The “Full and Fair” Discussion of Impacts Includes a Realistic Assessment of Future Compliance

Impact assessments often must estimate how future regulations will evolve. That's hard to predict.

As student work, the recent Yale Law Journal note “A ‘Full and Fair’ Discussion of Environmental Impacts in NEPA EISs: The Case for Addressing the Impact of Substantive Regulatory Regimes” by Sarah Langberg is exemplary.  The piece examines a niggling little issue that has received far too little attention in NEPA practice with the methodical and studious methods that the best student work employs.  But it is more than just exemplary student work.  The piece makes some solid reform proposals, a rarity among all law review literature.

The issue is this: how should NEPA impact statements account for some project or proposal’s likely future impacts when the project/proposal will be governed by some yet-to-be-determined permit pursuant to another (more “substantive”) environmental statute?  The major media statutes—Clean Air Act, Clean Water Act, etc.—all provide for detailed, searching permitting reviews of many projects that often include unique terms and conditions.  State and local laws often do the same.  In other words, controls that are particular to that permitee have yet to be derived at the time the EIS is prepared, published, and commented upon.  And the permitting reviews often won’t be complete until years after the NEPA impact statement in connection with the project/proposal is done.

Should the EIS preparers default to the media statutes’ flowery purpose statements and say “this project will only be permitted if it doesn’t jeopardize our continued pursuit of perfectly clean air”{?}  That would seem preposterous to anyone who’s witnessed these permits in action.  Yet, as Langberg argues from a wealth of EIS reviews and litigation reports, that is often precisely what goes into the EIS.  And that seems, well, to make a mockery of the real functions of an EIS.  (At least one decision, League of Wilderness Defenders v. U.S. Forest Serv., 883 F. Supp.2d 979 (D. Or. 2012), has allowed almost that exact solution over plaintiffs’ pitched objections.)

Deferring real estimates of what compliance standards will do to control a project’s environmental costs deprives the NEPA public of a genuine deliberative process of the kind § 102(2) promises.  So what about this alternative:

EISs should examine all major environmental impacts from a project, including those that proponents anticipate will be shaped by another agency’s regulatory regime . . . [and] detail comprehensively in their EISs how [the project] will comply with future legal requirements necessary for project completion. . . .

Langberg, 124 Yale L.J. at 737.

The troubles with this proposal are at least three: (1) it’s often very hard to predict how a regulatory permitting will proceed and conclude; (2) information in EISs tends to be both expensive and over-abundant, leading to a paradox in these statements’ overall utility; and (3) courts may interpret an agency’s preliminary estimation of some project/proposal’s regulatory position to “bind” that agency, thereby discouraging them from even offering any such preliminary estimate in the first place.

The reform proposal calls for “reasonable forecasting,” as is generally the norm in NEPA.  Langberg is careful to address the troubles with sharp counter-arguments like the following:

Asking agencies to take on more in-depth analysis in their EISs may exacerbate the cost problem, but this worry can and should be overcome by looking to the practical implementation . . . and the potential synergies that can result from such an expanded discussion [at the EIS stage]. In practice, proponents must explain how they plan to comply with substantive regulations at some point in the planning process: either at the EIS stage . . . or in later piecemeal permit applications after selecting a project plan, as is current practice.  Given this, any increased costs that proponents may face at the EIS drafting stage . . . should not exceed the cumulative costs that proponents would otherwise incur while shepherding the project through to completion. . . .

Id. at 752.

One trouble with her suggested reforms which Langberg does not anticipate is NEPA’s unanswered but all important question: who administers it?  Which institution should respond here?  Should reviewing courts call this “reasonable forecasting” a requirement of § 102(2)(C)?  If so, it would have to fall within the “rule of reason” courts say they apply in such circumstances and Langberg’s suggested reforms would have reviewing courts demand much of agencies not before them in litigation that environmental groups take on (or don’t) for their own reasons.  Should CEQ?  To do so in one of its now-ubiquitous “guidance” memos, CEQ would have to have precedents to call attention to and be able to say with a straight face that those precedents are the best interpretation of NEPA and CEQ’s 1978 regulations.  That might be tricky with the courts as divided on this issue as they’ve been.  And if EPA is the most responsible party here—given its obligation under Clean Air Act § 309 to comment on most draft EISs—then the strategic concerns seem to arise quite directly.  EPA often deals with permitees in tense relationships that make EPA personnel wary of offering anything that could be used against the agency later.  {The Note also erroneously says that “Congress passed NEPA in 1978,” id. at 723 n.34, a mistake that Yale Law Journal editors (if not the author) should’ve caught.}

Overall, though, this is a Note worth noting.  And Langberg seems like a professional from whom great things will come.  Reasonable forecasting has lots of improvements to make.  This is certainly one of them.

I teach environmental, natural resources, and administrative law at Penn State Law. Before teaching I was an enforcement lawyer at U.S. EPA. Along the way I've done work for environmental nonprofits and written a fair bit about NEPA.
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