OFFICIAL OPINION No. 13

OFFICIAL OPINION No. 13 Environmental impact statements-Department of En1:ir onmental Resources -National Environmen~al Policy A ct of 1969-0[fice of State Plann·ing and Development 1. The National Environmental Policy Act of 1969, Public Law 91-190, re- quires that any comments and views of the Department of Environmental Resources (which is the agency authorized to develop and enforce environ- mental standards for Pennsylvania) must accompany the Feden•J agency's detailed environmental statement and in addition advice and information useful in restoring, maintaining and enhancing the quality of the en- vironment must be made available to states. 2. The office of Planning and Research of the Department of Environmental Resources is responsible for overall environmental planning for the Com- monwealth Government. 3. Compliance with the Federal Act requires that any revisions of the en- vironmental impact statement made by the preparin:;; State agency must be reviev1ed and commented on u/ the Departr:>ent of Environmental Re- sources before the staterr.ent is re3ubmitted to the Federal agency. 4. It would be appropriate for the Governor to issue an Executive Directive to all agencies of the Commonwealth Government requiring all agencies preparing environmental impact statements to submit them to the State Clearing House of the Office of State Planning and Development for pro- cessing in accordance with the procedures outlined herein. Honorable Milton J. Shapp Governor Commonwealth of Pennsylvania Harrisburg, Pennsylvania Dear Governor Shapp: Harrisburg, Pa. January 30, 1973 We have received a request from Maurice K. Goddard, Secre- tary of Environmental Resources, concerning the procedures for review of environmental impact statements by the Common- wealth. Secretary Goddard has asked us to consult with you and advise you of the proper procedures which should be followed as a matter of law in order to assure that a total review of en- vironmental impact statements is made in a meaningful fashion. He is particularly concerned that his Department will have an opportunity to review an environmental impact statement pre- pared by another agency of the Commonwealth whenever there are changes made in the statement after his Department has made its initial review. Environmental impact statements are required by the Federal Government pursuant to the National Environmental Policy Act of 1969 Public Law 91-190 ( 42 U.S.C.A., §4331 et seq.). Section 102 of that Act provides that all agencies of the Federal Govern- ment shall include in every recommendation on "major federal actions significantly affecting the quality of the human environ- ment, 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, 30 OPINIONS OF THE ATTORNEY GENERAL "(iii) alternatives to the proposed action, " (iv) the relationship between local short-term uses of man's environment and the maintenance and enhance- ment of long-term productivity, .and . " ( v) any irreversible and i~etrieva~le commitments of resources which would be involved m the proposed ac- tion should it be implemented ... " ( 41 U.S.C.A. §4332) The Act further provides that the responsible official prepar- ing the detailed statement shall consult with and obtain the com- ments of any federal agency which has jurisdiction by law or special expertise and it also provides that copies of such state- ments shall be accompanied by the comments and views of the appropriate federal, state and local agencies which are author- ized to develop and enforce environmental standards. ( 42 U.S.C.A. §4332) The federal agencies are required by the Act to "make avail- able to states, counties, municipalities, institutions and indivi- duals advice and information useful in restoring, maintaining and enhancing the quality of the environment; .. " ( 42 U.S.C.A. §4332) The express language of the Act thus requires that any com- m ents and views of the Department of Environmental Resources (which is the agency authorized to develop and enforce environ- mental standards for Pennsylvania) must accompany the Federal agency's detailed environmental statement and, in addition ad- vice and information useful in restoring, maintaining and enhan- cing the quality of the environment must be made available to states. The Office of Planning and Research of the Department of En- vironmental Resources is responsible for overall environmental planning for the Commonwealth Government. In accordance with this duty the Office has developed procedures for the review of environmental impact statements which it has submitted to th~ State ClP.aring House of the Office of State Planning and De- velonm~nt for incorporation into certain programs of that Office calling for environmental review. These procedures provide for copies of an applicant's draft de- tail statement to be submitted by the State agency responsible for its preparation (preparing State agency) to the State Clear- ing House within the Office of State Planning and Development for recording. From there the copies are sent to the Office of Planning and Research which distributes them for comment throughout the Department of Environmental Resources and to other State agencies affected by the proposed Federal action. All comments by the bureaus of the Department of Environmental Resources are summarized into a Departmental position for the Secretary's signature by the Office of Planning and Research. Comments of other State agencies are either incorporated into the departmental position or appended as separate comments. OPINIONS OF THE ATTORNEY GENERAL 31 This statement of position is then sent to the State Clearing House where it is recorded and attached verbatim to any com- ments of the Office of State Planning and Development on the project relative to state social and economic policy. These state- ments are then forwarded to the preparing State agency. Thereafter the preparing State agency prepares a final en- vironmental impact statement which takes into consideration the comments of the Department of Environmental Resources. The final environmental impact statement is submitted to the Federal agency directly involved and copies thereof are sent to the State Clearing House which then distributes the final statement to the Office of Planning and Research for subsequent distribution to affected State agencies. Secretary Goddard's concern is with the eventuality of the Fed- eral agency returning the environmental impact statement to the preparing State agency for revision. He suggests that when- ever that happens his Department should have an opportunity to review and comment on any revisions in the environmental impact statement made by the preparing State agency. It is our opinion that compliance with the Federal Act requires that any revisions of the environmental impact statement made by the preparing State agency must be reviewed and commented on by the Department of Environmental .Resources before the Statement is resubmitted to the Federal agency. As mentioned above, Section 102 of the Act specifically pro- vides that copies of statements shall be accompanied by the com- ments and views of all the appropriate State agencies which are authorized to develop and enforce environmental standards. This means that the statements relative to Pennsylvania cannot contain additional materials or revisions with respect to which th~ Department of Environmental Resources has not had an op- portunity to submit its comments and views. The procedures set forth in the preceding paragraphs have no- where been delineated in an Executive Directive. Accordingly, we are of the opinion that it would be appropriate for you to is- sue an Executive Directive to all agencies of the Commonwealth, for publication in the Pennsylvania Bulletin, requiring all agen- cies preparing environmental impact statements to submit them to the State Clearing House of the Office of State Planning and Development in accordance with such precedures. The Executive Directive should set forth the procedures outlined above and it is suggested that it contain the following additional language: "In the event that the Federal Government ( 1) shall ask the preparing agency for supplemental or addition- al statements relating to the original Environmental Impact Statement, or ( 2) shall return the Environ- mental Impact Statement for additional work by the preparing agency then such preparing agency shall re- submit the Environmental Impact Statement and the 32 OPINIONS OF THE ATTORNEY GENERAL Federal comments thereon together with the new ~a­ terial prepared by the agency to the State Clearing House of the Office of State Planning and Develop- ment for distribution to the Department of Environ- mental Resources' Office of Planning and Research and allow that Department the opportuity to further review and comment upon same, prior to re-submission to the Federal Government." Please advise if this Office can be of further assistance in this matter. Very truly yours, W. W. ANDERSON Deputy Attorney General ISRAEL P ACKEL Attorney General