NEPA Process and Specific Requirements - Environmental Impact Analysis: Process and Methods - page 98

but they must consider it and either address the comment or clearly
explain why it does not have to be addressed.
r Treatment of alternatives. NEPA and CEQ Regulations are clear that
consideration of alternatives is at the heart of NEPA and if the agency
doesn't consider a “reasonable range of alternative[s]” (see Chapter 5)
or rejects an alternative suggested by a stakeholder without explaining
why it is not appropriate, the courts have been very clear that the NEPA
analysis is flawed. Similarly as discussed above in detail, the alternative
evaluation must be consistent with the purpose and need statement.
r An agency's failure to fully set forth the scientific basis for all its
conclusions or give adequate consideration of the relevant and perti-
nent facts. However, to challenge an EIS or NEPA procedure in gen-
eral, there must be a demonstration that the relevant and pertinent
facts were known to the agency (e.g., they had been used elsewhere
within the agency) or their existence made known to the agency
(e.g., by a scoping or draft EIS comment).
r Failure to acknowledge an environmental impact in an ROD or
address mitigation of the impact. As discussed above an agency
must identify adverse impacts and measures to mitigate the impact.
They are not required to mitigate adverse impacts but if they decide
not to, they must explain why.
So if the court rules that NEPA procedures have not been followed and
there are no penalties imposed, what are the repercussions for the agency?
The most immediate is an injunction prohibiting implementation of the pro-
posed action. Thus if the agency wants to proceed, they must rectify the pro-
cedural flaw, which most often means preparing a new or supplemental EIS
(see Chapter 6 for a discussion of supplemental and other multilevel environ-
mental analyses). In practice, a court ruling for a new or supplemental EIS
frequently results in such delays that the agency frequently loses either public
support or funding for the project and they abandon the proposal. The result
of an adverse judicial decision in many cases is the agency modifying the
proposed action to include significant mitigation or selecting an alternative
with less environmental impact in the revised document to avoid additional
litigation and the accompanying delays.
In each of these numerous court cases discussed under purpose and need
(Section 3.2.2) in which the court ruled against the federal agency, the rul-
ing was directed at the EIS and not the project under consideration. In some
cases the EIS was deemed inadequate or deficient, but in other cases the
courts ruled that the agency made an arbitrary or capricious judgment or
decision which violated the NEPA process. In no case did the court rule that
the proposed action “had too great an impact.” The courts have universally
treated NEPA as procedural and allowed the proposing federal entity to exer-
cise its authority to fulfill its mission, regardless of environmental impact as