Chapter 14 - § 14.6 • CONTENTS OF THE EIS OR EA
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An agency generally follows the same format in preparing an EIS or EA.
§ 14.6.1—Purpose And Need
The purpose and need section in an EIS or EA is a brief statement of "the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action."144 It is simply the agency's goals or objectives in conducting the NEPA process.145
The purpose and need statement is a critical — and often overlooked — section of an EIS or EA. It defines the range of reasonable alternatives.146 Alternatives that would accomplish the objectives in the agency's purpose and need statement are deemed reasonable.147 "Alternatives that 'do not accomplish the purpose of an action are not reasonable' and need not be studied in detail by the agency."148 In this manner, the purpose and need statement shapes the scope and structure of the EIS or EA.
The purpose and need statement sets forth the agency's objectives, and "an agency has wide discretion in defining" them.149 Where federal action is proposed by a private applicant, some courts have ruled that, so long as it is reasonable, the agency may take the proponent's goals into account in identifying the agency's objectives.150 The Tenth Circuit has ruled, for example, that where "the action subject to NEPA review is triggered by a proposal or application from a private party, it is appropriate for the agency to give substantial weight to the goals and objectives of that private actor."151 The agency's purpose and need statement, however, cannot be defined so narrowly as to preclude consideration of reasonable alternatives to the proposed action.152
§ 14.6.2—Alternatives
The proposed action and alternatives are "the heart of the environmental impact statement."153 Agencies must "[r]igorously explore and objectively evaluate all reasonable alternatives" to the proposed action, including the alternative of "no action."154 If an agency decides not to evaluate a particular alternative, it must "briefly discuss the reasons for" eliminating the alternative from further review.155
Proposed Action
The proposed action alternative is the federal action under review in the EIS or EA. It may be proposed by a federal agency or by a third-party applicant or proponent of federal action, such as an applicant for a federal permit, decision, or development project.
No Action
The no action alternative simply means that the proposed action would not be authorized, and the proposed activity would not take place.
Reasonable Alternatives
An agency's obligation to evaluate alternatives apart from the proposed action and the no action alternative is limited to "reasonable alternatives," including those that are "not within the jurisdiction of the lead agency."156 The failure to examine a reasonable alternative is grounds for a court to set aside an EIS.157 A reasonable alternative to the proposed action is one that would accomplish the goals or objectives identified in the agency's purpose and needs statement.158 An alternative that would not accomplish those objectives is not a reasonable alternative and may be eliminated from detailed consideration.159 An agency has "wide discretion" in determining which alternatives meet its objectives.160 Once an agency has defined its objectives — and thereby the range of reasonable alternatives — it is not required to analyze alternatives that are remote, speculative, impractical, or ineffective at achieving the stated goals,161 or that are not significantly distinguishable from alternatives that are actually considered.162
§ 14.6.3—Affected Environment
The "affected environment" section of the EA or EIS is a succinct description of the existing relevant "human environment" that may be affected by the proposed action.163
§ 14.6.4—Environmental Consequences
The "environmental consequences" section of the EA or EIS is the analytic center of the NEPA document. It is where the agency identifies the reasonably foreseeable direct, indirect, and cumulative effects of the proposed action and the alternatives on the "affected environment."164 The agency must identify: adverse environmental effects that cannot be avoided if an alternative is implemented; irreversible or irretrievable commitments of resources associated with an alternative; conflicts between alternatives and identified objectives of federal, state, and local land use plans; and means to mitigate environmental impacts.165
Cumulative Effects
In addition to direct and indirect effects, the environmental consequences section of an EIS or EA should disclose cumulative effects or impacts.166 "Cumulative impacts" are "the impact on the environment which results from the incremental impact of the [proposed agency] action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions."167
Connected Actions
Actions that are "closely related" or "connected" must be analyzed in the same EIS.168 The connected action rule seeks to prevent agencies from segmenting a single action with significant environmental consequences into individual components that do not separately produce significant environmental impacts.169 Actions are connected if: (1) the action automatically triggers another action requiring an EIS; (2) the action "[c]annot or will not proceed unless other actions are taken previously or simultaneously"; or (3) the action is an "interdependent part" of a larger action and depends on the larger action for its justification.170 Where each of two actions would take place without the other, the actions have "independent utility" and are not connected actions.171
The Hard Look Requirement
Under the "rule of reason" adopted by the courts, a NEPA document need only provide "a reasonably thorough discussion of the significant aspects of the probable environmental consequences" of the action under consideration.172 This is the "hard look" requirement — the environmental consequences section of an EIS or EA must show that the agency took a "hard look" at the reasonably foreseeable direct, indirect, and cumulative effects of the proposed action and alternatives.173 "Perfection is not the test,"174 nor do Courts require the "best possible methodology."175 Courts will not "flyspeck" an agency's analysis, but will set aside agency action if the underlying EA or EIS does not demonstrate that the agency took the requisite "hard look."176 An agency must disclose the environmental impacts of a proposed action even though the action — and the impacts — may be subject to regulation under, and compliant with, other environmental laws and regulations.177
Technical Issues, Uncertainty, and Disagreement
An agency has considerable discretion concerning scientific and technical matters analyzed in an EIS or EA.178 So long as it is not arbitrary and capricious, an agency may rely on its own experts, even though others may disagree with their findings,179 including other federal agencies.180 NEPA does not require an agency to resolve scientific disputes, or determine which methodology is best.181 Disagreement with an agency's technical conclusions in an EIS does not show that the agency failed to take a hard look, or violated NEPA.182
§ 14.6.5—Climate Change In The NEPA Process
Climate change has emerged as a significant issue in NEPA analyses, particularly for federal actions that directly - or indirectly - authorize or involve the issuance of greenhouse gases that contribute to climate change. Although NEPA does not require agencies to analyze effects that are hypothetical, remote, or speculative,183 numerous judicial decisions recognize that an agency has a duty to disclose the potential effects of the proposed action - and reasonable alternatives - on climate change, for example, by disclosing the greenhouse gas emissions that may result from the proposed action and alternatives. As of June 2020, one database reports over 200 lawsuits involving climate change and NEPA.184 Although climate change may have been characterized as speculative in the past, it is an issue that, depending on the proposed action, may be appropriate for an agency to address in the NEPA process. There are two common ways that climate change may be an issue in an EA or EIS.
First, climate change (and associated factors such as greenhouse gas emissions or drought) may have an effect on the proposed action or other alternatives, for example by limiting or constraining the action. If so, the agency may address climate change in the affected environment section of the NEPA document, and may discuss the effects of climate change on the alternatives in the environmental consequences section of the EA or EIS.
Second, the proposed action itself (or other alternatives) may have an effect on climate change. If that effect is reasonably foreseeable, and capable of analysis, courts have required agencies to evaluate the direct and indirect effects of the alternatives on climate change, specifically by disclosing direct and indirect greenhouse gas emissions resulting from the proposed action and the alternatives.
In an influential 2008 decision, the Ninth Circuit Court of Appeals set aside an agency's reliance on an EA for proposed automobile fuel economy regulations because the NEPA document did not evaluate the cumulative effects of automobile air emissions under the proposed regulations with other foreseeable greenhouse gas emissions.185 The court determined that "[t]he impact of greenhouse gas emissions on climate change is precisely the kind of cumulative impacts analysis that NEPA requires agencies to conduct."186 A few years before that, the Eighth Circuit Court of Appeals ruled that an EIS for expanding rail lines to ship coal from Wyoming to other states for electricity generation was deficient because the EIS did not address the greenhouse gas impacts of the anticipated use of the...
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