NEPA Nerd Dive – How many alternatives have to be discussed?

In last month’s blog article, I kept it light with an overview of Camp Pendleton Day, but this month I’m assuming the role of being a NEPA nerd by diving into an issue that comes up often with both Environmental Impact Statements (EISs) and Environmental Assessments (EAs): the number of action alternatives required to be analyzed.  What follows includes some case law citations which point to a pathway that can, optimally, help all of us, myself included, avoid being in court.

Under the National Environmental Policy Act (NEPA), federal agencies are required to evaluate the potential environmental impacts of a major federal action. NEPA requires that federal agencies consider a “reasonable range” of alternatives.  Note that the purpose (the specific objective of the agency’s proposed action) and the need ( the broader underlying agency need or legal requirement to which the agency is responding) largely determine what  constitutes a “reasonable range” of alternatives. Screening criteria further inform the range of potential alternatives. 40 Code of Federal Regulations (C.F.R.) Section 1502.13.

How many alternatives should be analyzed for an EIS or an EA?  Long story short: there is no specific requirement.  At a minimum, an agency must carry forward one action alternative and the no-action alternative. Typically, agencies are “more comfortable” carrying forward at least two action alternatives, if for no other reason than to appease their own counsel! But courts do not define a “numerical limit” on the number of alternatives that must be considered. Per the Council on Environmental Quality (CEQ) guidance, “what constitutes a reasonable range of alternatives depends on the nature of the proposal and the facts in each case.” See CEQ’s Forty Most Asked Questions, 1986.  In addition, a federal agency is not required to consider alternatives that are not significantly different from those considered or that have substantially similar consequences.  Bottomline, there should be at least two alternatives, the proposed alternative and the no-action alternative.

How do courts interpret the number of alternatives that should be analyzed for an EA?

The courts have recognized that EAs have more latitude in action alternative development as compared to EISs.   Carrying forward just one action alternative has been proven to be sufficient, when the agency makes it clear that other potential alternatives were considered, but then eliminated and explain why they were eliminated. “Although an agency must still give full and meaningful consideration to all reasonable alternatives in an environmental assessment, the agency’s obligation under NEPA to discuss alternatives is less than in an EIS.” Western Watersheds Project v. Abbey, 719 F.3d 1035, (9^th Cir. 2013).

Some courts have held that the obligation to consider alternatives in an EA to be less than that required for an EIS and consequently have allowed agencies to study a more limited range of alternatives. D. Mandelker, NEPA Law and Litigation, §§ 9:22 and 10:30 (2015).

Several courts have also held that considering only two alternatives (i.e., one action alternative and the no-action alternative) satisfies NEPA requirements.

• “In the [Agency’s] 2005 EA, the Agencies considered and briefly discussed two alternatives: the Project with the changes proposed in the 2005 EA, and the Project without the proposed changes (i.e., proceeding with the Project as previously described in the 1999 EIS)… [T]he changes to the Project proposed in the 2005 EA will not result in significant environmental effects that were not previously evaluated in the 1999 EIS. Under these circumstances, we hold that the Agencies fulfilled their obligations under NEPA’s alternatives provision when they considered and discussed only two alternatives in the 2005 EA. See Native Ecosystems, 428 F.3d at 1245–49 (holding that the agency complied with NEPA’s alternatives provision in preparing an EA where the agency considered only two alternatives—a no-action alternative and a preferred alternative); 40 C.F.R. § 1508.9(b) (requiring only a brief discussion of reasonable alternatives in an EA).” North Idaho Community Action Network v. U.S. Dept. of Transp., 545 F.3d 1147 (9^th 2008).
• In another case in the Ninth Circuit the Court held “to the extent that [plaintiff] is complaining that having only two final alternatives—no-action and a preferred alternative—violates the regulatory scheme, a plain reading of the regulations dooms that argument. So long as “all reasonable alternatives” have been considered and an appropriate explanation is provided as to why an alternative was eliminated, the regulatory requirement is satisfied. In short, the regulation does not impose a numerical floor on alternatives to be considered.” Native Ecosystems Council v. U.S. Forest Service, 428 F.3d 1233 (9^th 2005).
• To provide some diversification in courts, the U.S. Court of Appeals, District of Columbia Circuit, held that the Federal Aviation Administration (FAA), in approving a city’s plan to expand an airport, complied with NEPA in publishing an EIS that discussed in depth only the two alternatives of approving the expansion and not approving it; FAA was not required to discuss alternative locations in depth.” Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190 (D.C. Cir. 1991)

This does not put an artificial number on the number of alternatives required, but rather it requires the Agency (preparer) to think about what are the “Reasonable Alternatives.” Once that has been decided they must be presented and thoroughly developed in an environmental impact manner.  This is clearly the law as it relates to EISs.  When one is preparing an EA the same thought process should be applied, especially in 9^th Circuit states (i.e., Alaska, Arizona, California, Hawaii). It is easier to decide that only two alternatives are required in an EA, but the “Reasonable Alternative” look must still be made.

What should you consider when deciding whether to evaluate only two alternatives in an EA (the preferred alternative (proposed action) and a no-action alternative)?

• Evaluate whether the proposed project is anticipated to be high-risk or controversial and if so, confer with the federal agency’s counsel.
• Be sure to clearly define the purpose of the proposed action and the need for the action regardless of how many alternatives will be evaluated.
• Develop concise screening criteria that support a meaningful consideration for potential alternatives.
• When defining the “no-action” alternative, ensure that it is a sufficient “no-action” alternative.
• Provide an explanation of why an alternative was eliminated. For example, explain why the alternative does not support the purpose and need, does not fulfill one or more of the screening criterion, is not “ripe” for decision, or is not implementable, affordable or feasible.

Ultimately, analyzing a single action alternative in addition to the no-action alternative is an option that should be discussed with the federal agency’s counsel in light of whether the proposed project is anticipated to be high-risk or environmentally and/or publicly controversial.  If yes, then take a very hard look at what alternatives should be considered and fully developed.  This is true regardless of whether one is doing an EA or EIS. Spending time up front in your NEPA process to document the rationale for carrying forward just one action alternative can result in streamlined analysis and faster NEPA compliance if – a big if — you’ve been a good NEPA nerd and clearly demonstrated why potential action alternatives were not carried forward. And always, always get counsel’s input/buy-in early in the process!

For further inquiries about NEPA nerd stuff, contact me at melanie.hernandez@scoutenv.com or anyone at Scout Environmental where we make NEPA fun!