The Prima Facie Burden and the Vanishing SEPA Threshold: Washington's Emerging Preference for Efficiency over Accuracy

Abstract:     
The purpose of the Washington State Environmental Policy Act (“SEPA”) is simple: governmental action should be environmentally informed. This simple goal stands in contrast to a history of development permitting, legislative proposals, and other governmental actions that are memorable for their lack of foresight in decisions involving environmental impacts. To prevent the continuation of such practices, SEPA requires agencies to prepare “a detailed statement” that ensures decision makers have “sufficient information to make a reasoned decision.”

Although the informational goals of SEPA culminate in the environmental impact statement (EIS), the heart of environmental decision making lies in the precursor to the EIS, known as the threshold environmental determination. The threshold determination requires the acting agency to determine whether, based on context and intensity, the impacts of a particular proposal warrant the in-depth analysis typical of an EIS. Accordingly, the threshold determination must be based on a minimally adequate record of information. On the other hand, the threshold determination process embodies agency efficiency by recognizing that not all projects require the expensive and detailed preparation of an EIS. The process limits review to the probable, but not speculative, environmental impacts, and provides judicial deference for the agency's threshold determination.

Despite the simplicity and common sense underlying SEPA, a breakdown between SEPA's goals and duties has appeared at the threshold stage in the environmental review process. In the first thirty years of SEPA litigation, the legislature, courts, regulatory agencies, developers, and even the concerned public have troubled the SEPA landscape by confusing this otherwise simple procedural scheme. In the resulting complex system of burdens and presumptions, the simplicity of SEPA has become lost in the law, and in the process, the informational purposes of SEPA have given way to agency efficiency.

Number of Pages in PDF File: 47

Keywords: SEPA, EIS, environment

Accepted Paper Series