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July 8, 2009 - ASCE Comments and Suggestions - Economic and Environmental Principals and Guidelines

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The Council on Environmental Quality
Notice and Request for Suggestions
74 Fed. Reg. 31,415 (Jul 1, 2009)
Economic and Environmental Principles and Guidelines for Water
and Related Land Resources Implementation Studies; Initiation of
Revision and Request for Suggested Changes
COMMENTS OF THE AMERICAN SOCIETY OF CIVIL ENGINEERS∗

 July 8, 2009 

I. INTRODUCTION AND SUMMARY

The American Society of Civil Engineers (ASCE) responds to the notice of the Council on Environmental Quality (CEQ) seeking public comment on plans by the Obama Administration to expand the scope of the “Principles and Guidelines” required by the Water Resources Development Act (WRDA) of 2007. 74 Fed. Reg. 31415 (Jul. 1, 2009).1 The notice states that the administration “is considering developing uniform planning standards for the development of water resources that would apply governmentwide, including agencies other than the traditional water resources development agencies covered under the current Principles and Guidelines,” id.

In addition, the “request for suggestions” explains: “[T]he Council on Environmental Quality … will facilitate an interagency drafting of revised Principles and Guidelines for planning water resources projects that could be applied governmentwide.” Id. (emphasis added).

ASCE strongly favors revisions to the outdated Principles and Guidelines to better reconcile current economic theory and contemporary environmental policy.2 But the CEQ overreaches. The Council lacks the statutory authority to issue regulations governing water resources projects generally, to order an interagency drafting effort that binds the U.S. Army Corps of Engineers, or to require the Principles and Guidelines to stretch beyond those water resources projects carried out by the Corps.

Accordingly, we advise the Council to withdraw the July 1 proposal. The CEQ should allow the P&G revision process mandated by WRDA and begun by the Corps of Engineers in 2008 to proceed in the manner required by Congress.

II. NEPA AND THE CEQ

The National Environmental Policy Act (NEPA), 83 Stat. 852, created the Council on Environmental Quality (CEQ) as an advisory body within the Executive Office of the President. The Act, which established technical requirements for federal agencies to evaluate the effect of development on the environment, limited the role of the CEQ to performing eight specific, non-regulatory duties for the president.3

NEPA “imposes only procedural requirements on federal agencies[,] with a particular focus on requiring agencies to undertake analyses of the environmental impact of their proposals and actions.” Department of Transp. v. Public Citizen, 541 U.S. 752, 756-757 (U.S. 2004). The National Environmental Policy Act's mandate “is essentially procedural,” City of Alexandria, Va. v. Slate, 198 F.3d 862, 866 (D.C. Cir. 1999) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 558 (U.S. 1978). These procedural guidelines govern the conduct of environmental impact statements by other government agencies. “NEPA authorized the Council on Environmental Quality to promulgate guidelines in the form of regulations.” O'Reilly v. U.S. Army Corps of Engineers, 477 F.3d 225, 228 (5th Cir. 2007).

The Corps of Engineers (with certain minor exceptions) already is required to comply with all NEPA requirements for an environmental impact statement in the construction of its major projects. 33 C.F.R. § 230.6. The Corps may initiate, or participate in, the NEPA process with other federal agencies. U.S. Army Corps of Engineers, ER 1105-2-100, Planning Guidance Notebook 2-14 (Apr. 22, 2000) (copy on file with ASCE).

III. THE WATER RESOURCES DEVELOPMENT ACT OF 2007

Congress enacted the Water Resources Development Act (WRDA), 121 Stat. 1041 (codified at 42 U.S.C. 1962-3), on November 8, 2007, over President Bush’s veto. Section 2031 of the Act, 121 Stat. 1082, sets out a detailed process by which the Secretary of the Army is to revise the Principles and Guidelines of 1983 in a manner that “reflect[s] national priorities, encourage[s] economic development, and protect[s] the environment.” The section requires the Secretary to issue final revisions to the P&G by November 8, 2009.

Subsection (a) in section 2031 says that “[i]t is the policy of the United States that all water resources projects should reflect national priorities, encourage economic development, and protect the environment.” 42 U.S.C. 1962-3(a).

Subparagraph (4) of subsection (b) requires the Secretary to “consult with” other federal agencies, including the Council, in drafting the revised P&G. In subparagraph (6), Congress specifically limited the application of the amended version to Corps of Engineers projects. Subparagraph (6) states: “Subject to the requirements of this subsection, the principles and guidelines[,] as revised under this subsection[,] shall apply to water resources projects carried out by the Secretary instead of the principles and guidelines for such projects in effect on [November 7, 2007].” Id. 1962-3(b)(6) (emphasis added). The commandment is almost immediately repeated in subparagraph (7): “After the date of issuance of the revisions to the [P]rinciples and [G]uidelines, the revisions shall apply to all water resources projects carried out by the Secretary,” id. (b)(7) (emphasis added).4

In other words, the revised P&G would not apply to any water resources projects carried out by any federal agency other than the Corps of Engineers. By the clear objective of Congress, the revisions ordered by section 2031 would not even apply to the TVA, the Bureau of Reclamation, and the NRCS—all of which were included in the coverage of the original Guidelines—unless their projects were directly accomplished by the Corps.5

IV. COMMENTS OF ASCE

A. The Revised Principles and Guidelines Do Not Apply to Any Agency Except the U.S. Army Corps of Engineers.

Neither the Secretary nor the Council may require the P&G to extend to projects undertaken by “agencies other than the traditional water resources development agencies” governed by the present Guidelines. The bare language of section 2031 of WRDA limits the application of the revised Principles and Guidelines to water resources projects carried out by the U.S. Army Corps of Engineers. The phrase “water resources projects carried out by the Secretary” in subparagraphs (6) and (7) is a restrictive term, and the CEQ may not require (or “suggest” to) the Secretary that the P&G be amended or extended to make the new Guidelines valid for every water resources project carried out by the government.

Agencies are frequently required to interpret congressional intent in carrying out national policy, and they must give unqualified regard to that intent or risk reversal by a reviewing court. “First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter.” Chevron v. Natural Resources Defense Council, 467 U.S. 837, 842-843 (U.S.1984). “If a statute is ambiguous, and if the implementing agency's construction is reasonable, Chevron requires a federal court to accept the agency's construction of the statute.” National Cable & Telecommunications Ass'n v. Brand X Internet Services, 545 U.S. 967, 980 (U.S. 2005). In this instance, congressional intent is readily apparent; there is absolutely no ambiguity in section 2031 concerning which agency is responsible for revising the Principles and Guidelines and to which projects those revisions pertain. The CEQ’s reading of section 2031 is unreasonable.

And although subsection (a) of section 2031 says that it is the desire of the federal government to ensure that all water resources projects mirror national priorities, encourage economic development, and protect the environment, this is not a commandment. A generalized statement of policy does not itself contain an explicit congressional mandate to apply the P&G to all water resources projects governmentwide, and it cannot override the directives in subparagraphs (6) and (7) of section 2031 that require the revised P&G to be applied solely to Corps of Engineers projects. Any such procedural change is reserved to Congress as chief policymaker.

B. The CEQ May Not Take Over the Rulemaking Process.

The CEQ is a presidential advisory body only. It can do no more than “develop and recommend to the [p]resident national policies to foster and promote the improvement of environmental quality.” In the July 1 notice, the Council oversteps its consultative role by assuming control of a rulemaking process that Congress handed to the Corps of Engineers. The CEQ has no power to make law, or to command other agencies to issue policies in conflict with a statute, and it certainly has no authorityunder NEPA, WRDA, or any other act of Congress to be in command of revisions to the Principles and Guidelines, which are procedural but not within the scope of CEQ’s NEPA authority.

The CEQ’s powers are limited by law. “[T]he regulations of the Council on Environmental Quality are tailored to the presentation of a detailed environmental impact statement … [they] are hortatory but do not have the force of law.” Continental Illinois Nat. Bank & Trust Co. of Chicago v. Kleindienst, 382 F.Supp. 107, 119 (D.C. Ill. 1973). Indeed, a 1977 Executive Order constrains the Council’s authority to promulgating only such regulations as are necessary to establish NEPA compliance procedures for federal agencies, City of Alexandria, 198 F. 2d at 866 n3.

Moreover, the CEQ cannot require the Secretary to engage in “an interagency drafting of revised Principles and Guidelines.” WRDA reserves the drafting of the Guidelines to the Secretary, in consultation with CEQ and other agencies. Under the 2007 Act, which takes precedence over administration policies or CEQ regulations under NEPA, the Secretary retains the sole discretion to revise the P&G and to determine the form the consultations shall take; the CEQ notice stretches the notion of “consultation” well past its normal meaning and moves it into the realm of a mandate to permit other agencies to participate actively in the revision of the Guidelines. Congress did not envision such
an outcome in section 2031.

V. CONCLUSION

The CEQ does not have any statutory authority to order revisions to the Principles and Guidelines. Congress assigned that duty exclusively to the Corps of Engineers in WRDA. Nor did Congress delegate to the CEQ the authority to enlarge the scope of the Guidelines to encompass the conduct of every water resources project. Accordingly, the Council must withdraw the July 1 notice and allow the Corps of Engineers to complete the process of revision the P&G by November 8, 2009.

Respectfully submitted,

THE AMERICAN SOCIETY OF CIVIL ENGINEERS