Supplements to Environmental Impact Statements: Implementation of the Standards Set by the Council on Environmental Quality

Environmental impact statements (EISs) are prepared before any major federal project is undertaken, as required by the National Environmental Policy Act (NEPA). An original EIS may become obsolete if a Project's operation later changes in any significant way, or if previously unsuspected environmental impacts are later discovered. When either of these two events occurs, compliance with NEPA demands that a supplemental EIS be prepared to focus on the changes. The decision whether a supplement is required in any particular situation is guided by standards set by the Council on Environmental Quality (CEQ). In addition, some federal agencies have promulgated their own internal regulations to guide these supplementation decisions. A substantial controversy presently exists as to whether the Maine Yankee Atomic Power Company's plan to increase spent fuel storage at its Wiscasset, Maine nuclear reactor site is the type of change in a project for which a supplemental EIS is required. The State of Maine, as an intervenor in the case, is arguing before the Atomic Safety and Licensing Board that the potential increase in spent fuel storage is exactly the kind of variation from an original plan that a supplemental EIS is designed to bring to the public's attention. In the context of three recent judicial decisions applying agency standards for supplemental EISs, this Comment examines ways in which a uniform application of the CEQ's now-binding standard will affect the decisionmaker's role in all cases in which review of an agency's supplementation decision becomes necessary, and points out ways in which individual agency requirements may be ineffective to implement NEPA's demands. The Comment then reviews Maine Yankee's proposed changes in its spent fuel storage operation and predicts that some of those changes will trigger the need for a supplemental EIS in light of the CEQ Guidelines.