The influence of incomplete or unavailable information on environmental impact assessment in the USA

Abstract

One of the more common activities of environmental scientists in the United States is the preparation of environmental assessments or environmental impact statements in response to the mandates of the National Environmental Policy Act. The central thesis of this paper revolves around a frequent dilemma those scientists face: how to proceed with the environmental impact analysis when information on potential impacts is incomplete or unavailable. The paper examines how the “hard look” standard that U.S. courts have imposed upon agencies considering proposed actions came about. Further, U.S. courts have said agencies cannot make arbitrary and capricious decisions when deciding to build a project, implement a plan, issue a permit or other give other approvals, and this paper discusses how the courts have defined what arbitrary and capricious decision are, especially when decisions are made when information about impacts is incomplete or unavailable. The paper examines why agencies win or lose lawsuits filed against the environmental assessments or environmental impact statements they write, focusing on those cases that have occurred after the Supreme Court ruled on the issue in 1989. The paper suggests recommendations to environmental scientists faced with incomplete or unavailable information when preparing an environmental assessment or environmental impact statement in the U.S.

Introduction

Environmental knowledge and information is and will always be incomplete, particularly with infinitely complex ecosystems considered at various scales. Impact analysis, by its very nature, is predictive and requires a look out into the future. Jack Ward Thomas, former Chief of the U.S. Forest Service, has been quoted as saying that ecosystem management is not only bigger than we think but “bigger than we can think” (U.S. Department of Agriculture, 2003). Further, many environmental components that are analyzed, such as species, habitats, economies, and human use, interact in ways that elude definition by even the most complex models. Indeed, issues such as species viability, sustainability, resiliency and interactions between ecosystems and economies remain clouded with uncertainty and risk.

The precautionary principle suggests that where you lack a good understanding of what the impacts might be, perhaps because of incomplete or unavailable information, then greater care must be taken to alleviate the risk attributable to this incomplete knowledge. Even so, the requirements of the National Environmental Policy Act (NEPA) and the Council on Environmental Quality (CEQ) regulations compel Federal agencies in the United States to consider the environmental consequences of implementing myriad actions in the future. Further, the public demands such an accounting and the U.S. system of courts direct agencies take a “hard look” at those impacts within the decision-making process.

NEPA became effective on January 1st, 1970 and required all federal agencies in the U.S. to take a careful consideration of the potential environmental impacts of projects, plans, policies or programs that they were considering (e.g. building a new post office), or of private or state projects that required a federal permit (e.g. the filling of a wetland). To assure that the environmental impacts were in fact considered, agencies are required to write Environmental Impact Statements to disclose the impacts to the public or other interested stakeholders, or Environmental Assessments that showed that there would not be significant environmental impacts. It is these EISs or EAs that become the basis for litigation when a plaintiff alleges that some facet of NEPA has been violated. This paper examines the “hard look” in NEPA law and litigation, especially when an agency is confronted with missing, incomplete or unavailable information, and presents a strategy to pursue when faced with this situation.