The Supreme Court has been asked to decide whether a 1969 law requires federal agencies to generate a huge increase in the volume of environmental impact statements.
The justices have before them a petition to review a decision concerning federal programs that would significantly change the environmental status quo or reflect a "new look" at a program. In such situations, the decision was that the National Environmental Policy Act (NEPA) requires impact statements to be filed along with budget requests made by agencies to the Office of Management and Budget, and by OMB to the president.
In behalf of Interior Secretary Cecil D. Andrus and OMB Director James T. McIntyre Jr., Acting Solicitor General Lawrence G. Wallace protested that the decision "established an amorphous right of public intervention in the preliminary stages of executive policy formulation." He said that "additional litigation seeking to define and enlarge this right can be expected."
The U.S. Court of Appeals here handed down the decision last May in a case brought by the Sierra Club and other environmental organizations. Many of their 200,000 members used the National Wildlife Refuge system, a network of more than 350 wildife refuge areas occupying more than 30 million acres.
Because the users would be adversely affected by Interior Department and OMB proposals affecting the system, the club said in asking the Supreme Court to preserve the decision, the two agencies should have prepared environmental impact statements, but did not.
Petitioning the high court to review the decision, the acting solicitor general wrote that the ruling "marks the first significant judicial intervention in the processes of the executive branch that culminates in the president's annual submission of his budget to Congress."
"The decision is exceptional in its willingness to infer, in the face of substantial contrary evidence, a congressional intent to interpose procedural obstacles to the free communication of information, recommendations, and policy choices concerning budget decisions for which the president is responsible.
"Given the time constraints, the need for political flexibility, the tradition of confidentiality, and the other conditions that characterize the budget-making process, the decision casts doubt on the continued ability of the executive to conduct the process effectively."
For the Sierra Club, however, Bruce J. Terris said that Interior and OMB "exaggerate the novelty and importance of the decision."
Rather than being "the first significant judicial intervention" in the White House submission of budgets to Capitol Hill, the ruling "is merely another in a line of decisions holding that NEPA requires the preparation of environmental impact statements on agency requests for appropriations which signficantly affect the human environment," Terris contended.
In addition, he wrote, the decision "will not result in any appreciable, let alone 'significant' judicial intervention in the budget process," and doesn't judicial intervention in the budget process," and doesn't impose any substantial burden. "It primarily affects the time at which environmental impact statements on certain proposed actions are to be prepared," he said.
A key issue in dispute is whether budget requests to and by OMB are, under the environmental policy act, "proposals" for legislation.
The appellate court held that they are, and Terris argued that its holding is "fully consistent" with NEPA's language and legislative history, and with Supreme Court interpretations of the law.
But Wallance contended that such budget requests are not "proposals," that they constitute instead the "germination process" of the president's preparation of a budget for submission to Congress, and that this view coincides both with Congress' own understanding of the budget-making process and with past Supreme Court interpretations of NEPA.