The Gap Between Informational Goals and the Duty to Gather Information: Challenging Piecemealed Review Under the Washington State Environmental Policy Act

• Publication year: 2001
• Citation: Vol. 25 No. 01

SEATTLE UNIVERSITY LAW REVIEWVolume 25, No. 1FALL 2001

ARTICLES

The Gap Between Informational Goals and the Duty to Gather Information: Challenging Piecemealed Review under the Washington State Environmental Policy Act

Keith H. Hirokawa(fn*)

In 1971, Washington enacted the State Environmental Policy Act(fn1) (SEPA), thereby announcing its recognition of "the necessary harmony between humans and the environment in order to prevent and eliminate damage to the environment and biosphere, as well as to promote the welfare of humans and the understanding of our ecological systems."(fn2) To implement this policy, SEPA requires agencies to gather relevant information and engage in an open and public study of "probable significant, adverse" environmental impacts for all "proposals for legislation and other major actions."(fn3) Procedurally, SEPA requires agencies to make a threshold determination of whether the project is likely to significantly affect the environment and, where such impacts are likely, to produce an environmental impact statement (EIS).(fn4)

One problem faced in implementing the goals of SEPA is the practice of "piecemealing." Defined broadly, piecemealing is a method of circumventing SEPA's informational mandate by dividing a proposal into pieces and separately studying their adverse impacts.(fn5) In such cases, the environmental impacts of each individual part may appear negligible, and so comprehensive environmental review appears unwarranted even though the proposal as a whole may have a significant impact on the environment.(fn6) Piecemealing may occur in the context of a physical project, such as the segmentation of a construction proposal into several small, insignificant actions.(fn7) It may also occur over time, when environmental review is conducted only on current segments of a project, and review of later segments is postponed until they actually begin construction.(fn8) Under either scenario, the danger of piecemealed review is that "the later environmental review often seems merely a formality, as the construction of the later segments of the project has already been mandated by the earlier construction."(fn9)

Piecemealing detracts from the informational goals of SEP A, as codified in its legislative and regulatory mandates.(fn10) Both state and federal courts have disapproved of piecemeal review whenever they have successfully identified it.(fn11) Therefore, one would expect that the problem of piecemealed review should not exist. However, the courts have been inconsistent in their treatment of piecemeal review, particularly where the project under review seems to indicate few environmental concerns on its own. Because of this uncertainty, environmental advocates continue to raise the SEPA flag in response to allegedly improper "phased" and "tiered" environmental studies(fn12) while agencies and courts struggle over, and often simply ignore, the piecemeal problem.(fn13) As a consequence, the rural and natural land-scape of Washington is being altered by patchwork development without an understanding of the inevitable impacts.

Part I of this Article introduces the piecemeal problem by describing three common piecemeal situations. The first situation occurs when a project proposal is divided into such small parts that the environmental impacts from each individual part appear insignificant and the impact from the sum of the parts is ignored. The second situation arises when a project proposal is properly divided into phases of construction, but earlier phases avoid the speculative study of environmental impacts accumulating with later phases, and later phases are drawn narrowly to avoid study of the cumulative impacts from earlier phases. The final piecemeal situation arises when environmental review of land use legislation is deferred based on promises of site-specific review for projects subject to the proposed scheme, but project proponents subsequently disclaim responsibility for assessing the cumulative environmental impacts from that legislation. Part II will then demonstrate the legislative and regulatory intent that environmental impacts be examined in a thorough and comprehensive manner and confirm this requirement of comprehensive review with a brief examination of case law that establishes a prohibition against piecemealed review.

After Parts I and II establish that the piecemeal problem should not exist, Part III will proceed to discuss the source of the continuing piecemeal problem, specifically addressing the continuing confusion in the application of two independent regulatory standards purporting to restrict piecemealed review-cumulative impact analysis and project connectivity. Part IV examines in detail the judicial confusion over the interpretation of these standards under both SEPA and its federal counterpart, the National Environmental Policy Act (NEPA).(fn14) Having established that the interpretive confusion is unwarranted, Part V then considers whether practical concerns may justify the piecemeal loophole and concludes that such concerns are inimical to the purposes underlying SEPA. Finally, Part VI of this essay examines supplementary environmental studies as a potential, but questionable, solution to the piecemealing problem.

I. An Introduction To Piecemealing-Three Examples

When SEPA is stripped down to its effective elements, shed of the sparkle and glitter of its "green aspirations," all that remains is the mandate that information accompany action.(fn15) SEP A was designed to combat the ignorance that results from uninformed decision making.(fn16) Pursuant to the SEP A mandates, agencies are required to prepare a thorough, two-tiered environmental review, including information gathering and environmental analysis on collective and cumulative impacts.(fn17) The threshold determination is whether the proposal satisfies the triggering test: is it a major action significantly affecting the environment?(fn18) Then, if there is a likelihood of "more than a moderate" unmitigated adverse effect on the environment, the lead agency must order an environmental impact statement.(fn19)

Agencies fall short of SEPA's goals when information is omitted from, or ignored in, the study of environmental impacts; one of the reasons SEPA was enacted was to ensure the "consideration of environmental factors at the earliest possible stage to allow decisions to be based on complete disclosure of environmental consequences."(fn20) Although SEPA does not require any particular result in environmental decision making, it does mandate that "environmental amenities and values be given appropriate consideration in decision making along with economic and technical considerations."(fn21) However, piecemeal-ing neutralizes the ability of agencies and the public to access this information.

Piecemealing may be generalized into three different scenarios. The first scenario, referred to as the classic piecemealing example, typically occurs as the segmentation of large, significant projects into smaller, insignificant parts. Classic piecemealing effects prospective ignorance due to the difficulties in predicting the cumulative impacts, number of project parts, or even the ultimate size of the project. In the other two types of piecemealing-the plan-to-project gap and regulatory postponement-environmental review of land use planning avoids premature cumulative impact studies because the nature of the projects that may be implemented under the plan is speculative. Subsequently, the individual projects implementing the land use plan seem too minor to be shouldered with the burden of a significant environmental impact study.

All three scenarios thus have a common result: the full environmental impacts of a project are never fully investigated or understood.

A. Classic piecemealing-Project Segmentation

Highway construction is the most common example of classic piecemealed review because new highways are often planned and implemented in small, cost-feasible segments. As each segment is processed for environmental and regulatory compliance, the lead agency typically limits environmental impact analysis to the physical footprint of the proposed segment. The project is approved, and construction commences without an understanding of the adverse impacts from constructing the entire stretch of roadway. This, the most rampant example of piecemealed review, is usually easy to identify.

On the local level, classic piecemealing typically occurs in "phased" developments. In phased developments, project proponents seek approval of plans to construct a project in a patchwork fashion over a period of time. Planning for these projects is often piecemealed as a matter of practicality because financial or planning concerns force the project proponent to proceed in phases. On occasion, deferral of a comprehensive environmental impact study appears logical because later phases of a project may be subject to change. In the absence of a concrete plan, project proponents cannot be expected to predict environmental impacts at the beginning of the planning stages.(fn22) However, an appropriate circumstance for phased construction does not directly translate into an appropriate circumstance for phased environmental review.(fn23) From a SEPA perspective, phasing is improper if it results in an avoidance of a cumulative impact study for the entire project or...