A review of recent NEPA alternatives analysis case law

Abstract

According to the Council on Environmental Quality (CEQ) Regulations for implementing the National Environmental Policy Act (NEPA), the analysis and comparison of alternatives is considered the “heart” of the NEPA process. Although over 20 years have passed since the original mandate appeared to construct and assess a “reasonable range” of alternatives contained in the CEQ Regulations, there is a perception that there is still a significant amount of confusion about what exactly constitutes a legally-compliant alternatives analysis. One manifestation of this confusion is the increasing amount of litigation over the alternatives analysis in NEPA documents. This study examined decisions on challenges to alternative analyses contained in federal agency NEPA documents in federal Courts of Appeals for the ten-year period 1996–2005. The results show that federal agencies are overwhelmingly successful against such challenges — winning 30 of the 37 cases. The most common challenge was that federal agencies had not included a full reasonable range of alternatives, while the second most frequent was that agencies had improperly constructed their purpose and need for their projects. Brief descriptions of several of the key court decisions are provided that illustrate the main factors that led to agencies being successful, as well as being unsuccessful, in their court challenges. The results provide little support for recent calls to amend the NEPA Statute and the CEQ Regulations to better clarify the requirements for alternatives analysis. The conclusion to the study focuses on practical steps NEPA practitioners can take to prepare their alternatives analyses in a manner that fulfills the requirements of the NEPA Statute and Council on Environmental Quality (CEQ) Regulations and makes them less vulnerable to an unfavorable court decision if legally challenged.