Perspectives on NEPA: Let's Bring a Bit of Substance to NEPA- Making Mitigation Mandatory

• Date: 01 July 2009

39 ELR 10638 EnviRonmEntaL Law REpoRtER 7-2009

Perspectives on NEPA: Let’s Bring

a Bit of Substance to NEPA—

Making Mitigation Mandatory

by K. Jack Haugrud

K. Jack Haugrud is Chief of the Natural Resources Section within the Environment & Natural Resources

Division of the United States Department of Justice. e views, opinions and statements presented in this Article

are those of the author and do not represent the views or positions of the Department of Justice.

To ma ny proponents of the National Environmental

Policy Act (NEPA),1 the Act will never fully realize

its promise as long as it remains enforceable only as a

procedural requirement. During the rst decade of NEPA’s

existence, an open issue arguably existed as to whether

NEPA imposed enforceable substantive requirements as well

as procedural ones.2

In 1980, however, the U.S. Supreme Court removed any

doubt on the subject in its terse decision in Strycker’s Bay

Neighborhood Council v. Karlen,3 where it held that a court’s

only role is to insure that NEPA’s procedural requirements

have been followed and that the agency has considered the

environmental consequences of its action. e Supreme

Court later succinctly summarized its procedura l view of

NEPA in Robertson v. Methow Valley Citizens Council4:

e sweeping policy goa ls announced in §101 of NEPA are

thus realized t hrough a set of “action-forcing” procedu res

that require that agencies take a “hard look” at environmen-

tal consequences.... Although t hese procedures are almost

certain to aect the agency’s substantive decision, it is now

well settled that NEPA itself doe s not mandate particular

results, but simply prescr ibes the necessary process. . ..

Other statutes may impose substantive environmental obli-

gations on federal agencies, but NEPA merely prohibits

uninformed—rather th an unwise—agency action.5

1. 42 U.S.C. §§4321-4370f, ELR S. NEPA §§2-209.

2. See, e.g., Calvert Clis Coordinating Committee v. U.S. Atomic Energy

Comm’n, 449 F.2d 1109, 1115, 1 ELR 20346 (D.C. Cir. 1971) (“e review-

ing courts probably cannot reverse a substantive decision on its merits, under

§101, unless it be shown that the actual balance of costs and benets that was

struck was arbitrar y or clearly gave insucient weight to environmental val-

ues.”); Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558, 8

ELR 20288 (1978) (“NEPA does set forth signicant substantive goals for the

Nation, but its mandate to the agencies is essentially procedural.”).

3. 444 U.S. 223, 227-28, 10 ELR 20079 (1980).

4. 490 U.S. 332, 19 ELR 20743 (1989).

5. Id. at 350-51 (citations omitted).

While NEPA has been interpreted as imposing purely

procedural requirements, some of the state-enacted Environ-

mental Policy Acts (SEPAs) are not so conned. While the

requirements of SEPAs vary dramatically, some states impose

substantive requirements and, in particular, include a duty to

mitigate environmental harm whenever feasible. For exam-

ple, the California Environmental Quality Act (CEQA) very

explicitly imposes substantive requirements, establishing a

policy t hat each “public agency sha ll mitigate or avoid the

signicant eects on the environment of projects that it car-

ries out or approves whenever it is feasible to do so.”6

While NEPA implementing regulations require federal

agencies to examine “appropriate mitigation measures not

already included in the proposed action or alternatives,” 7 the

agencies are not required to implement such mitigation mea-

sures or even f ully develop a mitigation plan.8 NEPA has nev-

ertheless encouraged adoption of mitigation measures in a

somewhat backhanded way through the judicial acceptance

of mitigated ndings of no signicant impact (FONSIs),

i.e., a nding of no signicant impact based on the adop-

tion of mitigation measures that reduce the possible adverse

environmental impacts below the signicance threshold that

would trigger the need for an environmental impact state-

ment (EIS).9 To avoid t he time and expense of preparing

6. C. P. R. C 21002.1(b). See Fairview Neighbors v. County of Ventu-

ra, 82 Cal. Rptr. 2d 436, 440 (1999) (“CEQA requires agencies to implement

feasible mitigation measures or alternatives identied in the [Environmental

Impact Report]”).

7. 40 C.F.R. §1502.14(f). ese regulations help implement NEPA’s directive to

discuss “any adverse environmental eects which cannot be avoided should the

proposal be implemented.” 42 U.S.C. §4332(2)(C). e CEQ regulations also

dene “mitigation.” 40 C.F.R. §1508.20.

8. See, e.g., Methow Valley, 490 U.S. at 352-53; Laguna Greenbelt v. U.S. Dep’t of

Transportation, 42 F.3d 517, 528, 25 ELR 20349 (9th Cir. 1994).

9. See, e.g., Tillamook County v. U.S. Army Corps of Engineers, 288 F.3d 1140,

1144, 32 ELR 20625 (9th Cir. 2002) (“An agency’s decision to forego prepa-

ration of an EIS may be justied, even in the presence of adverse environ-

mental impacts, if the agency adopts mitigation measures in response to

identied impacts.”).