Federal Environmental Impact Statements: Overly Inflated Needs Result in Needless Environmental Harm

• Author: Gordon Steinhoff
• Pages: 181-198

181

Chapter 9

Federal Environmental

Impact Statements:

Overly Inflated Needs Result in

Needless Environmental Harm

According to the National Environmental Policy Act (NEPA),1 a federal

action that may signicantly harm the environment must be evalu-

ated in an environmental impact statement (EIS). Federal regulations

implementing NEPA specify the required structure of these documents. A n

EIS must describe the proposed action. It must compare the expected envi-

ronmental impacts of the proposed action with those of reasonable alterna-

tives. Also, an EIS must include a statement of the purpose of, and need for,

the proposed action.2

Unfortunately, the regu lations do not provide guida nce concerning how

to determine t he need for a proposed action. Typically, the declared need

for a proposed action includes items that are not genuine needs. ey are

necessary conditions for achieving desired goals, necessary conditions that

are missing at the time the action is planned. ese items are “needs” only in

the sense that they are missing a nd are needed to achieve the desired goals.

For example, the declared need for an airport expansion project may include

economic development of the city in which the airport is located.3 e eco-

nomic development is not a genuine need. It is a necessary condition, miss-

ing at the time the action is planned, for achieving the goa l of economic

prosperity. Economic prosperity is merely desired; it is itself not a genuine

need. at the declared need for a proposed action includes such necessary

1. 42 U.S.C. §§4321, 4331-4335.

2. See 40 C.F.R. §1502 (1987).

3. is example is suggested by the airport expansion project at issue in Citizens Against Burlington v.

Busey, 938 F.2d 190 (D.C. Cir. 1991).

Note: is chapter is adapted from Federal Environmental Impact Statements: Overly

Inated Needs Result in Needless Environmental Harm, 23 E G J.

(Spring 2006).

182 Naturalness and Biodiversity

conditions is an extremely important problem. e combined “purpose a nd

need” determines which alternatives must be evaluated in an EIS. Accord-

ing to federal agencies and the courts, t here is no requirement to evaluate an

alternative that does not meet the declared purpose and need.4 e resu lt of

federal agencies inating the need for a proposed action by including within

it such necessary conditions is that alternatives that would provide genuine

needs with little environmental impact are not evaluated and have no chance

of being selected. ey are automatically ruled out. Agencies typically select

the proposed act ion over the alternatives that are evaluated based on how

much better the proposed action meets the purpose and need. Far too often,

the environment is needlessly harmed.

In this chapter, I will discuss two EISs that il lustrate this practice espe-

cially well. One is an EIS issued by the Federal Highway Ad ministration

(FHWA) concerning a controversial bridge project. e other is an EIS

issued by the U.S. Forest Service concerning a timber sale. In both docu-

ments, the declared need for the proposed action consists of items that are

not genuine needs. ey are necessary conditions for achieving goals that

are merely desired, necessary conditions that were missing when the actions

were planned. In each document, the agency evaluates environmentally less

harmful a lternatives but rejects them using the overly inated need. Criteria

for identifying needs have been developed by philosophers David Braybrooke

and Garrett omson. As will be discussed, these criteria are useful for gaug-

ing how far the agencies are from a defensible conception of need. Following

ideas from Braybrooke a nd omson, I will develop a principle t hat federal

agencies should follow as they formulate the need for a proposed action in

an EIS. If adopted, this principle would help eliminate overly inated needs

for proposed actions, leading to more environmentally sensitive decisions. It

would allow agencies and citizens to share more precise language for think-

ing and communicating about needs, which would enhance the ability of

citizens to inuence agency decisionmaking.

4. See F H A., T I  P  N  E D-

 (1990), available at http://www.environment.fhwa.dot.gov/projdev/tdmneed.asp. According

to this document:

[T]he project purpose and need drives the process for alternatives consideration, in-depth

analysis, and ultimate selection... . [A] well-justied purpose and need is vital to meeting

the requirements of Section 4(f ).. .. Without a well-dened, well-established and well-

justied purpose and need, it will be dicult to determine which alternatives are reasonable,

prudent and practicable, and it may be impossible to dismiss the no-build alternative.

Id. See also F H A., D  E  A (2015),

available at http://www.environment.fhwa.dot.gov/projdev/tdmalts.asp. See also James Allen, NEPA

Alternatives Analysis: e Evolving Exclusion of Remote and Speculative Alternatives, 25 J. L, R-

  E. L. 287, 302 (2005).