The Effect of NEPA Outside the Courtroom

• Date: 01 July 2009

7-2009 nEwS & anaLYSiS 39 ELR 10615

A R T I C L E S

The Effect of NEPA Outside

the Courtroom

by Michael B. Gerrard

Michael B. Gerrard is Professor of Professional Practice and Director of the Center for Climate Change Law at Columbia Law School.

He is Senior Counsel to Arnold & Porter LLP, where he was formerly managing partner of the New York oce. Among his books

is Global Climate Change and U.S. Law (ABA 2007). Katherine Regan, a J.D. candidate at Columbia, provided invaluable research

assistance. is is a revised transcription of the remarks Mr. Gerrard gave at the NEPA at 40 Conference on March 23, 2009.

The central purpose of the National Environmen-

tal Policy Act (NEPA)1 is not to produce gorgeous

or perfect documents; that’s a means to a n end. e

ultimate purpose is to improve governmental decisionmak-

ing by making relevant information available to ocials

and by ensuring that everyone aected by the decisions is

given a voice. I would like to focus on the eect of NEPA

on decisions.

I will discuss three issues.

First, I will talk about the eect that NEPA has had on

internal decisionmaking by agencies.

Second, since NEPA attempts to focus decisionmakers

on predictions of future environmental conditions with or

without proposed actions, and their various alternatives and

mitigation measures, it matters whether the predictions in

environmental impact statements (EISs) turn out to be accu-

rate; I’ll discuss that.

ird, the time and expense in preparing an EIS are so

great that it would be a real waste if this laboriously gathered

information could only be used once, and was not dissemi-

nated and could not be retrieved by future researchers. us,

I’ll get into the matter of whether old EISs fade away or have

continued life.

I. The Effect That NEPA Has Had on Internal

Decisionmaking by Agencies

I believe the greatest eect of EISs is on the people who write

them, not the people who read them. Not many upper-level

ocials actually read EISs, at least beyond the executive sum-

mary. Several courts have been asked to allow depositions of

ocials to ask if they actually read the EIS on which they

made a decision, but such questions have rarely if ever been

allowed. In fact, I suspect that those of us in this room are an

unduly large percentage of the people on the planet who are

entitled to membership in what might be called the world’s

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

dullest mile-high club—that is, the club of people who have

actually read so many EIS that, piled one on top of another,

they would be mile high.

ose of us who have participated in the preparation of

EISs have all obser ved and contributed to two mechanisms

that can rarely be seen from the outside but that I believe are

at the heart of the benecial impact of NEPA.

First, the near miss eect: the project team discovers spe-

cic permit requirements that would be applicable, and g-

ures out how to design around them. For example, it might

be learned early in the process t hat a project will require a

Clean Water Act (CWA) §4042 dredge and ll permit. When

no general permit is available, many applicants for conten-

tious projects feel that while entering t he §404 process may

not be suicidal, it is certainly masochistic. Likewise, the proj-

ect team may learn that par ts of t he site bear various desig-

nations under the Comprehensive Environmental Response,

Compensation and Liability Act (CERCLA)3; the Resource

Conservation a nd Recovery Act (RCRA)4; the Endangered

Species Act (ESA)5; the National Historic Preservation Act6;

or other laws. Early engagement by the applicant in the

NEPA proces s may discover problems w hile there is still

time to redesign or move the project in a w ay to avoid

these problems .

Second, the tourniquet eect: if you nd that there are just

one or two adverse impacts that can trigger an EIS, and it’s

possible to tie them o so they don’t happen, you can avoid

an EIS. at’s the mitigated nding of no signicant impact

(FONSI), which is one of the hallmarks of the modern NEPA

process. e mitigated FONSI is the shortcut that allows the

great bulk of projects to pass through without clogging up

the process—it’s to the environmental review system what

the plea bargain is to the criminal justice system. In fact, the

2. 33 U.S.C. §1344, ELR S. FWPCA §404.

3. 42 U.S.C. §§9601-9675, ELR S. CERCLA §§101-405.

4. 42 U.S.C. §§6901-6992k, ELR S. RCRA §§1001-11011.

5. 16 U.S.C. §§1531-1544, ELR S. ESA §§2-18.

6. 16 U.S.C. §§470 et seq.