THE ESSENTIALS OF NEPA

National Environmental Policy Act

The National Environmental Policy Act (NEPA), 42 U.S.C. 4321 et seq., is perhaps the shortest, and yet one of the most profound, of all the federal environmental statutes. This small act's purpose is to require all federal agencies to consider the environmental consequences of major federal actions; it is aimed at the federal government and not at individuals or the states.

NEPA directs that all federal agencies must include in all "major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on ... the environmental impact of the proposed project ...." 42 U.S.C. 4432(C)(i). This requirement is the genesis of what is commonly known as the environmental impact statement (EIS), and the cases that deal with whether a federal agency must prepare an EIS on a particular project are legion. The idea of NEPA was to require that certain procedural steps be taken by an agency prior to the initiation of any project to assure that the decision maker and the public would be apprized of the environmental consequences of the project. NEPA puts the environment on equal footing with other factors government officials must consider, such as economics, defense needs, etc.

The Supreme Court has held that NEPA is strictly procedural in nature, which means that NEPA requires only that an agency have a method for looking at the environmental consequences of any action. NEPA requires agencies to consider the environmental impacts of their decisions, but it does not mandate that the agency execute the most environmentally correct decision. NEPA requires an agency to take a hard look at environmental impacts, but that agency can still decide to take the most destructive course of action if it wants. There is no requirement in NEPA that the agency bias its decision in favor of protection of public health and the environment. See generally Robertson v. Methow Valley Citizens Council, 109 S.Ct. 1835 (1989), and Marsh v. Oregon Nat. Resources Council, 109 S.Ct. 1851 (1989).

NEPA and the regulations adopted thereunder by the Council on Environmental Quality (CEQ) are binding on all federal agencies, and the CEQ regulations require that on virtually every federal project an environmental assessment (EA) must be performed. The main purpose of the EA is to determine whether an EIS needs to be done. If, as a result of the EA, the agency finds that there is no "significant" environmental impact, then the agency issues a Finding Of No Significant Impact (FONSI) and continues on with the project without doing an EIS, which can often take years to do. The issue over what is "significant" has been heavily litigated, and if an agency issues a FONSI as the result of its EA, then they are guaranteed that any opponents to the project will argue that the FONSI was incorrect and that an EIS must be prepared prior to continuing. The other major issues in NEPA litigation are whether the particular action in question is "a major federal action" and whether the EIS or an EA is adequate in its coverage of the elements required by NEPA.

While NEPA is the primary statute limiting government action as regarding the environment, other statutes do place some substantive limits on the federal government as well. Some of these statutes are hybrids that both limit the government and regulate the public; these include the Endangered Species Act, the Wilderness Act, the National Forest Management Act, and many others.

Under the CEQ regulations, an agency is allowed to forgo NEPA review of a proposed project if the project meets certain requirements showing that the project is very small and is related to other small actions the agency has done before such that it would naturally know that the environmental impacts will be insignificant. This small project exception to preparing an EA is know as a "categorical exclusion." Examples of what meets the requirements of a categorical exclusion include very small volume timber cuts on national forests and requests to fill small wetlands that fall under a nationwide permit.

There are a lot of cases on NEPA, mostly because it applies to virtually every project the federal government is ever involved in. The standard of review the courts use under NEPA is very lenient and deferential tot he agency decision being reviewed. A court will reverse an agency's decision under NEPA only if the decision was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. It is not easy to win a case against a government agency on a claim that it violated NEPA, but it is possible, as even after 25 years of learning to meet NEPA requirements, federal agencies still try to cut corners often. This is understandable because an EIS may take one to two years to complete, so if an agency can get away with an EA that took just one to two months to prepare, they would rather do so.

NEPA and the CEQ regulations require an agency to identify and consider a number of things. The key things that must be identified and considered are reasonable alternatives to the proposed action, the direct impacts of each alternative (including the proposed one), the indirect impacts, and the cumulative impacts of the proposed action with other nearby or similar actions. To do all that, the agency must have site-specific data and information on which to base those considerations. It would be hard to identify and consider the impacts of a project if one knows nothing about the site of where the project will be. Often, agencies will cut corners here and use generic statements and information about timber cutting, for example, and then conclude that the proposed timber cutting will have no significant impacts. That is a violation of NEPA as the "hard look" the agency is supposed to give the proposal mandates that it know enough facts about the specific site where the project will occur to say whether or not it fits within the general knowledge about such activities.

Often, an agency will prepare a broad EIS to cover a number of smaller related projects; this is called a "programmatic EIS." Once that is completed, when ever the agency decides to do a specific project, it will do just and EA on that project and tie that EA into the overall EIS. This two-step NEPA analysis is used for things like mining permits over a large area and multi-year timber sale plans in national forests. Using the national forests, as an example, at the Forest Plan level, general programmatic analysis is done. When a project is proposed, site-specific analysis is required. Forest Plan analysis would contain general programmatic statements like, "clearcutting reduces visual quality and increases sediment in creeks." Site-specific analysis should have statements like, "this clearcut will impact the view from Talladega Mountain and increase the sediment load of Mump Creek by 5%."

The Ninth Circuit Court of Appeals has explained the relationship between programmatic and site-specific analysis. The court held:

"The critical inquiry . . . for a large scale, multi-step project is not whether the project's site specific impact should be evaluated in detail, but when such detailed evaluation should occur. . . . When a programmatic EIS has already been prepared, we have held that site-specific impacts need not be fully evaluated until a 'critical decision' has been made to act on site development. This threshold is reached when, as a practical matter, the agency proposes to make an irreversible and irretrievable commitment of the availability of resources to a project at a particular site."

California v. Block, 690 F.2d 753, 761 (9th Cir. 1983).

NEPA and the CEQ regulations also require public notice and an opportunity for comment in the NEPA process. The CEQ Regulations state:

"NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA."

40 C.F.R. 1500.1(b).

This element of public participation is essential to the whole NEPA process. It is how the public is informed of a proposal and its possible impacts and where the public can raise additional issues and concerns and can give new information to the agency. The various federal agencies have their own regulations on how they implement NEPA and the CEQ regulations and on how they handle public notice and comment.

Some agencies involve the public more than others. The Forest Service will give the public a chance to comment early on in the proposal and to raise issues that the agency itself did not think of. This is call "scoping." Once the Forest Service decides to go ahead with a proposal, they then prepare a draft EA and let the public comment on that. Once a decision is made, a final, revised EA is used to support it. The Army Corps of Engineers, on the other hand, gives the public notice and a chance to comment on a proposal to fill wetlands, but the agency does not let the public see the EA until after the final decision is made. It does not send out a "draft" EA. Arguably, the Forest Service is complying with the above CEQ regulation and the Corps is not, because that regulations does say that the public should have the necessary information about the environmental impacts before the decision is made.

Under NEPA, an EA or EIS is required to identify and consider cumulative effects:

"For each alternative, estimate the direct, indirect, and cumulative environmental effects, including the effectiveness of the mitigation measures, that would result from implementing each of the alternatives, including the no action alternative. Also, identify any additional mitigation measures that may be required, such as measures common to all alternatives."

1909.15 FSH 15.

Additionally, a FONSI cannot be issued without an analysis of cumulative effects.

The CEQ Regulations are clear that cumulative effects involve impacts from other projects, such as similar projects being proposed in the area.

The CEQ Regulations define "Cumulative impact" as:

"the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."

40 C.F.R. 1508.7.

The CEQ Regulations also required a consideration of indirect effects or impacts in any EA or EIS. The regulations state:

"'Effects' include: . . . (b) Indirect effects, which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable. Indirect effects may include growth inducing effects and other effects related to induced changes in the pattern of land use, population density or growth rate, and related effects on air and water and other natural systems, including ecosystems."

40 C.F.R. 1508.8.

The site-specific analysis needed to adequately assess direct, indirect and cumulative impacts is essential to a legal NEPA process. When agencies cut corners and used canned, "cookbook analysis in an EA or EIS, they fail to comply with NEPA. The court in Sierra Club v. Martin, No. 1:96-CV-926-FMH (N.D. Ga., Sept. 17, 1996), expressly condemned the type of "canned," "boiler-plate" language used in an EA done by the Forest Service:

"Finally, the Court notes the Defendant Forest Service's repeated use of 'canned language' time and time again in the BEs and the EAs. Notwithstanding the fact that different biologists and interdisciplinary teams prepared each BE and EA, they somehow always reach the same results about sensitive species and employ the exact same language in reaching said results. The similarity of the language employed in all of the BEs and EAs strikes the Court as illustrative of the lack of facts, evidence, and analysis that the BEs and EAs are supposed to represent.

"For example, all of the BEs and EAs contain the following statement regarding PETS species in the seven project areas: 'Cumulative effects from past, present, and reasonably foreseeable future actions will not adversely affect [these sensitive or endangered] species.' Notably, while the language is identical for all seven projects, none of the seven projects discusses any prior or reasonably foreseeable future actions. There is no baseline data, much less cumulative data, in the administrative record for these conclusions. Thus, even the omissions in the BEs and EAs for the seven timber projects are identical.

"The following language also appears in all seven BEs or EAs: 'The timber project area may impact only individual members of these species but is not likely to result in a trend to federal listing of any of these species under the Endangered Species Act, or a loss of viability on the forest.' While this opinion can be expressed in a number of ways, all the BEs and EAs use the same language. The same is true of the following language which appears in all the BEs and EAs: 'Potential habitat for [these species] may be present in the project area . . ., but they were not found during the survey. Therefore, the proposed project will not impact these species.' The uncanny way the language in each project's BE and EA mirror or parrot each other further undermines the conclusions they purport to support. As discussed above, the Court has no basis to determine whether the identical language in each project is based on any facts, evidence, or analysis the Court could find reasonable. Without adequate facts, evidence, or analysis in the administrative record for the agency's conclusions, a court would have no alternative but to set aside the Defendant Forest Service's actions as arbitrary and capricious, an abuse of discretion, and contrary to law."

One of the big issues in every case where the agency decides not to prepare an EIS is whether the impacts from the proposal are "significant" enough to require an EIS. The agency, of course, says that they are not. Members of the public want to show that they are. The courts look at the issue this way.

In National Audubon Soc. v. Hoffman, 917 F. Supp. 280 (D. Vt. 1995), the District Court there found that a timber sale covering 300 acres was obviously significant under NEPA and required an EIS. As that Court held:

"On its face, the proposed action, which includes clearcutting of over 300 acres and its admitted attendant effects such as intrusion into bear and neotropical bird habitats, is "significant" under any reasonable construction of the term. See 40 C.F.R. 1508.27(b)(1), (4) and (9); see also Wyoming Outdoor Coordinating Council v. Butz, 484 F.2d 1244, 1250 (10th Cir. 1973) ('The clearcutting of the timber planned obviously will have a significant effect on the environment for many years.')

"Nevertheless, the Forest Service relies on the fact that the administrative record demonstrates its consideration of the issues about which the plaintiffs complain. However, NEPA requires an agency to not only acknowledge these issues, but also to provide a statement of reasons which demonstrates that it took a 'hard look' at the relevant evidence. See Marsh, 490 U.S. at 374; Steamboaters v. F.E.R.C., 759 F.2d 1382, 1393 (9th Cir. 1985); Town of Orangetown, 718 F.2d at 35. The administrative record does not support a finding that the Forest Service took the requisite 'hard look' at all the plaintiffs' reasonable concerns."

The Court went on to hold:

"Furthermore, the EA and DN leave confusion as to the Forest Service's future logging and road building plans. See Seattle Audubon Society v. Moseley, 798 F. Supp. 1473, 1478-79 (W.D. Wash. 1992) ('An agency must candidly disclose in its EIS the risks posed by its proposed action.') (citation and quotations omitted), aff'd, 998 F.2d 699 (9th Cir. 1993). By its very nature, the Management Area designated as 3.1 requires continuous timber harvesting. See, e.g., Affidavit of Christopher E. Casey at para. 3. The EA describes the FR266 extension as a 'temporary intermittent use' road. See EA at 1, 5. Yet the Forest Service simultaneously maintains that the extension to FR266 will not be maintained after initial logging is completed in an anticipated 3-5 years.

"Overall, the Court finds Alternative E necessarily contemplates a long-term commitment to harvesting trees to keep certain areas thinned or cleared. Because the current plan establishes a precedent which will require an unclear amount of future tree removal activity, preparation of an EIS is appropriate. See 40 C.F.R. 1508.28(b)(6).

"In sum, inconsistencies in many of the defendants' assertions, and not disagreements with their conclusions, compel this Court to conclude the decision to issue a FONSI was arbitrary and capricious. Furthermore, a review of the administrative record discloses a failure to take the required 'hard look' at all the environmental consequences of Alternative E. Though lengthy, the EA does not adequately address all arguably significant effects of the Lamb Brook proposals. The cumulative effects on Lamb Brook's black bears and neotropical birds of the road extension, the proposed clearcutting, timber sales of uncertain duration, and the admitted but unquantified additional ATV use, require the Forest Service to prepare an EIS analyzing such effects. See Thomas v. Peterson, 753 F.2d 754, 757-59 (9th Cir. 1985) (action to enjoin construction of timber road in National Forest roadless area); see also Natural Resources Defense Council v. Callaway, 524 F.2d 79, 94 (2d Cir 1975) ('By failing to present a complete analysis and comparison of the possible dumping sites, the Final EIS fails to perform its vital task of exposing the reasoning and data of the agency proposing the action to scrutiny by the public and by other branches of government.') Accordingly, this Court finds the Forest Service has violated NEPA by failing to issue an EIS for the Lamb Brook project."

The lack of adequate site-specific information and of impacts analysis also cause problems for an agency in their issuance of a FONSI. As stated by the Fifth Circuit Court of Appeals:

"Simmans v. Grant, 370 F.Supp. 5, 17 (S.D. Tex.1974); cf. Vieux Carre Property Owners, 719 F.2d at 1281 ('The proper procedural vehicle for . . . a determination [not to prepare an EIS] is an environmental assessment which provides a reviewable record of the agency's basis for its conclusions.').

"While the administrative record supporting the Negative Declaration need not possess the same detail or clarity as an EIS and may, in part, be informal, mere perfunctory or conclusory language will not be deemed to constitute an adequate record and cannot serve to support the agency's decision not to prepare an EIS. Maryland-National Capital Park & Planning Commission v. United States Postal Service, 487 F.2d 1029, 1039 & 1040 (D.C. Cir.1973)."

Citizen Advocates for Responsible Expansion, Inc. v. Dole, 770 F. 2d 423 (5th Cir. 1985).In order to issue a FONSI, the agency must determine that the proposed action "will not have a significant impact on the human environment." 40 C.F.R. 1508.12. The proposed action cumulative impacts must be considered in this determination. 40 C.F.R. 1508.8. The CEQ regulations define "cumulative" impact as:

"The impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-federal) or person undertakes such actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time."

40 C.F.R. 1508.7. Thus, even if a proposed action will not itself have significant impacts on the environment, if combined with other similar insignificant action, they all will have significant impacts, an EIS must be prepared.

A good case demonstrating how NEPA is supposed to work and how an agency can be reversed for failing to comply with the statute is Protect Key West, Inc. v. Cheney, 795 F. Supp. 1552 (S.D. Fla. 1992). There the court found:

"The original EA prepared for the Peary Court Project consists of eight typewritten pages, exclusive of three area maps, with just over two pages devoted to 'Environmental Consequences.' Each of the potential environmental impacts addressed therein is dismissed in conclusory 'findings,' without further discussion or even citation. The FONSI itself simply restates the conclusions of the EA.

"....

"Carefully comparing the procedure followed by the Navy in preparing the EA on Peary Court with what is required by law, see id. at 682, leads to the inescapable conclusion that the September 1988 EA was wholly inadequate. Far from the requisite 'hard look,' the Navy barely took any look at the environmental consequences of the project in the EA. Because the EA does not evince a good faith effort to 'study and identify' relevant problems and alternatives, any analysis of whether the Navy 'convincingly' established the insignificance or planned mitigation of environmental harms would be pointless. There is no formal study, informal documentation, or even informal agency discussion referenced in the EA. Because the EA does not state that any other agency or organization was involved or consulted in its preparation, the Court concludes that this did not occur. As to each potential impact, the EA merely restates its own ultimate conclusion that no problems will result from any of the contemplated action. Alternatives are not specifically mentioned, but for a two-sentence dismissal of the option, 'Locate on Another Site.'"

795 F. Supp. at 1559-60.

The District of Columbia Circuit has established four useful criteria, which virtually all federal courts use, for reviewing an agency decision to forego preparation of an EIS: (1) whether the agency took a "hard look" at the problem; (2) whether the agency identified the relevant areas of environmental concern; (3) as to the problems studied and identified, whether the agency made a convincing case that the impact was insignificant; and (4) if there was impact of true significance, whether the agency convincingly established that the changes in the project sufficiently reduced it to a minimum." Cabinet Mountains Wilderness v. Peterson, 685 F. 2d 678, 682 (D.C. Cir.1982).

NEPA and the regulations promulgated thereunder provide for an agency to make a n honest effort at determining the environmental consequences of a planned action before the agency decides to do it. The National Environmental Policy Act of 1969 sets forth a "national policy which will encourage productive and enjoyable harmony between man and his environment [and] promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." 42 U.S.C. 4321.

The Eleventh Circuit Court of Appeals in Atlanta has recently explained the genesis and overall approach of the Act:

"Prior to the passage of [NEPA], environmental considerations were systematically underrepresented in the federal agency decision making process. Consistent with traditional notions of natural resource allocation, the benefits of development were overstressed and less environmentally damaging alternatives for meeting program objectives were often given limited consideration. NEPA declares a broad national commitment to protecting and promoting environmental quality. This commitment is implemented by focusing government and public attention on the environmental effects of proposed agency action; The Act ensures that important environmental consequences will not be 'overlooked or underestimated only to be discovered after resources have been committed or the die otherwise cast.' In short, NEPA requires that the evaluation of a project's environmental consequences take place early in the project's planning process."

North Buckhead Civic Ass'n v. Skinner, 903 F.2d 1533, 1539-40 (11th Cir. 1990).

NEPA does not set out substantive environmental standards, nor prescribe any regulatory program. Rather, the congressional mandate of 4321 is realized through a set of "action forcing" procedures that require an agency to take a "hard look" at environmental consequences. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 109 S.Ct. 1835, 1846, 104 L.Ed.2d 351 (1989); Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55 L.Ed.2d 460 (1978) (mandate to agencies under NEPA is "essentially procedural"). The procedural requirements derive from 42 U.S.C. 4332(2)(C)(i-iv), which directs all agencies of the federal government to prepare for "major Federal actions" a detailed statement on (1) the environmental impact of the proposed action; (ii) any unavoidable adverse environmental effects if a project is implemented; (iii) alternatives to the proposed action; (iv) the relationship between short-term uses of the environment and maintenance of long-term productivity; and (v) any irreversible and irretrievable commitments of resources involved in the project's implementation.

Pursuant to Executive Order, the Council on Environmental Quality was directed to promulgate regulations binding on all federal agencies for the implementation of NEPA. These regulations, promulgated in late 1978, codified and clarified much of the established procedure under the statute. The first step in the compliance process is the preparation of an "Environmental Assessment," defined in relevant part as "a concise public document ... which serves to: Briefly provide sufficient evidence and analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact[; and] Shall include brief discussions of the need for the proposal, of alternatives as required by [Sec. 4332(2)(E) ] of the environmental impacts of the proposed action and the alternatives, and a listing of agencies and persons consulted." 40 C.F.R. 1508.9.

Based on the EA, an agency decides whether to prepare an "Environmental Impact Statement." 40 C.F.R. 1501.4(c). An EIS is an exhaustive analysis of the impacts, proposed mitigation, and alternatives to the federal project, which has been circulated to other involved agencies, see 1502.19, subject to public comment and agency response, see 1503, reviewed by the CEQ in case of interagency disagreement, see 1504, and ultimately submitted to the President. The EIS, therefore, is the primary vehicle for compliance with NEPA where a project will have a significant impact on the environment. The EIS is the "action forcing" device envisioned by Congress to insure that NEPA's policies and goals are infused into federal decision-making. 40 C.F.R. 1502.1.

Therefore, the EA is a fundamental crossroads in the process. Based upon the EA's analysis and conclusions, an agency may issue a FONSI, thereby terminating the NEPA process, or proceed to the next phase by preparing an EIS. In effect, the EA and decision to issue a FONSI based thereon remove an agency from any further obligations under NEPA.

The court's inquiry is into whether an EIS contains a "reasonably thorough discussion of the significant aspects of the probable environmental consequences." Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992). A reviewing court must make a "pragmatic judgment whether the EIS' form, content, and preparation foster both informed decision making and informed public participation." Id. See also California v. Block, 690 F.2d 753, 761 (9th Cir. 1982). "Once satisfied that the agency has taken this procedural and substantive 'hard look' at environmental consequences in the EIS, the court's review is at an end." Animal Defense Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988), quoting Trout Unlimited, Inc. v. Morton, 509 F.2d 1276, 1283 (9th Cir. 1974).

The reviewing court is not free to impose its judgment on an agency, Havasupai Tribe v. United States, 52 F. Supp. 1471, 1490 (D. Ariz. 1990), nor "fly speck" an EIS and hold it insufficient on the basis of inconsequential, technical deficiencies. Oregon Environmental Council v. Kunzman, 817 F.2d 484, 492 (9th Cir. 1987). However, an EIS may be found inadequate under NEPA if it does not reasonably set forth sufficient information to enable the decision maker to consider the environmental factors and make a reasoned decision. Id. at 493.

As shown in the Protect Key West case, the courts will not let the agency use some post hoc rationalizations or material not in the administrative record to try and support the failings in an EA.

"The Navy prudently does not attempt to defend this action solely on the adequacy of the EA. Indeed, the Mayor of Key West, as amicus curiae testifying in favor of the construction of military housing on the site, noted: '[i]f all the Court had to look at was the original Environmental Assessment from 1988, the Court would have to find that the decision to reconstruct the military housing at Peary Court was arbitrary and capricious.' Prop.Fin.Ord. and Op. at 8.

"The Court finds that the 1988 EA prepared by the Navy fails to meet the requirements of NEPA.

"B. 'Cure' by Subsequent Documentation

"The Navy and amicus argue that the studies, surveys, and investigations conducted after the decision was made to proceed with the Peary Court project 'cure' any defects in the original EA. Defendants contend that these studies, taken together, satisfy the requirement for preparation of an EA, and support the 1988 Finding of No Significant Impact. Plaintiff responds that the subsequent studies, reports, analyses, performed after the fact, cannot and do not cure the defective EA. Plaintiff urges the Court to order the Defendants to prepare a full EIS, because the project will have a significant impact on the environment.

"....

"Against this statutory background, it is clear that the Navy's theory of 'cure' in this case would violate the letter and spirit of NEPA.

"The documentation offered in support of the EA's 'findings' was prepared after the EA and FONSI were issued. Indeed, Defendants' response to Plaintiff's interrogatories indicates that no written studies, analyses or reports on any environmental issue were prepared from the time the project was initially considered until the EA was issued in September 1988. Certain studies were conducted as the project went to bid; a traffic impact study was not conducted until October 1991, four months after this litigation was commenced. The record reflects that the analyses of environmental issues produced after the EA was issued are by-products of the myriad engineering and other technical studies conducted subsequent to the decision to build on the Peary Court site. The Navy argues that these studies support the agency's earlier finding of no significant impact.

"Accepting the Navy's argument would render the EA/FONSI process a mere formality. As in this case, an agency could issue a perfunctory EA (and FONSI based thereon), and proceed with a project unhindered by further NEPA requirements. If challenged, the agency could support its pro forma EA with whatever studies were produced in the course of implementing the proposal. Any remaining environmental problems could be resolved after the decision to go forward with the project was actually made.

"This result is not what Congress intended. The Act's effectiveness depends on involving environmental considerations in the initial decisionmaking process. See Robertson, 109 S.Ct. at 1845 (NEPA goals achieved during period when agency is 'contemplating a major action'); see also 40 C.F.R. Sec. 1501.2 ('Agencies shall integrate the NEPA process with other planning at the earliest possible time to insure that planning and decisions reflect environmental values, to avoid delays ..., and to head off potential conflicts'); 40 C.F.R. Sec. 1500.1 ('NEPA procedures must insure that environmental information is available to public officials before decisions are made and before actions are taken'). In the NEPA context, post hoc compliance by definition does not accord with the congressional mandate. See Sierra Club v. Lujan, 716 F. Supp. 1289 (D.Ariz.1989); Cady v. Morton, 527 F.2d 786, 794 (9th Cir.1975).

"The Court is not unaware of the onerous burden that this law places on an agency desiring to move forward efficiently and expeditiously. The law must nonetheless be followed.

"The Navy has failed to demonstrate evidence of NEPA compliance before committing to the Peary Court project."

795 F. Supp. at 1560-62.

Under NEPA, an EA or EIS must include a review of the environmental impacts from all reasonable alternatives. It is the duty of the agency to develop and analyze the alternatives to the proposed action. The agency does not have to look at every conceivable alternative, only those reasonable ones that will meet the same goals and objectives of the proposed one. Also, the existence of a reasonable, but unexamined, alternative that is sufficiently similar to another alternative that the agency did analyze will not void the agency's NEPA analysis. However, the existence of only one reasonable alternative that the agency failed to look at will void the agency's decision.

Again, using the Forest Service as an example, as there are many NEPA cases involving that agency, in cases where a timber sale EA's range of alternatives have been upheld, the Forest Service had identified four or five alternatives which included more consideration of old growth. Or for full-blown EISes, as many as 17 alternatives have been used. See Resources Limited v. Robertson, 8 F. 3d 1394 (9th Cir. 1993); there the court stated:

"The Forest Service is charged to 'rigorously explore and objectively evaluate all reasonable alternatives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.' 40 C.F.R. 1502.14(a). See also 36 C.F.R. 219.12(f)(1) ('Alternatives shall be distributed between the minimum resource potential and the maximum resource potential to reflect to the extent practicable the full range of major commodity and environmental resource uses and values that could be produced from the forest. Alternatives shall reflect a range of resource outputs and expenditure levels.').

"The 'existence of a viable but unexamined alternative renders an environmental impact statement inadequate.' Mumma, 956 F. 2d at 1519 (citation omitted). An agency's consideration of alternatives is adequate 'if it considers an appropriate range of alternatives, even if it does not consider every available alternative.' Headwaters, Inc. v. Bureau of Land Management, 914 F. 2d 1174, 1180-81 (9th Cir. 1990).

"Resources Limited contends that the Forest Service did not consider an adequate range of timber harvest alternatives, because the Forest Service failed to consider timber harvest levels that were substantially lower than existing harvest levels. Resources Limited suggests that, in computer modeling the different alternatives, the Forest Service skewed the model's calculations by imposing a parameter that the harvest level remain at or near current levels.

"'The Forest Service [i]s entitled to identify some parameters and criteria -- related to Plan standards -- for generating alternatives to which it would devote serious consideration. Without such criteria, an agency could generate countless alternatives.' Mumma, 956 F. 2d at 1522. Here the Forest Service did not, as in California v. Block, 690 F. 2d 753, 767 (9th Cir. 1982), 'consider only those alternatives with [the same] end result.' Of the 17 alternatives considered, five were based on timber harvest levels more than 18 percent lower than existing levels. One alternative was based on a projected average ASQ of 51 mmbf/year.'"

In California v. Block, 690 F.2d 753 (9th Cir. 1982), the Forest Service considered only those alternatives with basically the same end result, and the court struck down the agency's decision. Unlike in Resources Limited, the Forest Service did not consider a broad range of alternatives with differing results; arguably, the Forest Service did not consider a "range" of alternatives at all. As stated in Idaho Conservation League v. Mumma, 956 F. 2d 1508 (9th Cir. 1992), the existence of a viable but unexamined alternative renders an environmental impact analysis inadequate. The Ninth Circuit stated:

"Direct implementation of the LRMP occurs at a second stage, when individual site-specific projects are proposed and assessed. The Forest Supervisor must ensure that all projects are consistent with the plan. 16 U.S.C. 1604(I); 36 C.F.R. 219.11(e). Further NEPA analysis is conducted to evaluate the effects of the specific project and contemplate a range of alternative actions, including a 'no action' alternative. 40 C.F.R. 1502.14(d), 1508.9(b). See generally Citizens for Environmental Quality v. United States, 731 F. Supp. 970, 977 (D.C. Colo. 1989).

"The alternative section is 'the heart of the environmental impact statement,' 40 C.F.R. 1502.14; hence, '[t]he existence of a viable but unexamined alternative renders an environmental impact statement inadequate.' Citizens for a Better Henderson v. Hodel, 768 F. 2d 1051, 1057 (9th Cir. 1985). While the practicalities of the requirement are difficult to define, NEPA provides that all agencies of the Federal Government shall, to the fullest extent possible, '[s]tudy, develop, and describe appropriate alternatives to recommended courses of action in any proposal which involves unresolved conflicts concerning alternative uses of available resources.' 42 U.S.C. 4332(2)(E). Whether a particular EIS has met this demand can best be determined by its purpose, which is to 'ensure[] that federal agencies have sufficiently detailed information to decide whether to proceed with an action in light of potential environmental consequences, and [to] provide[] the public with information on the environmental impact of a proposed action and encourage[] public participation in the development of that information.' Kunzman, 817 F. 2d at 492; see also Citizens for a Better Henderson, 768 F. 2d at 1056.

"As a result an agency must look at every reasonable alternative, with the range dictated by the 'nature and scope of the proposed action,' Block, 690 F.2d at 761, and 'sufficient to permit a reasoned choice.' Methow Valley Citizens Council v. Regional Forester, 833 F. 2d 810, 815 (9th Cir. 1987), rev'd on other grounds sub nom. Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)."

A particularly instructive case is Friends of the Bitterroot, Inc. v. U.S. Forest Serv., No. CV-90-76-BU, 25 E.L.R. 21186 (D. Mt. 1994). There, even though the Forest Service identified and considered seven alternatives, the court held that the Forest Service failed to comply with NEPA because the agency failed to consider just one additional reasonable alternative, namely an alternative to protect roadless areas. The agency claimed that such an alternative would not further the purposes of the proposed action, but the court disagreed. The court held:

"In Count II of their complaint, as amended, plaintiffs contend the Trail Creek EIS fails to adequately analyze all reasonable alternatives, including a less environmentally damaging alternative that would exclude logging and road building activity in existing roadless areas within the Beaverhead National Forest. Plaintiffs maintain the EIS should have addressed an alternative exempting the Beaver Lakes roadless area from the timber sale in order to preserve that area's value as secure wildlife habitat. In response, defendants assert the alternative would not have met the management goals, standards, and objectives of the Beaverhead National Forest Plan. Defendants further maintain the development of such an alternative would not have added any new information to the EIS.

"NEPA requires an EIS provide information in detail and consider every reasonable alternative to a proposed action. Citizens for a Better Henderson, supra, 768 F.2d at 1057; see 42 U.S.C. 4332(2)(c)(iii). An agency's range of alternatives is reviewed under a 'rule of reason' standard that 'requires an agency to set forth only those alternatives necessary to permit a reasoned choice.' California v. Block, 690 F.2d 753, 767 (9th Cir. 1982) ('The touchstone for [a court's] inquiry is whether an EIS' selection and discussion of alternatives fosters informed decisionmaking and informed public participation.'). Additionally, NEPA does not require a separate analysis of alternatives which are not significantly distinguishable from alternatives actually considered or which have substantially similar consequences. Northern Plains Resource Council v. Lujan, 874 F.2d 661, 666 (9th Cir. 1989). As a result, an agency's consideration of alternatives is sufficient if it examines an appropriate range of alternatives, even if it does not consider every available alternative. Headwaters, Inc. v. Bureau of Land Management, 914 F.2d 1174, 1181 (9th Cir. 1990).

"In the case sub judice, the Forest Service examined seven alternate courses of action with respect to the Trail Creek project: six 'action' alternatives (Alternatives B, C, D, E, F, and G) and one 'no action' alternative (Alternative A). The 'action' alternatives proposed timber harvesting in varying locations, amounts, and methods in the Trail Creek area. Moreover, the action alternatives all called for varying degrees of timber harvesting in the Beaver Lakes roadless area.

"Defendants maintain the plaintiffs' preferred alternative 'would not have met the management goals, standards, and objectives defined in the Beaverhead National Forest by the Beaverhead Forest Plan.' Specifically, defendants maintain that 'because the management decisions to harvest timber in those areas have already been made at the Forest Plan level it did not need to be revisited.'

"The fact the Beaverhead Forest Plan designates certain land as suitable for timber management does not, however, obligate the Forest Service to proceed with the timber harvesting, nor does it preclude the Forest Service from exercising its discretion to consider other courses of action. Accordingly, to the extent defendants maintain an alternative aimed at preserving the Beaver Lakes roadless area would be 'pointless,' based upon the goals of the Beaverhead Forest Plan, the court concludes defendants' summary judgment motion is not well taken. Defendants' position is contrary to NEPA's underlying tenet, i.e., that agencies consider all reasonable alternatives so as to ensure an EIS fosters informed decision making. See Idaho Conservation League v. Mumma, supra, 956 F.2d at 1519-20.

"The Forest Service cannot deny there is some benefit to be derived from considering an alternative that preserves the Beaver Lakes roadless area. Plaintiffs, as well as the Montana Department of Fish, Wildlife & Parks, whose considerable expertise in the area of wildlife management is undisputed, expressed concerns that preservation of the Beaver Lakes roadless area warranted full consideration in the Trail Creek NEPA process given the area's high security value for wildlife. Moreover, plaintiffs have alleged the roadless areas provide wildlife corridors essential for maintaining the biological diversity in the Northern Rocky Mountains.

"Given the contentious and long-standing debate in the State of Montana regarding the preservation of roadless lands and wilderness designation, the court concurs with plaintiffs' assertion that the NEPA process would have been properly serviced by development of an action alternative that preserved roadless lands in the Trail Creek area. Such an alternative would have afforded the opportunity for scientific and public participation and debate regarding the delicate balance between preserving natural resources and timber management.

"Accordingly, the EIS' failure to address an alternative preserving existing roadless lands in the Trail Creek area renders compels this court to REMAND this matter for further administrative proceedings."