Academic journal article Texas Law Review

Bottlenecks and Baselines: Tackling Information Deficits in Environmental Regulation

Academic journal article Texas Law Review

Bottlenecks and Baselines: Tackling Information Deficits in Environmental Regulation

Article excerpt

The first generation of statutory and regulatory environmental law in this country naively assumed that information would be abundant and cheap to acquire. Nowhere is this assumption clearer, perhaps, than in the National Environmental Policy Act1 (NEPA), the statute that signaled the onset of the "environmental decade" of the 1970s.2

NEPA famously requires federal agencies, prior to undertaking any action that "significantly affects" environmental quality, to produce and publicly disclose a "detailed statement" of the environmental impacts of the proposed action, evaluating it side-by-side with a range of alternatives.3 This open-ended information requirement, reflecting a mid-twentieth century faith in "comprehensive bureaucratic rationality,"4 places enormous demands on agency resources.5 A full-scale environmental impact statement (EIS) typically is hundreds or even thousands of pages in length, and takes millions of dollars and months, if not years, to complete.6 Even when completed, however, the informational value of an EIS may be dubious.7 Litigationaverse agency officials, loath to be sued for failure to consider relevant information, are inclined to cram an EIS full of every scrap of data and analysis available, regardless of quality, resulting in bloated, indiscriminate documents.8

Moreover, the principal conclusions in an EIS are typically predictive judgments. Since NEPA does not require follow-up monitoring or verification, in most cases we will never know if an EIS was correct.9 The few follow-up empirical studies that have been done are not encouraging: they suggest that many predictive judgments in EISs are framed too imprecisely to be empirically tested, and where subsequent monitoring does allow verification of more precise predictions, the principal conclusions are wrong even about the direction of environmental change in a disturbingly large percentage of cases, and wrong about its magnitude in a large part of the rest.10

The situation, however, is not entirely bleak. Facing the costs and delays associated with EIS production, agency officials have taken matters into their own hands. In the vast majority of cases, agencies now employ a simplified, streamlined analytical device known as an environmental assessment (EA), typically leading to a finding of no significant impact (FONSI).11 Because NEPA requires a full EIS only when the environmental impacts of the proposed action are judged to be "significant," agencies now endeavor to design programs and projects in such a way that they can plausibly be characterized as falling below that threshold.12 Alternatively, agencies can add on just enough mitigation measures to plausibly push the environmental impact of their programs below the EIS-triggering "significant" level-a gambit known as the "mitigated FONSI."13 While critics contend these stratagems amount to a massive subversion of the NEPA regime,14 the case can be made that they are in fact salutary developments. Through the indirect and unintended backdoor route of EAs, FONSIs, and mitigated FONSIs, NEPA is arguably prompting agencies to design and implement environmentally benign projects, programs, and mitigation measures in a manner that avoids the statute's most onerous paperwork requirements.15 Indeed, it is tempting to conclude that whenever the costs of minimizing or mitigating adverse environmental impacts fall below the costs of EIS production, rational agency managers will elect to minimize or mitigate the impacts. Thus, whatever we sacrifice in information disclosure, we more than make up for in environmental benefits.

Yet this analysis is too facile. Once again, our confidence is tested by NEPA's failure to require follow-up monitoring.16 At the end of the day, we have little more than the agency's written assurance in the EA and FONSI that, as so designed or mitigated, the program or project will not produce significant environmental impacts. The agency's predictions, however, may be predicated upon faulty or incomplete baseline data, incomplete or inconclusive science, or simple misjudgments about the direction and magnitude of change in complex, nonlinear, dynamic, and interdependent ecological settings. …

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