1978),
[
Footnote 16] and they
reverse CEQ's prior interpretation of § 102(2)(C). The regulations
provide specifically that "
[l]egislation' includes a bill or
legislative proposal to Congress . . . but does not
include requests for appropriations." 43 Fed.Reg. 56004 (1978) (to
be codified at 40 CFR § 1508.17). (Emphasis supplied.) CEQ
explained this reversal by noting that, on the basis of
"traditional concepts relating to appropriations and the budget
cycle, considerations of timing and confidentiality, and other
factors, . . . the Council in its experience found that preparation
of EISs is ill-suited to the budget preparation process. [
Footnote 17]"
43 Fed.Reg. at 55989.
Page 442 U. S. 358
CEQ's interpretation of NEPA is entitled to substantial
deference.
See Warm Springs Dam Task Force v. Gribble,
417 U. S. 1301,
417 U. S.
1309-1310 (1974) (Douglas, J., in chambers). The Council
was created by NEPA, and charged in that statute with the
responsibility
"to review and appraise the various programs and activities of
the Federal Government in the light of the policy set forth in . .
. this Act . . . and to make recommendations to the President with
respect thereto."
83 Stat. 855, 42 U.S.C. § 4344(3).
It is true that, in the past, we have been somewhat less
inclined to defer to "administrative guidelines" when they have
"conflicted with earlier pronouncements of the agency."
General
Electric Co. v. Gilbert, 429 U. S. 125,
429 U. S. 143
(1976). But CEQ's reversal of interpretation occurred during the
detailed and comprehensive process, ordered by the President, of
transforming advisory guidelines into mandatory regulations
applicable to all federal agencies.
See American Trucking
Assns. v. Atchison, T. ,& S. F. R. Co., 387 U.
S. 397,
387 U. S. 416
(1967). A mandatory requirement that every federal agency submit
EIS's with its appropriation requests raises wholly different and
more serious issues "of fair and prudent administration,"
ibid., than does nonbinding advice. This is particularly
true in light of the Court of Appeals' correct observation that
"[a] rule requiring preparation of an EIS on the annual budget
request for virtually every ongoing program would trivialize NEPA."
189 U.S.App.D.C. at 125, 581 F.2d at 903. The Court of Appeals
accurately noted that such an interpretation of NEPA would be a
"
reductio ad absurdum. . . . It would be absurd to
require an EIS on every decision on the management of federal land,
such as fluctuation in the number of forest fire spotters."
Id. at 124, 581 F.2d at 902. Even respondents do not
now contend that NEPA should be construed so
Page 442 U. S. 359
that all appropriation requests constitute "proposals for
legislation." Brief for Respondents 13 n. 6, 561.
CEQ's interpretation of the phrase "proposals for legislation"
is consistent with the traditional distinction which Congress has
drawn between "legislation" and "appropriation." [
Footnote 18] The rules of both Houses
"prohibit
legislation'
Page 442 U. S.
360
from being added to an appropriation bill." L. Fisher,
Budget Concepts and Terminology: The Appropriations Phase, in 1
Studies in Taxation, Public Finance and Related Subjects -- A
Compendium 437 (Fund for Public Policy Research 1977). See
Standing Rules of the United States Senate, Rule 16(4) ("No
amendment which proposes general legislation shall be received to
any general appropriation bill. . . ."); Rules of the House of
Representatives, 96th Cong., 1st Sess.,
Page 442 U. S. 361
Rule XXI(2) (1979); [
Footnote
19] 7 C. Cannon, Precedents of the House of Representatives §§
1172, 1410, 1443, 1445, 1448, 1459, 1463, 1470, 1472 (1936). The
distinction is maintained
"to assure that program and financial matters are considered
independently of one another. This division of labor is intended to
enable the Appropriations Committees to concentrate on financial
issues and to prevent them from trespassing on substantive
legislation."
House Budget Committee, Congressional Control of Expenditures 19
(Comm.Print 1977). House and Senate rules thus require a "previous
choice of policy . . . before any item of appropriations might be
included in a general appropriations bill."
United States ex
rel. Chapman v. FPC, 345 U. S. 153,
345 U. S. 164
n. 5 (1953). Since appropriations therefore "have the limited and
specific purpose of providing funds for authorized programs,"
TVA v. Hill, 437 U.S. at
437 U. S. 190,
and since the "action-forcing" provisions of NEPA are directed
precisely at the processes of "planning and . . . decisionmaking,"
42 U.S.C. § 4332(2)(A), which are associated with underlying
legislation, we conclude that the distinction made by CEQ's
regulations is correct, and that "proposals for legislation" do not
include appropriation requests.
B
The Court of Appeals' alternative interpretation of NEPA is that
appropriation requests constitute "proposals for . . . major
Federal actions." [
Footnote
20] But this interpretation distorts the
Page 442 U. S. 362
language of the Act, since appropriation requests do not
"propose" federal actions at all; they instead fund actions already
proposed. Section 102(2)(C) is thus best interpreted as applying to
those recommendations or reports that actually propose programmatic
actions, rather than to those which merely suggest how such actions
may be funded. Any other result would create unnecessary
redundancy. For example, if the mere funding of otherwise unaltered
agency programs were construed to constitute major federal actions
significantly affecting the quality of the human environment, the
resulting EIS's would merely recapitulate the EIS's that should
have accompanied the initial proposals of the programs. And if an
agency program were to be expanded or revised in a manner that
constituted major federal action
Page 442 U. S. 363
significantly affecting the quality of the human environment,
[
Footnote 21] an EIS would
have been required to accompany the underlying programmatic
decision. [
Footnote 22] An
additional EIS at the appropriation stage would add nothing.
Even if changes in agency programs occur because of budgetary
decisions, an EIS at the appropriation stage would only be
repetitive. For example, respondents allege in their complaint that
OMB required the Fish and Wildlife Service to decrease its
appropriation request for the NWRS, and that this decrease would
alter the operation of the NWRS in a manner that would
significantly affect the quality of the human environment.
See n 9,
supra. But since the Fish and Wildlife Service could
respond to OMB's budgetary curtailments in a variety of ways,
see United States Fish and Wildlife Service, Final
Environmental Statement: Operation of the National Wildlife Refuge
System (Nov. 1976), it is impossible to predict whether or how any
particular budget cut will, in fact, significantly affect the
quality of the human environment. OMB's determination to cut the
Service's budget is not a programmatic proposal, and therefore
requiring OMB to include an EIS in its budgetary cuts would be
premature.
See Aberdeen & Rockfish R. Co. v. SCRAP,
422 U. S. 289,
422 U. S. 320
(1975). And since an EIS must be prepared if any of the revisions
the Fish and Wildlife Service proposes in its ongoing programs in
response to OMB's budget cuts would significantly affect the
quality of the human environment, requiring the Fish and Wildlife
Service to include all EIS with its revised appropriation request
would merely be redundant.
Page 442 U. S. 364
Moreover, this redundancy would have the deleterious effect of
circumventing and eliminating the careful distinction Congress has
maintained between appropriation and legislation. It would flood
House and Senate Appropriations Committees with EIS's focused on
the policy issues raised by underlying authorization legislation,
[
Footnote 23] thereby
dismantling the "division of labor" so deliberately created by
congressional rules.
C
We conclude therefore, for the reasons given above, that
appropriation requests constitute neither "proposals for
legislation"
Page 442 U. S. 365
nor "proposals for . . major Federal actions," and that
therefore the procedural requirements of § 102(2)(C) have no
application to such requests. [
Footnote 24] The judgment of the Court of Appeals is
reversed.
So ordered.
[
Footnote 1]
Section 101(b) articulates these purposes with even greater
particularity:
"In order to carry out the policy set forth in this Act, it is
the continuing responsibility of the Federal Government to use all
practicable means, consistent with other essential considerations
of national policy, to improve and coordinate Federal plans,
functions, programs, and resources to the end that the Nation may
-- "
"(1) fulfill the responsibilities of each generation as trustee
of the environment for succeeding generations;"
"(2) assure for all Americans safe, healthful, productive, and
esthetically and culturally pleasing surroundings;"
"(3) attain the widest range of beneficial uses of the
environment without degradation, risk to health or safety, or other
undesirable and unintended consequences;"
"(4) preserve important historic, cultural, and natural aspects
of our national heritage, and maintain, wherever possible, an
environment which supports diversity and variety of individual
choice;"
"(5) achieve a balance between population and resource use which
will permit high standards of living and a wide sharing of life's
amenities; and"
"(6) enhance the quality of renewable resources and approach the
maximum attainable recycling of depletable resources."
83 Stat. 852, 42 U.S.C. § 4331(b).
[
Footnote 2]
Of course, an EIS need not he promulgated unless an agency's
planning ripens into a
"recommendation or report on proposals for legislation [or]
other major Federal actions significantly affecting the quality of
the human environment."
42 U.S.C. § 4332(2)(C).
See Kleppe v. Sierra Club,
427 U. S. 390
(1976). Moreover, although NEPA requires compliance "to the fullest
extent possible," we have held that the duty to prepare an EIS must
yield before "a clear and unavoidable conflict in statutory
authority."
Flint Ridge Development Co. v. Scenic Rivers
Assn., 426 U. S. 776,
426 U. S. 788
(1976).
[
Footnote 3]
CEQ regulations state that
"[t]he primary purpose of an environmental impact statement is
to serve as an action-forcing device to insure that the policies
and goals defined in [NEPA] are infused into the ongoing programs
and actions of the Federal Government. . . . An environmental
impact statement is more than a disclosure document. It shall be
used by Federal officials in conjunction with other relevant
material to plan actions and make decisions."
43 Fed.Reg. 55994 (1978) (to be codified at 40 CFR §
1502.1).
In Exec.Order No. 11991, President Carter required the CEQ to
issue regulations that included procedures "for the early
preparation of environmental impact statements." 3 CFR 124 (1978).
As a consequence, CEQ regulations provide:
"An agency shall commence preparation of an environmental impact
statement as close as possible to the time the agency is developing
or is presented with a proposal . . . so that preparation can be
completed in time for the final statement to be included in any
recommendation or report on the proposal. The statement shall be
prepared early enough so that it can serve practically as an
important contribution to the decisionmaking process and will not
be used to rationalize or justify decisions already made. . . . For
instance:"
"(a) For projects directly undertaken by Federal agencies the
environmental impact statement shall be prepared at the feasibility
analysis (go-no go) stage and may be supplemented at a later stage
if necessary. . . ."
43 Fed.Reg. 55995 (1978) (to be codified at 40 CFR §
1502.5).
[
Footnote 4]
Respondents are the Sierra Club, the National Parks and
Conservation Association, and the National Resources Defense
Council, Inc.
[
Footnote 5]
CEQ regulations define an "environmental impact statement" to
mean "a detailed written statement as required by Sec. 102(2)(C) of
[NEPA]." 43 Fed.Reg. 56004 (1978) (to be codified at 40 CFR §
1508.11).
[
Footnote 6]
See United States Fish and Wildlife Service, Final
Environmental Statement: Operation of the National Wildlife Refuge
System I-8 to I-9 (Nov. 1976).
[
Footnote 7]
The System is administered according to the provisions of
several statutes. The most significant of these are the Fish and
Wildlife Coordination Act of 1934, 48 Stat. 401, as amended, 72
Stat. 563, 16 U.S.C. § 661
et seq.; the Fish and Wildlife
Act of 1956, 70 Stat. 1119, 16 U. S.C. § 742a
et seq.; the
Migratory Bird Conservation Act, ch. 257, 45 Stat. 1222, as
amended, 16 U.S.C. § 715
et seq.; and the Endangered
Species Act of 1973, 87 Stat. 884, 16 U.S.C. § 1531
et
seq.
[
Footnote 8]
Respondents brought suit on behalf of themselves, claiming that
they had organizational interests in monitoring and publicizing the
management of the NWRS, and on behalf of their members, alleging
that the latter used the NWRS for recreational and other purposes,
and would be affected by the proposed budget curtailments.
[
Footnote 9]
Respondents alleged that OMB had
"significantly reduced the Interior Department's request for
appropriations for the operation of the National Wildlife Refuge
System during fiscal year 1974 and during other years without
preparing or considering the environmental impact statement
required by NEPA."
Complaint � 25.
Respondents also contended that § 102(2)(b) of NEPA required OMB
to develop procedures to assure consideration of environmental
factors in the budget process. Section 102(2)(B) requires all
federal agencies to
"identify and develop methods and procedures, in consultation
with the Council on Environmental Quality established by title II
of this Act, which will insure that presently unquantified
environmental amenities and values may be given appropriate
consideration in decisionmaking along with economic and technical
considerations."
83 Stat. 853, 42 U.S.C. § 4332(2)(b).
[
Footnote 10]
At that time, CEQ was authorized by Exec.Order No. 11514, §
3(h), to issue nonbinding
"guidelines to Federal agencies for the preparation of detailed
statements on proposals for legislation and other Federal actions
affecting the environment."
3 CFR 904 (1966-1970 Comp.). These guidelines stated that the
"major Federal actions" to which § 102(2)(C) applied included
"[r]ecommendations or favorable reports relating to legislation
including requests for appropriations." 40 CFR § 1500.5(a)(1)
(1974).
See § 1500.3.
[
Footnote 11]
At that time, the Department of the Interior's Manual, following
CEQ's proposed guidelines, provided:
"The following criteria are to be used in deciding whether a
proposed action requires the preparation of an environmental
statement:"
"A. Types of Federal actions to be considered include, but are
not limited to:"
"(1) Recommendations or favorable reports to the Congress
relating to legislation, including appropriations."
Department of the Interior Manual, § 516.5, 36 Fed.Reg. 19344
(1971).
[
Footnote 12]
Without additional discussion, the District Court also stated
that the Director of OMB was required
"to develop formal methods and procedures which will, with
respect to [OMB]'s own administrative actions and proposals,
identify those agency actions requiring environmental statements to
be prepared, considered, and disseminated."
App. to Pet. for Cert. 62a.
See n 9,
supra.
[
Footnote 13]
Respondents do not now challenge this holding.
[
Footnote 14]
The Court of Appeals also affirmed what it took to be the
District Court's declaratory relief requiring OMB "to adopt
procedures and appropriate regulations to comply with the
obligations NEPA imposes on the budget process. . . ." 189
U.S.App.D.C. at 127, 581 F.2d at 905.
See n 12,
supra.
[
Footnote 15]
CEQ had taken this position from the first draft of its
guidelines. CEQ was required by President Nixon to issue guidelines
on March 5, 1970.
See Exec.Order No. 11514, 3 CFR 902
(1966-1967 Comp.). On April 30, 1970, CEQ promulgated interim
guidelines which provided that "major Federal actions" included
"recommendations or reports relating to legislation and
appropriations." Council on Environmental Quality, First Annual
Report: Environmental Quality 288 (1970). On April 23, 1971, the
guidelines were revised to state that "major Federal actions"
included "[r]ecommendations or favorable reports relating to
legislation including that for appropriations." 36 Fed.Reg. 7724
(1971). On August 1, 1973, the guidelines were once again revised,
this time to the form noted by the Court of Appeals. 38 Fed.Reg.
20551 (1973).
Relying on the CEQ guidelines, two prior decisions by Courts of
Appeals have both interpreted "proposals for legislation" to
include appropriation requests.
See Environmental Defense Fund
v. TVA, 468 F.2d 1164, 1181 (CA6 1972);
Scientists'
Institute for Public Information, Inc. v. Atomic Energy
Comm'n, 156 U.S.App.D.C. 395, 404, 481 F.2d 1079, 1088
(1973).
[
Footnote 16]
These regulations become effective July 30, 1979. 43 Fed.Reg.
55978 (1978).
[
Footnote 17]
The CEQ also noted that
"[n]othing in the Council's determination, however, relieves
agencies of responsibility to prepare statements when otherwise
required on the underlying program or other actions."
Id. at 55989.
[
Footnote 18]
The Congressional Budget Act of 1974 directs the Comptroller
General of the United States,
"in cooperation with the Secretary of the Treasury, the Director
of the Office of Management and Budget, and the Director of the
Congressional Budget Office, [to] develop, establish, maintain, and
publish standard terminology, definitions, classifications, and
codes for Federal fiscal, budgetary, and program-related data and
information."
88 Stat. 327, 31 U. S.C. § 1152(a)(1). Pursuant to this
statutory authority, the Comptroller General has published
definitions distinguishing "authorizing legislation" from
"appropriation."
Authorizing legislation is defined in the
following manner:
"Basic substantive legislation enacted by Congress which sets up
or continues the legal operation of a Federal program or agency
either indefinitely or for a specific period of time or sanctions a
particular type of obligation or expenditure within a program. Such
legislation is normally a prerequisite for subsequent
appropriations or other kinds of budget authority to be contained
in appropriations acts. It may limit the amount of budget authority
to be provided subsequently or may authorize the appropriation of
'such sums as may be necessary.'"
Comptroller General of the United States, Terms Used in the
Budgetary Process 4 (1977).
Appropriation, on the other hand, is defined as:
"An authorization by an act of the Congress that permits Federal
agencies to incur obligations and to make payments out of the
Treasury for specified purposes. An appropriation usually follows
enactment of authorizing legislation. . . . Appropriations do not
represent cash actually set aside in the Treasury for purposes
specified in the appropriation act; they represent limitations of
amounts which agencies may obligate during the time period
specified in the respective appropriations acts."
Id. at 3.
Congressional enactments employ this distinction between
appropriation and legislation. For example, the Budget and
Accounting Act requires the President to include in the proposed
budget he submits to Congress
"with respect to each proposal in the Budget for new or
additional
legislation which would create or expand any
function, activity, or authority, in addition to those functions,
activities, and authorities then existing or as then being
administered and operated, a tabulation showing -- "
"(A) the amount proposed in the Budget for
appropriation and for expenditure in the ensuing fiscal
year on account of such proposal; and"
"(B) the estimated
appropriation required on account of
such proposal in each of the four fiscal years, immediately
following that ensuing fiscal year, during which such proposal is
to be in effect. . . ."
As added, 84 Stat. 1169, 31 U.S.C. § 11(a)(12) (emphasis
supplied).
See also 18 U.S.C. § 1913; 22 U.S.C. §
2394(c).
The Executive Branch also recognizes the distinction between
appropriation and legislation. For example, OMB distinguishes its
function "[t]o supervise and control the administration of the
budget" from its task of assisting "the President by clearing and
coordinating departmental advice on proposed legislation."
Requiring Confirmation of Future Appointments of the Director and
Deputy Director of the Office of Management and Budget, H.R.Rep.
No. 93-697, p. 18 (1973).
See Neustadt, Presidency and
Legislation: The Growth of Central Clearance, 48 Am.Pol.Sci.Rev.
641 (1954). OMB Circular No. A-19 (1972) establishes OMB's
procedures for "legislative coordination and clearance," whereas
OMB Circular No. A-11 (1978) sets out OMB's guidelines for the
"Preparation and Submission of Budget Estimates." OMB Circular No.
A-19, § 6(a), requires each federal agency to
"prepare and submit to OMB annually its proposed legislative
program for the next session of Congress. These programs must be
submitted at the same time as the initial submissions of an
agency's annual budget request as required by OMB Circular
A-11."
OMB Circular A-11, § 13.2, on the other hand, provides:
"If, in addition to the regular appropriation requests, it
appears probable that proposals for
new legislation may
require a further budget request or result in a change in revenues
or outlays, a tentative forecast of the supplemental estimate will
be set forth separately. . . . Such proposed supplementals must be
consistent with items appearing in the agency's legislative program
as required by OMB Circular No. A-19. . . ."
[
Footnote 19]
L. Deschler, Procedure in the U.S. House of Representatives §
26-1.2 (1977) states that "[l]anguage in an appropriation bill
changing existing law is legislation and not in order." Conversely,
"[r]estrictions against the inclusion of appropriations in
legislative bills are provided for by House rule. . . ."
Id. § 25-3.1.
[
Footnote 20]
CEQ regulations define "major Federal action" in the following
manner:
"'Major Federal action' includes actions with effects that may
be major and which are potentially subject to Federal control and
responsibility. Major reinforces but does not have a meaning
independent of significantly. . . . Actions include the
circumstance where the responsible officials fail to act and that
failure to act is reviewable by courts or administrative tribunals
under the Administrative Procedure Act or other applicable law as
agency Action."
"(a) Actions include new and continuing activities, including
projects and programs entirely or partly financed, assisted,
conducted, regulated, or approved by federal agencies; new or
revised agency rules, regulations, plans, policies, or procedures;
and legislative proposals. . . . "
"(b) Federal actions tend to fall within one of the following
categories:"
"(1) Adoption of official policy, such as rules, regulations,
and interpretations adopted pursuant to the Administrative
Procedure Act, 5 U.S.C. 551
et seq.; treaties and
international conventions or agreements; formal documents
establishing an agency's policies which will result in or
substantially alter agency programs."
"(2) Adoption of formal plans, such as official documents
prepared or approved by federal agencies which guide or prescribe
alternative uses of federal resources, upon which future agency
actions will be based."
"(3) Adoption of programs, such as a group of concerted actions
to implement a specified policy or plan; systematic and connected
agency decisions allocating agency resources to implement a
specific statutory program or executive directive."
"(4) Approval of specific projects, such as construction or
management activities located in a defined geographic area.
Projects include actions approved by permit or other regulatory
decision as well as federal and federally assisted activities."
43 Fed.Reg. 56004-56005 (1978) (to be codified at 40 CFR §
1508.18).
[
Footnote 21]
"[M]ajor Federal actions" include the "expansion or revision of
ongoing programs." S.Rep. No. 91-296, p. 20 (1969).
[
Footnote 22]
For example, if an agency were to seek an appropriation to
initiate a major new program that would significantly affect the
quality of the human environment, or if it were to decline to ask
for funding so as to terminate a program with a similar effect, the
agency would have been required to include EIS's in the
recommendations or reports on the proposed underlying programmatic
decisions.
[
Footnote 23]
The Court of Appeals held that EIS's need be included in
appropriation requests for "major Federal actions" only if major
changes that would significantly affect the quality of the human
environment are proposed in the underlying programs for which
funding is sought.
See 189 U.S.App.D.C. at 125, 581 F.2d
at 903. But an appropriation request applies not only to major
changes in a federal program, but also to the entire program it is
designed to fund. Without appropriations, the underlying program
would cease to exist. Therefore, if the existence
vel non
of that program is a major federal action significantly affecting
the quality of the human environment, the Court of Appeals'
alternative interpretation of NEPA would require an EIS to be
included in the concomitant appropriation request.
[
Footnote 24]
It is important to note that CEQ regulations provide that the
adjective "major" in the phrase "major Federal actions" "reinforces
but does not have a meaning independent of [the adverb]
significantly" in the phrase "significantly affecting the quality
of the human environment." 43 Fed.Reg. 56004 (1978) (to be codified
at 40 CFR § 1508.18).
See n 20,
supra. As a consequence, the Court of
Appeals' holding that certain appropriation requests are "proposals
for . . . major Federal actions" is operationally identical to its
holding that certain appropriation requests constitute "proposals
for legislation." Both holdings would require EIS's to accompany
funding requests for every federal program that significantly
affects the quality of the human environment. Thus, not only do
both holdings run the same dangers of "trivializing" NEPA, but also
the same "traditional concepts relating to appropriations and the
budget cycle, considerations of timing and confidentiality," 43
Fed.Reg. 55989 (1978), which led CEQ to distinguish
"appropriations" from "legislation," would require appropriations
to be distinguished from "proposals for . . . major Federal
actions."