NEPA Process and Specific Requirements - Environmental Impact Analysis: Process and Methods - page 99

long as procedures are followed, they are not arbitrary or capricious, and that
they have taken a “hard look” at the impacts before making decisions.
Although in the above and similar examples the courts did not prohibit
implementation of the proposed action as long as NEPA procedures were fol-
lowed, their decisions frequently can have that effect. It generally takes one
or more years for a challenged EIS to make its way through the district court,
and if the decision goes to appeal it can be another year or more. During this
time the proposing agency often loses funding or refocuses its energies on
other more implementable projects. If there is an immediate need to imple-
ment a solution to a problem or exploit an opportunity, the federal agency
will often abandon their proposed alternative which is unpopular (which is
generally the true reason for the challenge as the plaintiff frequently could
care less if the agency strictly followed NEPA procedure) and choose an
alternative and/or mitigating measures that satisfies both their legitimate
purpose and need as well as the primary objections of the plaintiffs and
other stakeholders. This approach by the proposing agency has often been
taken to avoid the lengthy delays and expenditure associated with litigation.
The court of public opinion can play just as large a part in NEPA enforce-
ment as the judicial court. Almost any dedicated and self-respecting senior
federal agency official will only very reluctantly confirm in a public forum
that they have decided to proceed with a project even though the agency
acknowledged it will have serious adverse environmental effects that could
be mitigated. Thus they strive through the process to find an environmentally
acceptable alternative, gain support from environmental advocates, achieve
maximum practicable impact mitigation, be thoroughly convinced there is
not a more environmentally acceptable approach to meeting the purpose and
need, or some combination of these measures to avoid being forced to make
such a confession and live with the repercussions. This is illustrated by the
urban legend of a U.S. Air Force colonel at a NEPA public meeting to site a
radar installation (may or may not be true but it is repeated as part of envi-
ronmental training). When asked whether the Air Force had considered bird
strikes (i.e., measures to prevent birds from flying into the radar facility) and
the potential impact to the endangered bald eagle, which is the national bird
of the United States, the colonel allegedly replied, “Yeah, but we are talking
about national defense here, who cares about a frigging bird.” The full-bird
colonel was moved to another project and the proposed radar installation site
was moved much farther from the bald eagle nesting habitat.
3.8 NEPAConclusion
At its core NEPA is a simple concept designed to provide a mechanism for
environmental impact analysis and protection while maintaining a balance