—the Second Circuit held that the Federal Power Commission violated NEPA "by conducting hearings prior to preparation by its staff of its own impact statement".

"The danger of this procedure [the one followed by the FPC], and [its] obvious shortcoming, is the potential, if not likelihood, that the applicant's statement will be based upon self-serving assumptions."

As the master and the district court noted, the responsible federal agency has a "primary and non-delegable responsibility" to make its own comprehensive and objective evaluation of the environmental impact of a project constituting a major federal action.

Put another way, has the FHWA here, as the FPC was found to have done in Greene County, "abdicated a significant part of the responsibility by substituting the statement of [the VHD] for its own"?

"***[T] he statement may well go to waste unless it is subject to the full scrutiny of the hearing process***."

For example, the presumption has been recognized in cases under the National Environmental Policy Act, 42 USC § 4321 et seq., holding that the requirement of filing an environmental impact statement cannot reasonably be applied to projects substantially completed

"Guidelines are merely advisory and the Council on Environmental Quality has no authority to prescribe regulations governing compliance with NEPA."

—required the Federal Power Commission to assure that the entire project was "best adapted" to a comprehensive environmental plan before licensing construction of a power line.

—rejecting the FPC's argument as to when an EIS had to be filed, Judge Kaufman commented: 9 NEPA § 4342.

In Greene County the court stated that the FPC could not “fulfill the demanding standard of “careful and informed decisionmaking'[of NEPA if it] can disregard impending plans for further power development....[W] e cannot tolerate the Commission cutting back on its expanded responsibility by blinding itself to potential developments notwithstanding its lack of authority to …