In a carefully argued and insightful article in the inaugural edition of the Michigan Journal of Environmental and Administrative Law in 2012, Villanova’s Professor Todd Aagaard argued that NEPA’s approach to risk and risk analysis has been ad hoc and hindered as a result. Aagaard argued that
[c]urrent NEPA law adopts a largely ad hoc approach that lacks coherence and analytical rigor. Some environmentalists and legal scholars have called for a greater emphasis on worst-case analysis in environmental planning, especially after the recent Deepwater Horizon oil spill . . . and the meltdowns at Fukushima Daiichi nuclear reactors in Japan, both of which involved the eventuation of risks dismissed ex ante as improbable.
Aagaard went on to sketch—ever so tentatively—the outlines of the “functionalist” approach he advocates. In brief, he advocates against re-instituting the so-called ‘worst case’ analysis requirement and in favor of a risk-centered approach that targets uncertainty and high-value disclosures.
[W]hen a risk or uncertainty is important to an agency’s decision—such as when a significant outcome is very sensitive to an uncertain variable—it should be discussed in the agency’s evaluation of the impacts and alternatives, not buried in the agency’s methodological description. . . . [O]ne can hope that requiring agencies to consider environmental risks and uncertainties will . . . increase the relevance of the discussion of risks and uncertainties.
Id. at 122. Put slightly differently, in forecasting environmental possibilities, agencies must assign probability values to the loss/harm scenarios they consider and their doing so often entails complex judgments. One of the strengths of the piece is that Aagaard draws attention to the fact that a risk-oriented approach, while superior to the status quo at many agencies, necessarily involves balancing many factors to determine the contents of an appropriate impact analysis and that bright line rules are often counterproductive. The remote but catastrophic possibilities that once found their way into NEPA documents through a long-abrogated CEQ rule known as the ‘worst case’ requirement have since been replaced by bureau-speak expertly papering over the fact that unprecedented harms do occur, sometimes with alarming regularity. How to achieve the necessary analytical rigor without imposing some kind of norms ex ante? The “ad hoc” approach the courts and action agencies have long tolerated stems from exactly that: a lack of needed structure and normative guidance on methods.
Here is where the piece reverts to some older work on NEPA’s overall structure and efficacy (in the estimates of prior researchers) and loses some of its steam. A “functional” approach to risk has a nasty way of not looking like much of an “approach” at all. While Aagaard seems convinced that the burden falls on CEQ, he seems less convinced of what CEQ can or ought to do in that regard.