Origins and development - Introduction to Environmental Impact Assessment - page 36

102(1)…(e) Requiring that…the decision-maker consider the alternatives
described in the environmental impact statement. (§1505.1)
Where all relevant agencies agree that the action should not go ahead,
permission is denied, and a judicial resolution may be attempted. Where
agencies agree that the action can proceed, permission is given, possibly
subject to specified conditions (e.g. monitoring, mitigation). Where the
relevant agencies disagree, the CEQ acts as arbiter (§1504). Until a
decision is made, “no action concerning the proposals shall be taken
which could: (1) have an adverse environmental impact; or (2) limit the
choice of reasonable alternatives…” (§1506.1).
2.2.4 Recent trends
During the first 10 years of NEPA's implementation, about 1,000 EISs were prepared
annually. Subsequently, negotiated improvements to the environmental impacts of
proposed actions have become increasingly common during the preparation of
“environmental assessments”. This has led to many “mitigated findings of no significant
impact” (no perfect acronym exists for this), reducing the number of EISs prepared:
whereas 1,273 EISs were prepared in 1979, only 456 were prepared in 1991 and the
annual number has been approximately 500 in recent years (EPA website:
es.epa.gov/oeca/ofa/; and CEQ 1993). This trend can be viewed positively, since it means
that environmental impacts are considered earlier in the decision-making process, and
since it reduces the costs of preparing EISs. However, the fact that this abbreviated
process allows less public participation causes some concern. Of the 456 EISs prepared in
1991, 145 were filed by the Department of Agriculture (primarily for forestry and range
management) and 87 were filed by the Department of Transportation (primarily for road
construction). Between 1979 and 1991, the number of EISs filed by the Department of
Housing and Urban Development fell from 170 to 7! The number of legal cases filed
against federal departments and agencies on the basis of NEPA also fell slightly, from
139 in 1979 to 128 in 1991. The most common complaints were “no EIS when one
should have been prepared” (41 cases in 1991) and “inadequate EIS” (26 cases in 1991).
The National Environmental Policy Act's twentieth year of operation, 1990, was
marked by a series of conferences on the Act and the presentation to Congress of a bill of
NEPA amendments. Under the Bill (HR1113), which was not passed, federal actions that
take place outside the USA (e.g. projects built in other countries with US federal
assistance) would have been subject to EIA, and all EISs would have been required to
consider global climatic change, the depletion of the ozone layer, the loss of biological
diversity and transboundary pollution. This latter amendment was controversial: although
the need to consider the global impacts of programmes was undisputed, it was felt to be
infeasible at the level of project EIA. Finally, the Bill would have required all federal
agencies to survey a statistically significant sample of EISs to determine whether
mitigation measures promised in the EIS had been implemented and, if so, whether they
had been effective.
The context of EIA has also become a matter of concern. EIA is only one part of a
broader environmental policy (NEPA), but the procedural provisions set out in NEPA's
§102(2)(C) have overshadowed the rest of the Act. It has been argued that mere