NEPA Process and Specific Requirements - Environmental Impact Analysis: Process and Methods - page 69

analysis document. Both EAs and EISs must achieve NEPA goals and intent
by transparency and objectivity (i.e., analyses, procedures, and decisions
cannot be “arbitrary or capricious”). The two documents are also similar in
their requirement to consider environmental permits in the evaluation and
involve other agencies with jurisdiction or interest in resources potentially
affected. However an EA is often referred to as a “mini EIS” and the envi-
ronmental analysis in an EA differs from the one in an EIS in scope and
intensity (Table 3.1).
Differences between an EIS and EA in treatment of alternatives have
evolved as a major distinction in the two NEPA documents. Although CEQ
Regulations and NEPA call for consideration of alternatives to the proposed
action for any action subject to NEPA, including in an EA, the focus of an
EA almost always is heavily on a single alternative—the proposed action.
This is because the agency has identified a need, an action that addresses
the need, and the agency has made an initial interpretation that the action
has little or no adverse environmental impact. It is very rare that an agency
would embark on an EA if they had not already identified a proposed action
and could make a preliminary educated assessment of magnitude of envi-
ronmental impact resulting from the action. If they had not identified the
proposed action and developed at least some detail on how it would be
implemented, it would be very difficult to assess the potential for significant
impact and preparation of an EA could be a wasted effort.
The public participation component is also a differentiator between EIS
and EA requirements. As discussed above, public input to scoping for an
EIS is critical not only to the success of the document but also to procedural
compliance. Circulation, comment, and response to a draft EIS are similarly
required and critical parts of the EIS process. Litigation invalidating an EIS
is frequently based on lack of sufficient compliance with public participa-
tion guidance and mandates, particularly addressing comments received
during the process. However, in California Trout v. Federal Energy Regulatory
Commission , 572 F.3d 1003 (9th Cir. 2009), the court ruled that while NEPA
does not require the same level of public participation by federal agencies
for EAs compared with EISs, “an agency must permit some public participa-
tion when it issues an EA.” The courts have not stated what kind of public
participation is required to meet NEPA standards, but their rulings make it
clear that a complete failure to inform or involve the public as an integral
part of the EA process would violate NEPA and CEQ Regulations. Such a
failure to involve the public can also be a determinant to successful imple-
mentation of a proposed action and can sometimes miss an opportunity to
enhance a project and minimize impacts by taking advantage of stakeholder
knowledge.
In contrast to an EIS, public participation for EAs is not specified by
NEPA or CEQ guidance but rather left to the discretion of each agency.
For example, in Theodore Roosevelt Conservation Partnership v. Salazar ,