The Council of Environmental Quality and NEPA

The National Environmental Policy Act, passed by Congress at the end of 1969 and signed by President Richard Nixon on the first day of January 1970, was the culmination of a decade of intense congressional concern with environmental policy.^{Footnote 9} It was a decade that produced major legislation to improve the quality of air and water, to protect America’s wilderness areas, to beautify highways, and, as the centerpiece of the NEPA, a policy mandate to protect the environment and ensure that environmental concerns were to be taken into account in any federal government legislation and federal government programs. The centerpiece of the legislation was the establishment of what became one of the less prominent units within the EOP, the Council on Environmental Quality.

The council has had a turbulent existence during its fifty-year life and probably more turbulent than any other current EOP unit. There have been times when the CEQ has been influential within the policymaking process and has had some impact. It got off to an impressive start under President Nixon, although the Nixon administration’s enthusiasm for the council was not sustained for very long. It did well during the Carter years and was impressive under President Clinton in protecting environmental interests against the deregulatory push by the Republican-controlled Congress. But, there have also been long periods of time during the past fifty years when the council has not had the support of the president. It reached its nadir during the Reagan administration, when the council’s annual budget was reduced from $4 million to $700,000 in the space of four years and its staff cut from nearly sixty in the last year of the Carter presidency to just ten. According to a contemporary report in The New York Times, “its lack of resources and minimal influence . . . have reduced its effectiveness to the vanishing point.”^{Footnote 10} The highpoint of the CEQ’s budget and staffing allocation occurred during the Nixon and Carter administrations when its staffing level reached a total of seventy-two and its initial budget of $1.5 million rapidly grew to $3.1 million by the end of the Carter years.^{Footnote 11} The proposed CEQ appropriation for fiscal year 2019 is $3 million—the same dollar level it was twenty-eight years ago—and it has a staff complement of just twenty-four full-time equivalent positions.^{Footnote 12}

Budget cuts and staff reductions have not been the only institutional damage done to the CEQ during its fifty-year history. The standing of the CEQ has been undermined by all presidents since Jimmy Carter, who have simply ignored the statutory requirement to appoint a three-member council, preferring instead to make do with just a chairperson who exercised all the powers, functions, and duties of the council. Congress has concurred with and given its imprimatur to this practice in every appropriation bill since 1988.^{Footnote 13} During the Clinton presidency, Congress further undercut the role and effectiveness of the council by eliminating the statutory requirement that it publish an Annual Environmental Quality Report. The report had been a significant CEQ activity since 1970 and was a vital mechanism and an important focus for putting into effect the policy goals mandated in the National Environmental Policy Act.^{Footnote 14}

Today, the CEQ exists on the periphery of policymaking in the Executive Office of the President, and it is but a shadow of what was intended to be the institutional focus of NEPA. It has certainly failed to serve the purposes of some presidents. President Reagan signified that by his desire to abolish it and President Clinton tried and failed to reform it because, in its existing structure, it could not do as much as he wanted it to do.^{Footnote 15}

For such a landmark piece of legislation, the passage of the National Environmental Policy Act (NEPA) through Congress was remarkably swift and relatively noncontentious.^{Footnote 16} The Senate version of NEPA (S.1075) was introduced by Senator Henry Jackson (D-Wash.) on February 18, 1969, and referred to the Senate Committee on Interior and Insular Affairs. The committee held a one-day hearing on April 16, during which it considered S.1075 and two related bills and subsequently reported an amended S.1075 in June. The full Senate approved it on July 10 without debate, without any floor amendments, and without a roll-call vote. The House version (HR.6750) was introduced by Rep. John Dingell (D-Mich.) on July 1 as an amendment to the Fish and Wildlife Coordination Act. Hearings were held on HR.6750, along with ten other related bills, over seven days in May and June and the legislation went to the House floor on September 23, where it was passed overwhelmingly by 372–15 votes. The agreed version of NEPA that emerged from the conference committee on December 17 was approved by the Senate three days later after a brief debate and without a roll-call vote. Similarly, debate in the House on the conference report was brief and the House voted approval without a roll-call vote on December 22.

The CEQ was created under Title II of the National Environmental Policy Act and was clearly modeled on the Council of Economic Advisers (CEA) in the 1946 Employment Act.^{Footnote 17} Section 202 of NEPA established a three-person CEQ to be formally located in the Executive Office of the President, as was the three-person CEA. Similarly, the three CEQ members, one of whom was to be designated as the Chairman of the Council, were to be nominated by the president and appointed subject to the advice and consent of the Senate.

In its original form, the CEQ was a purely advisory body for the use of the president intended to provide the necessary institutional capacity to implement the policy goals of NEPA. The CEQ had no statutory powers to implement or regulate environmental policy, nor any line responsibilities. The council emerged in tact from the legislative process in 1969 and, when President Nixon signed the Act on January 1, 1970, it became part of the EOP, where it has remained ever since. The CEQ is now fifty years of age. Of the current formal divisions in the EOP, it is the fourth oldest, outranked in longevity by only the White House Office, the Council of Economic Advisers and the National Security Council.^{Footnote 18}

The statutory framework created by the National Environmental Policy Act is an obvious starting point for exploring the fate of the CEQ and addressing the issues raised earlier in this paper. That framework, however, is just skeletal. Underpinning the legislative language of NEPA is a rich debate in Congress about the desirability of placing a new policy unit in the EOP, a debate that has been almost completely overlooked in the literature on the presidency.^{Footnote 19}

The debate in Congress was not about the policy goals of NEPA, partly because there was a consensus on the desirability of a clean environment and the urgent need for improved management of it. No one argued that the federal government ought to stay out of environmental policy and, of course, no one made a case for more environmental pollution and degradation. The major purpose of the legislation was not an issue at all. The absence of any opposition to the policy goals of NEPA was also, in part, attributable to the form of the legislation when it was considered by the relevant committees in the Senate and the House. The broad national environmental policy goals that eventually became Title I of NEPA did not appear in the original bill introduced in the Senate on February 18, 1969, and then considered by the Senate Interior and Insular Affairs Committee when it held its one-day hearing on NEPA on April 16. Nor were the environmental impact statement provisions included in the original bill. They, too, were added after the hearing following a suggestion made by one key witness, Professor Lynton Caldwell, at that hearing.^{Footnote 20} The same was true of the House version of NEPA introduced by Rep. John Dingell as an amendment to a Bill about fish and wildlife coordination.

At the time of the committee hearings, which formed the major part of the congressional deliberations on NEPA, both versions of the legislation were mainly about the proposed CEQ and the environmental quality report that the president was mandated to transmit to Congress annually. So, given the initial absence of both the legislative language on policy goals and the provisions for the environmental impact statement process, a large part of the testimony and discussion in the hearings focused inevitably on the CEQ and the reporting requirement, with the result that the hearing provided a rich source of competing views about how presidential policy advice should be organized in The White House.

Organizing the Presidency: President Nixon’s Perspective

The congressional debate over the new council was also triggered and framed in large measure by the position of the Nixon administration. From the very start, President Nixon did not want the CEQ in his White House. A Nixon task force on environmental policy had reported to the president-elect the week of the inauguration urging that “improved environmental management be made a principal objective of the new administration.” It had recommended the appointment of a Special Assistant for Environmental Affairs in the White House Office who would also act as the executive secretary of a new interdepartmental President’s Council on the Environment.^{Footnote 21} President Nixon never showed much interest in the special-assistant position, but he did commit to the interdepartmental environmental council and quickly established an Environmental Quality Council at cabinet-level by Executive Order, which he issued at the end of May 1969.^{Footnote 22} Its membership consisted of the vice president, the secretaries of agriculture, commerce, health, education, and welfare, housing and urban development, and interior, other departmental heads as the president may from time to time direct, plus a number of observers from relevant EOP agencies. Rather than appoint a Special Assistant for Environmental Affairs as Executive Secretary, as the task force had recommended, Nixon gave the job to the Science Adviser to the President, a position then held by Dr. Lee DuBridge. The council’s major functions were to advise the president on matters relating to environmental quality and to facilitate coordination of environmental policy among federal government departments and agencies. According to Richard Liroff, Senator Jackson, who was strongly opposed to the Nixon initiative, managed to persuade the president not to issue the Executive Order before his committee had held its hearings on S.1075, ^{Footnote 23} but the Nixon cabinet council was the subject of discussion at those hearings and turned out to be a major point of contention between the president and Congress. Nixon’s objections and opposition to the CEQ proposed by Senator Jackson were registered in every departmental response to S.1075 and HR.6750 and in the testimony of every administration witness called before the committees.

Three models of presidential policy advice were before Congress during its deliberations over NEPA. The Nixon cabinet-council was a small body of relevant departmental secretaries and existing presidential staff to provide a focal point within the administration for environmental policy advice and coordination. It necessitated no new presidential advisory unit in the EOP and not even a new staff unit because the staffing was to come from the existing Office of Science and Technology. It is worth emphasizing that this body was to operate at Cabinet level because, during the legislative passage of NEPA, the status of Nixon’s cabinet-council was often denigrated by members of Congress who tended to refer to it as simply an “inter-agency committee.” The Nixon approach to enhancing environmental policy advice in his White House was also important because his cabinet-level Environmental Quality Council was the forerunner of the cabinet-council system that the president established in 1973 across the whole range of the administration’s policy responsibilities.

The model advocated by Senator Jackson and Representative Dingell was a new high-level policy advisory body consisting of three environmental policy experts and based upon the well-established and highly successful precedent of the Council of Economic Advisers. In essence, it was meant to focus primarily on providing policy advice to the president, but it was also given a brief to oversee environmental policy across the departments and agencies.

A third option, advocated by Senator Muskie, was the establishment of an environmental policy staff in the form of an Office of Environmental Quality to be located in the EOP. This proposal got little consideration in the House or Senate because it was part of a larger conflict between Jackson and Muskie over NEPA and eventually got sorted out as part of a compromise between the two, but it did generate a personal reaction by President Nixon. In a signing statement when he approved the National Environmental Policy Act, the president made reference to the Muskie Bill, which had not then completed the legislative process. He said, “I know that the Congress has before it a proposal to establish yet another staff organization to deal with environmental problems in the Executive Office of the President. I believe this would be a mistake. No matter how pressing the problem, to over-organize, to over-staff, or to compound the levels of review and advice seldom brings earlier or better results.”^{Footnote 24}

Ironically, although the three models competed as solutions for strengthening federal government management of environmental policy, all three were, eventually, formally established. President Nixon’s Environmental Quality Council was created through an Executive Order, Senator Henry Jackson’s CEQ was established as part of NEPA, and Senator Muskie’s Office of Environmental Quality was the product of his 1970 Environmental Quality Act. By April 1970, the Nixon White House, formally at least, contained all three. However, the confusing structure did not last for long. The president’s cabinet-council had a short shelf-life and was terminated in July 1970 with its functions, which were very similar to those Senator Jackson gave his CEQ, transferred to what was then the Domestic Council. Senator Muskie’s environmental policy staff unit existed in form only and was never activated by President Nixon. Only the Jackson model survived the first year of the Nixon presidency.

While the Nixon administration supported the objectives of the various environmental policy bills being considered in the House and Senate, it strongly opposed the idea of a statutorily established CEQ on the grounds that such a body was unnecessary in light of the president’s own initiative in setting up a cabinet-council on environmental policy. Administration officials testifying before Senator Jackson’s Interior and Insular Affairs Committee and Representative Dingell’s Merchant Marine and Fisheries subcommittee argued that not only was CEQ unnecessary, but that President Nixon’s model would be a more effective and more flexible body than the one Congress was proposing.

The great merit of the Nixon cabinet-council model, according to the president’s science adviser, Dr. Lee DuBridge, was that members of the council, by virtue of being departmental secretaries and members of the cabinet, would have the authority to implement its decisions. The emphasis here was on implementation and action so the status of the membership of the Nixon council was paramount. As Dr. DuBridge told the Senate Interior Committee, the model would work very effectively “because tasks can be assigned then and there in the meeting to the proper cabinet officer or on a group or committee of Cabinet officers and the things decided upon can be implemented instantly by presidential directive on the spot.”^{Footnote 25} Later on in his testimony, in response to a question from Senator Gaylord Nelson, Dr. DuBridge reiterated the point. “The intention of this Council is to create an action agency whereby those who are responsible for action in fields affecting the environment can get together, can be instructed by the president to carry out the actions.”^{Footnote 26}

There was at least one supporter of this argument amongst the members of the Senate Committee. The ranking Republican, Senator Gordon Allott, told his colleagues that he was “concerned about all of the studies that can come out of a council; a commission, or a committee without producing actual results in the end. The most appealing thing to me about the Administration’s approach, is that you develop the staff under the people who can actually implement and initiate policy under the direction of the President”^{Footnote 27}

The various departmental and agency submissions to the two congressional committees also emphasized the virtue of flexibility in the Nixon model. The fear was that a statutorily established unit in the EOP would be difficult to change as circumstances changed. As the Bureau of the Budget said in its submission, the establishment of a new environmental policy unit “should be undertaken by executive action rather than by legislation in order to assure flexibility necessary in exploratory or pilot efforts and in meeting changing needs”^{Footnote 28} Similarly, the view of the Department of Transportation was that, although a coordinating mechanism in the EOP was needed, “the argument for maintaining organizational flexibility is a compelling one and [we] would recommend and administrative, rather than a statutory approach at this time.”^{Footnote 29}

The prospect of a statutorily established environmental policy unit in the White House that could only be modified or abolished with congressional approval via the legislative process clearly disturbed President Nixon. In addition to the public case made by the Administration for the Nixon cabinet-council initiative and against the congressional variant, there were political reasons that weren’t made public at the time. John C. Whitaker, a deputy assistant to the president for environmental policy, recalls that “Nixon did not particularly like the idea of institutionalizing into the law a permanent council whose advisers, over the long run, could be counted on to be pushed by their natural constituency always to advocate an environmental position and probably an extreme one.”^{Footnote 30} The assumption here was that the form of advisory mechanism would dictate the nature of the advice given to the president.

Whitaker also highlighted another White House objection to the congressional CEQ. “If there were a council of advisers for the environment,” he asks, “why not a council for transportation, civil rights, Indians, blacks, welfare planning—indeed why not for any issue that required coordination between departments?” He went on to say that: “It would be better, in Nixon’s view, to recast the departments around broad functions to reduce the coordination needed and thereby reduce the size of the White House staff.”^{Footnote 31} That is precisely what President Nixon did when he announced in March 1971 his proposal to reorganize the executive branch of government around four new super-departments, a scheme which Congress did not enact and which eventually led to Nixon’s establishment of a cabinet-council system of executive branch management in lieu of the super-department proposal.^{Footnote 32} Nixon’s Environmental Quality Council was the forerunner of this scheme.

Apart from the fear of being saddled with an advisory body that would reflect the views of extreme environmentalists, the Nixon administration had little to say about the nature of advice that would emanate from its own innovation or from that foisted on it by Congress. The public record shows that Nixon’s major concern focused on the coordinating capacity of any environmental policy body rather than its advisory role and, therein, was a major point of difference between the presidential perspective on how to organize the White House and that of Congress. The argument about flexibility was also a significant point of contention. The president wanted an environmental policy unit that could be adapted to changing circumstances and could even be dispensed with should it be deemed not to be serving the interests of the president. The case the Nixon administration made may not have been strong and it certainly was not strong enough to sway opinion within Congress, but it did indicate a clear White House perspective on the design of the presidential advisory system, and it was an unambiguous expression of opposition to what Congress was trying to do by way of the proposed Council on Environmental Quality.

In two respects, the argument President Nixon advanced stopped short of what might have been said. Those members of the Nixon administration who testified before the two congressional committees never asserted that what Congress wanted to do was an interference with executive prerogative or a breach of the separation of powers. Their case went no further than claiming that the Nixon cabinet-council was better than the congressional version and that the proposed CEQ was unnecessary because of the prior existence of the Nixon model. However, for a fleeting moment, the propriety of what Congress wanted to do was alluded to in testimony to the Senate committee, although not from the Nixon administration but from Senator Jackson’s chief adviser on NEPA, Professor Lynton Caldwell.

In responding to a question from Republican Senator Len Jordan, Professor Caldwell admitted that “there is a question here, it seems to me, of whether the president ought to have the full initiative, the freedom of exercising his own Executive Office, and the extent to which Congress should attempt to guide the President in that organization.”^{Footnote 33} But, to be fair to Professor Caldwell, he had not intended his statement to be read as a recognition that Congress might possibly be impinging on the separation-of-powers by legislatively imposing the CEQ on the president. Indeed, it was part of the opposite argument that the CEQ ought to be as much a congressional agency as a presidential one because environmental policymaking had to be a shared responsibility between the two branches.

Neither did the Nixon administration try to reinforce its opposition to the CEQ by threatening a veto of NEPA. Taking into account the popular policy goals of the legislation and the Democratic majority in Congress, it was, according to John Whitaker, “hardly worth a veto because the veto would have been overridden.”^{Footnote 34} In short, while clearly establishing a presidential perspective against the proposed CEQ, the arguments advanced by the Nixon administration failed to persuade a majority in Congress to support its position or to doubt the counterarguments for a CEQ put forward by Senator Jackson and others. Moreover, much of the congressional argument for the CEQ was triggered by what legislators saw as serious deficiencies in the mechanism that President Nixon had proposed.

Organizing the Presidency: The Congressional Perspective

Senator Jackson was absolutely clear in his mind about why the president of the United States needed to have a Council on Environmental Quality located in the EOP irrespective of any similar advisory body already established there. “It is my view,” he said, “that what is needed is an impartial, objective, full-time Council of Environmental Advisors in the Executive Office of the President. The interagency council that the president is considering would be useful for implementing action proposals, but the president also needs independent and impartial advice as to what action to take. The Council I have proposed would be properly staffed and equipped to provide this advice.”^{Footnote 35} By “impartial” and “objective,” the Senator meant that the advice should not come from the departments and agencies that, in his view, always reflected narrow departmental interests. He told the Senate hearing that it would be “advice that will not be adverse to them. It will be compromised advice. This has been the history of the agencies. It is hard for the President to get objective advice.”^{Footnote 36}

Senator Jackson was also concerned about the problem of executive branch coordination of environmental policy, as was President Nixon, but with a difference. When introducing NEPA on the floor of the Senate on February 18, 1969, he said: “Our present governmental institutions are not designed to deal in a comprehensive manner with problems involving the quality of our surroundings and man’s relationship to the environment. The responsibilities and functions of government institutions as presently organized are extremely fractionated.” He went on to point out that responsibility for federal programs relating to environmental management were spread over eleven executive branch departments and sixteen independent agencies. “The problems of coordination and control are obvious. It is clear that new approaches are required. . . . Better concepts and better institutions must be designed to supplement the programs and goals of existing agencies.”^{Footnote 37}

Senator Jackson’s views about the nature of advisory structures in the EOP directly countered the Nixon plan. Nixon’s cabinet-council on environmental policy would, in Jackson’s opinion, simply reflect narrow departmental interests, even though it was a cabinet-level body and chaired by the president. Interestingly, Jackson never once referred to the Nixon initiative as a cabinet council. His preferred terminology was “interdepartmental” or “interagency committee,” which, whatever the weaknesses of the Nixon proposal, certainly downgraded the status of the cabinet council. In a discussion during the Senate hearing on NEPA, Jackson challenged Dr. DuBridge’s testimony in support of the existing cabinet council that Nixon had established. “The effectiveness of these interdepartmental committees is highly questionable. . . . What happens is that they all get together, they compromise and come up with the least common denominator or they come up with as many different minority views as there are representatives.”^{Footnote 38} Rep. John Dingell, the House sponsor of NEPA, expressed an almost identical view during the House hearings on the Bill. The proposed CEQ, he said, “would provide a top level, independent body, unencumbered by the demands and politics of operating programs and individual interests, free to draw independent conclusions, and to formulate a broad policy which would be of nationwide benefit.”^{Footnote 39}

Senator Gaylord Nelson also objected to President Nixon’s proposal, and his objections were directed to the role of the president himself. The Nixon cabinet-council model had the president as chair of the cabinet committee and that was a selling point for those testifying to Congress on behalf of the administration’s proposal. To them, it indicated the seriousness and importance President Nixon attached to his new structure for environmental policy advice in the White House. Senator Nelson, on the other hand, was deeply skeptical about the amount of time and energy the president could devote to environmental policy. In a sharp exchange with Interior Secretary Walter Hickel during the Senate hearing, Senator Nelson remarked: “Everybody here knows without saying that there are 300 hours of time demanded of the President for every hour that the poor man who holds that responsibility can give. . . . If you are really expecting the President to lead it, how much time can he spend on it? In all due respect, the President is just too harassed. . . . I just quite frankly don’t think the President can devote all that time to this problem.”^{Footnote 40}

Senator Nelson’s concerns were reinforced in the testimony of Professor Caldwell He, too, questioned whether the president would be able to devote sufficient time to this one policy area. But Caldwell went further than Senator Nelson and linked the prospect of a high degree of personal presidential involvement to the fear of overload. “Are we making the Presidency unmanageable?” he asked. “There is a growing feeling among students of public policy in the United States, and I think among citizens generally, that we are increasingly placing upon the Office of the President responsibilities and burdens that no individual can be expected to manage.”^{Footnote 41}

Senator Jackson’s central concern about the need for the president to have access to independent and impartial advice on environmental policymaking was taken one step further during the Senate hearing. It was first raised in a written submission from Wisconsin Democratic congressman Henry Reuss, who, although strongly supporting the proposed CEQ, thought that its members ought not to serve at the pleasure of the president, but rather be appointed for a fixed term so that they would be independent of the president and “insulated from presidential pressure so they can speak up if they feel they must.”^{Footnote 42} He advocated a council whose members would be appointed for a staggered six-year term. Support for the idea of an independent advisory body came from the Republican side as well. Senator Jordan told his colleagues on the Interior Committee that he saw “some merit to . . . having an independent council whose sole and single purpose is to deal with this subject.”^{Footnote 43} He did not specifically endorse the Reuss proposal on fixed-term appointments, but he went even further than Congressman Reuss in pursuit of an independent council by raising the possibility of establishing a body “set up like the Federal Reserve Board, with almost complete independence.”^{Footnote 44}

That proposal came during an exchange with Professor Caldwell, who responded that he had some reservations about placing the CEQ in the Executive Office of the President, and that “the possibility of such an independent agency ought to be considered.” Much of his empathy with Senator Jordan’s position was consequent on his own strongly held view that the whole exercise of establishing and implementing a national environmental policy was a joint responsibility of the president and the Congress, not merely a responsibility of the president alone. “The Constitution of the United States,” he said at the Senate hearing, “places on Congress a responsibility for the formulation of national policy that it cannot avoid.” He argued that Congress needed to do more in the shaping of domestic policy, that the president must share with Congress policy determination in environmental matters, and that “we need somewhere [in the structure of government] an independent forum and focus for a review of the Nation’s condition of the environment, a body that is capable of making assessment not only of our current conditions, but of presenting alternatives for coping not only with the problems that we know about, . . . but with problems that we have yet to face.”^{Footnote 45}

Implicitly, Professor Caldwell did not see the CEQ as an exclusively presidential agency serving just the needs of the president. It was, in his view, an institutional device through which the president would share environmental policymaking with the Congress. Moreover, he suggested that the Congress and the country would have less confidence in a policymaking unit that was “tied closely to the politics and personality of the incumbent President as they would in an organization created by the Congress and staffed independently of any other agency affiliation.”^{Footnote 46}

Lynton Caldwell was not the only distinguished academic used to reinforce the views of the sponsors of the various bills before Congress. Senator Jackson also placed considerable weight on a paper written by Professor Stephen K. Bailey, then Dean of the Maxwell Graduate School of Public Affairs at Syracuse University, which had been published in a volume produced in 1968 by the Brookings Institution entitled Agenda for the Nation.^{Footnote 47} The book highlighted what it considered to be the urgent policy issues facing the new administration when it took office in January 1969, and Professor Bailey’s contribution addressed the issue of managing the federal government. Jackson had placed an edited version of the paper in the Congressional Record and again in the Senate Interior Committee’s published hearing on NEPA.^{Footnote 48}

Bailey’s argument was that the structural fragmentation and diffusion of power, control, and accountability across the whole of the federal government were “grotesque in their complexity” and, unless remedied, “the consequences for the future of the American polity could be serious in the extreme.”^{Footnote 49} What must have appealed to Senator Jackson was that Professor Bailey had specifically identified “environmental management and control” as one of the preoccupations of the modern presidency in the field of public policy, the other three being national security, economic stability and growth, and human resource development.^{Footnote 50} In that respect, the professor and the senator were at one on the urgency of better federal government coordination and management in the field of environmental policy.

Professor Bailey also criticized attempts at coordination by presidential advisers and White House assistants and highlighted another institutional pathology of presidential staffing that indirectly supported the case that Senator Jackson was making for his proposal. In this instance, Bailey was referring to the president’s closest and most senior aides in the White House Office, not the kind of outside experts who were to be the appointees to the CEQ. Bailey made a number of comments on the institutional risks when presidents delegate major authority to senior staffers, in essence arguing that it sets up a no-win situation and that presidential staff, no matter how brilliant, are limited by legal and political realities.^{Footnote 51} Again, Professor Bailey’s criticisms of this particular coordinating mechanism were consistent with the purposes of the institutional device that Senator Jackson wanted to put in place.

Professor Bailey also pointed to the macro deficiencies in the presidential policy-making process. His major criticism of the EOP was its weakness in policy development. He believed that there was “no effective agency in the EOP charged with the study of emerging public problems and the development of effective programs to deal with them in terms of continuing and changing presidential perspectives of the public interest.” He made two exceptions: economic stabilization policy and national security policy where the Council of Economic Advisers and the National Security Council staff had provided policy review capabilities. But he went on to say that, “in the increasingly troublesome and important areas of environmental management, the EOP is patently deficient.” Bailey bemoaned the demise of the National Resources Planning Board, one of the original agencies established in the EOP in 1939 but terminated in 1943. Since it ceased to exist, he said, “no presidential staff has concerned itself full-time with ecological interdependencies.” He noted that there had been “some gestures in this direction”—he mentioned the Committee on Environmental Quality in the Office of Science and Technology and a Water Resources Council that was outside the EOP—but, he said, “the former is too small and weak to be effective” and “the latter is limited by statute to water resources alone.” Again, providing strong ammunition in support of Senator Jackson, Bailey suggested that the Committee on Environmental Quality “should be reconstituted as a separate, strongly staffed office in the Executive Office of the President.”^{Footnote 52}

Notwithstanding the problems that Professor Bailey identified in the structure of the EOP, he was firmly of the view that responsibility for major policy initiatives concerning “the integrity and viability of the physical environment” must reside with the president. “The presidency is the only institution in the American polity,” he wrote, “where overarching and long-range public imperatives can be coherently analyzed and melded.”^{Footnote 53} Again, Bailey’s perspective fitted well with Senator Jackson’s intentions in that NEPA delegated all responsibility for environmental policy to the president once Congress had formally recognized, as it did in Section 101(a) of the act, “the profound impact of man’s activity on the interrelations of all components of the natural environment.” The act imposed no duties or responsibilities on Congress to do anything more about environmental policy apart from receiving the annual environmental quality report from the president.

Professor Bailey’s paper was not written specifically for Senator Jackson’s committee, nor was it meant to apply only to the problems of environmental policymaking, but parts of it fitted very conveniently with the senator’s aims and provided a useful academic justification for the institutional structure to be established by NEPA. However, other parts of the Bailey paper were not so supportive and, in major respects, directly challenged the wisdom and practicality of NEPA, particularly the proposed CEQ. Bailey’s paper diverged significantly from Senator Jackson’s response to the problem of environmental policymaking and, ultimately, provided compelling arguments against the Jackson initiative.

Consistent with his view that the presidency had to be the focal point for long-range public policy development, Professor Bailey argued that the structure of the EOP “must reflect the prime concerns of the nation as viewed from the vantage point of the chief executive” and that the president “must be given very substantial latitude in organizing, reorganizing, and adjusting the constituent units of his executive office.” The president had to have the right “to structure and manage his own office without restriction, including the right to make in-office appointments without Senate confirmation and the right to create, shift, and abolish constituent units and personnel assignments as he deems necessary for the effective conduct of presidential business.” If the president can win that right from Congress, Bailey said, “he will have won a major victory for effective public management.”^{Footnote 54} Although he never spelled out why any presidential staff unit would fail if the president was not allowed complete discretion over the organization of the presidency, the message that failure would result was explicit in his writing and was repeated emphatically in the final section of his paper, a section that had been omitted from the version that Senator Jackson placed in the Congressional Record and in the Senate committee hearing on NEPA. “Above all,” Bailey wrote in the conclusion to his paper, “the President should attempt to win from Congress a greater measure of discretion in effecting organizational shifts and consolidations in the executive branch, especially within his own Executive Office.” He insisted that the president should have permanent authority to submit reorganization proposals to Congress and that his power to reorganize the Executive Office should be “plenary.”^{Footnote 55} What, then, would be the role of Congress in shaping presidential decisionmaking mechanisms in the EOP? Bailey’s answer focused on the oversight function of Congress through its standing committees, the appropriations process, the advice-and-consent power, and investigation conducted by its Committees on Government Operations. The oversight process would give Congress a share in the overall management of public policy but would not dilute with the needs of the president in managing his responsibilities.^{Footnote 56}

Bailey’s concerns about how the Executive Office of the President ought to be structured and shaped was at odds with the design of the CEQ that Congress legislated one year after his paper had been published. Senator Jackson and his colleagues had done everything, specifically in relation to the proposed CEQ, that Professor Bailey had urged them not to do generally. The CEQ was placed in the Executive Office of the President against the wishes of the incumbent president and contrary to the structure for environmental policymaking that President Nixon preferred. Moreover, because it was established by statute, it could not be reformed, changed, or abolished without the approval of Congress. Jackson’s design gave no scope to the president to exercise “plenary” power or even “discretion” over the shape of the EOP. The thrust of Professor Bailey’s paper was that units in the EOP ought to be the creation of the president. The CEQ was just the opposite—a creature of Congress.

This part of Professor Bailey’s paper did not feature in the debate that took place in the Senate or the House committee hearings on NEPA. Bailey’s argument was ignored by the majority. On the other hand, the spokesmen for the Nixon administration who testified in favor of Nixon’s cabinet-level Environmental Quality Council and against the congressionally-imposed CEQ seemed unwilling to use the arguments advanced by Professor Bailey or, more probably, were unaware that the paper existed. Nevertheless, Professor Bailey’s perspective on the shaping of the EOP was fundamentally important in the longer-term debate about the institutional presidency. The thrust of his message was that a congressionally created staff unit placed in the Executive Office against the wishes of the president would, implicitly, fail. It was a message that was not only applicable to the CEQ, but also to a host of other Executive Office agencies that have been created by Congress.

The other aspect of Professor Bailey’s paper that was ignored by the congressional advocates of NEPA was his emphatic statement that “political reforms in the structure of Congress are the prerequisites of effective structural reforms in the executive branch.”^{Footnote 57} This section appeared at the end of the paper and was wholly contained in the twelve pages of the original that Senator Jackson or his staff had omitted from the version included in the Senate Committee hearings. Bailey’s message was that no meaningful reform of the way federal government dealt with major policy problems would occur unless Congress changed its modus operandi.^{Footnote 58} “The goal,” Bailey said, “is not to make Congress subservient to the President: it is to subject atomized power to the discipline of general politics in these two branches of government.”^{Footnote 59} But, presumably, Senator Jackson and his colleagues saw this as a proposal that Congress should yield significant power to the President and wanted no part of it.

NEPA was a direct test of the willingness on the part of Congress to undertake the changes identified by Professor Bailey in two respects, and on both Congress responded in a contrary way. The first was its reluctance to give the President the flexibility to organize the Executive Office in the way that he wanted. The second was its rejection of a proposal made by Senator Nelson to establish a joint congressional committee on the environment as part of the institutional design of NEPA. Bailey had extolled the virtues of the joint congressional committee idea, committees that would have neither legislative authority nor direct oversight responsibility for any department or agency of government, but a mandate to examine policy in the long-term and across narrow departmental and agency jurisdictions. In his paper, Bailey had specifically proposed the creation of a Joint Committee on Environmental Management. By rejecting Senator Nelson’s similar proposal, Congress showed its unwillingness to do anything to disturb the existing committee divisions of responsibility in Congress.

Professor Bailey’s paper made important contributions to the debate on how the EOP should be used to respond to pressing longer-term policy problems and what preconditions would have to be met for reform to be successful. However, it was somewhat disingenuous of Senator Jackson to claim that Bailey provided support for the institutional arrangements established in NEPA, and even more disingenuous not to include the complete version of Professor Bailey’s paper in the exhibits placed before the Senate Interior and Insular Affairs Committee when it was considering the legislation. Bailey’s paper did provide support for some aspects of NEPA, but, in the longer term, the paper is more significant for providing an analysis of institutional design through which one might better comprehend why NEPA and its progeny, the CEQ, has failed to achieve what its designers obviously hoped it would achieve.