Reader-Friendly Environmental Documents: Opportunity or Oxymoron?

• Date: 01 July 2009

39 ELR 10624 EnviRonmEntaL Law REpoRtER 7-2009

Reader-Friendly

Environmental Documents:

Opportunity or Oxymoron?

by David S. Mattern

David S. Mattern is a Senior Consultant at Parametrix. is Article is based on an earlier version presented

at the National Association of Environmental Professionals Annual Meeting, April 2006.

I. Is There a Problem?

National Environmental Policy Act (NEPA)1 environmental

documents have gotten a reputation for poor quality of late,

and there is general consensus that this reputation is largely

deserved. e public, agencies, and NEPA practitioners agree

that most documents are dicult to understand and hard to

use. Here is some of the evidence:

In a survey conducted jointly by t he American Association

of State Highway and Transportation Ocials (AASHTO)

and the American Council of Engineering Companies

(ACEC), 78% of respondents said there was a problem with

the overall quality of environmental documents.2 Common

problems cited included excessive length, disjointed orga ni-

zation, failure to reach conclusions, and poor writing.

In another study, the Council on Environmental Qual-

ity (CEQ) reported on NEPA’s achievements and problems

after a quarter century. e report found that “[w]hat is often

lacking in [environmental impact statements (EISs)] is not

raw data, but meaning—i.e., a comparison of the potential

impacts .. . expressed in clear, concise language. NEPA is

about ma king choices, not endlessly collecting raw data.”3

e report succinctly stated that “[m]ore rigor in the analysis

does not mean more weight in the document.”4 e 25-year

report also cited clear evidence of how environmental docu-

ments grow longer year by year.

Researchers at the University of Illinois studied how well

environmental documents improved laypeople’s understand-

ing of a project. e results, in the authors’ words, were

“atrocious”: on two measures of understanding, over 70% of

1. 42 U.S.C.A. §§4321-4370f, ELR S. NEPA §§2-209 (2009).

2. American Association of State Highway and Transportation Ocials (AAS-

HTO) and American Council of Engineering Companies (ACEC), Unpub-

lished Survey (2005) (on le with author).

3. C  E. Q, T N E P A:

A S  I E A T-F Y  ().

4. Id. at 29.

readers scored no better than chance.5 Higher reading ability

improved the results only slightly.6

It’s not just that NEPA practitioners are frustrated with

poorly written documents; there is a lso case law7 on the

subject. In Oregon Environmental Council v. Kunzman,8

the court found, “An EIS must translate technical data into

terms that render it an eective disclosure of the environ-

mental impacts of a proposed project to all of its intended

readership.”9 In Klamath-Siskiyou Wildlands v. BLM,10 the

U.S. Court of Appea ls for the Ninth Circuit found th at

“the documents are unacceptable if they are indecipher-

able to the public .”11 In a rather direct statement, t he court

in National Wildlife Federation v. Norton12 said “if the

Corps’ analysis really suggests that t he [project will have

the des cribed eect], the Corps needs to expl ain t hat con-

clusion in plain English.”13

So, there is a problem with the readability of environmen-

tal documents. e irony is that this is not what was intended

for NEPA. e basic regulations are replete with such direc-

tions a s EISs “shall be written in plain language and may

use appropriate graphics so that decisionmakers and the pub-

lic can readily understand them,”14 EISs “shall be analytic

rather than encyclopedic,”15 and EISs “shall be concise, clear,

and to the point.”16 ere is much more. Any casual read-

5. William C. Sullivan et al., Assessing the Impact of Environmental Impact State-

ments on Citizens, 16 E. I A R. 171, 171 (1996).

6. Id.

7. is Article cites several court ndings on NEPA that are important to under-

standing current practices. I am not an attorney, and this paper should not be

considered as legal review or analysis.

8. 614 F. Supp. 657, 15 ELR 20499 (D. Or. 1985).

9. Id. at 665.

10. 387 F.3d 989, 34 ELR 20127 (9th Cir. 2004).

11. Id. at 996.

12. 332 F. Supp. 2d 170 (D.D.C. 2004).

13. Id. at 183-84.

14. 40 C.F.R. §1502.8 (2008).

15. Id. §1502.2(a).

16. Id. §1500.2(b).