Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance
Bradley C. Karkkainen
University of Minnesota Law School
November 29, 2001
Columbia Law Review, Vol. 102, Spring 2002
The National Environmental Policy Act (NEPA) seeks to improve environmental outcomes by forcing agencies to identify and confront the environmental consequences of their actions, and by opening governmental decisions to public scrutiny. Although NEPA brought important changes to the way government does business, agencies have subsequently adopted a strategy of avoiding NEPA's burdensome information production requirements whenever possible. Because NEPA demands comprehensive, synoptic rationality in the form of an exhaustive, one-time-only set of ex ante predictions of expected environmental impacts (the environmental impact statement, or "EIS"), it places extreme demands on agency resources, generates encyclopedic compilations more notable for their bulk than for their quality, and typically produces a work product too late to influence the agency's course of action. Agencies therefore have strong incentives to avoid producing environmental impact statements by making Findings of No Significant Impact ("FONSIs"), often accompanied by mitigation measures designed to reduce environmental impacts below reportable thresholds ("mitigated FONSIs"). FONSIs and mitigated FONSIs now represent the lion's share of the NEPA compliance effort, with EISs confined to a small and declining share of federal agency actions - the exception and not the norm in NEPA practice.
Some critics see this avoidance strategy as violating NEPA's spirit if not its letter. In contrast, this Article argues that mitigated FONSIs may produce environmentally beneficial outcomes - albeit through an unintended and largely invisible backdoor mechanism that indirectly accomplishes NEPA's objective of forcing agency managers to consider environmental impacts at the early stages of project design. In this de facto scheme, the EIS functions not as the principal generator of information, but as a penalty default requirement - the costly price an agency must pay if it fails to keep expected environmental impacts below the threshold requiring EIS production. Yet because NEPA does not require follow-up monitoring or verification of predicted impacts, we can have little assurance that the predictions upon which EISs, FONSIs or mitigated FONSIs are predicated are accurate. The Article proposes to retool NEPA to require follow-up monitoring, adaptive mitigation, and an environmental management systems-oriented approach. By shifting the focus of information production from the uncertain and speculative realm of comprehensive ex ante prediction to the pragmatic empiricism of monitoring, measurement, and verification, these tools would enable systematic error detection and correction, early identification of unforeseen circumstances, and better-informed environmental management over the life of the program or project. These proposals are consistent with broader trends in private and public sector environmental management, where systematic monitoring, continuous information feedback, and adaptive decision-making are emerging as the core tools in integrated, dynamic, and responsive environmental management systems.
Date posted: January 7, 2002
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