Determining if a change to a proposal requires additional NEPA documentation: the Smithsonian Solution

Abstract

Proposed actions tend to evolve over time. Once National Environmental Policy Act (NEPA) documentation is completed, agencies are at risk that subsequent changes may not be adequately covered or that existing NEPA documentation maybe completely invalidated. Neither NEPA nor its subsequent regulations provide sufficient direction for determining the degree to which a proposed action may change before preparation of new or supplemental documentation is necessary. Yet, decisionmakers are routinely involved in determining if a change to a proposed action departs, to such an extent, from the description presented in the NEPA document that additional documentation is necessary. Experience demonstrates that no two decisionmakers will completely agree, one decisionmaker might believe that a particular change would not require additional documentation, while the other concludes the exact opposite. Lacking definitive direction, decisionmakers and critics alike may point to a universe of potential considerations as the basis for defending their claim that a change in an action does or does not require new or additional NEPA documentation. Assertions are often based on equivocal opinions that can be neither proved nor disproved. Moreover, decisionmakers are frequently placed in an arduous dilemma of justifying a decision, for which there is no generally accepted methodology on which to base the decision. Lack of definitive direction can prolong the decisionmaking process, resulting in project delays. This can also lead to inappropriate levels of NEPA documentation, inconsistencies in decisionmaking, and increased risk of a legal challenge because of insufficient documentation. Clearly, a more systematic and less subjective approach is needed, A tool for streamlining the NEPA process, by reducing this degree of subjectivity, is presented in this paper.