The Statement of Purpose and Need

Tucked within every completed environmental impact statement (EIS) and most environmental assessments (EAs) is a critical element: the agency’s statement of the “purpose and need” of/for the impending “action.”  The 1978 CEQ rules state that every EIS “briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.” 40 C.F.R. § 1502.13

This makes a lot of sense. As a duty to “stop and think” or “look before you leap,” NEPA is well served by a requirement that the agency examine its own “motives” or underlying reasons for believing that some “action” is needed.  The alternatives lined up will all, to greater or lesser degree, answer the purpose & need statement as a matter of means/ends rationality. And it is always possible that when an agency actually considers its underlying motives it will radically rethink what it is doing (although in my experience electoral turnover has more to do with those moments than NEPA does).

A Judicial Gloss

Courts have been wise to the purpose & need statement and how it can be manipulated to make the selected alternative appear like the only rational choice.  See, e.g., City of Alexandria  v. Slater, 198 F.3d 862 (D.C. Cir. 1999).  They generally tend to apply a “reasonableness” standard, which is to say they generally tend to be deferential unless the agency’s statement and/or judgment is so inexplicable as to suggest dishonesty or some unstated motives lurking in the shadows.  See, e.g., Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991).  As one court put the matter, in drafting a P&N statement, the agency

must answer three questions . . . .  First, what is the purpose of the proposed project? Second, given that purpose, what are the reasonable alternatives to the project? And third, to what extent should the agency explore each particular alternative?

Habitat Education Ctr. Inc., v. U.S. Forest Serv., 593 F. Supp.2d 1019, 1026-27 (E.D. Wisc. 2009).  Of course, this tends to angle the judicial inquiry into the adequacy of a P&N statement on project-level analysis and, thus, perhaps away from the more “programmatic” analyses agencies might prepare.

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