Defining the Scope of Alternatives in an EIS After Citizens Against Burlington

21 ELR 10701 | Environmental Law Reporter | copyright © 1991 | All rights reserved


Defining the Scope of Alternatives in an EIS After Citizens Against Burlington

Peter J. Kirsch and Conrad M. Rippy

Editors' Summary: NEPA requires federal agencies to prepare EISs for major federal actions that significantly affect the quality of the human environment. EISs must discuss all reasonable alternatives to the proposed action. The discussion of alternatives is the heart of an EIS. In Citizens Against Burlington, Inc. v. Busey, the D.C. Circuit appears to have narrowed the scope of alternatives that a federal agency must consider when it issues a permit or other federal approval. This Article analyzes the case and proposes an interpretation that would reconcile Citizens Against Burlington with CEQ regulations and NEPA case law on the scope of alternatives.

Peter J. Kirsch is an attorney with Cutler & Stanfield in Washington, D.C. His practice specializes in federal environmental and land use law and complex public sector negotiations. Conrad M. Rippy is a third-year law student at the University of Virginia where he is Notes Editor of the Virginia Law Review.

[21 ELR 10701]

In the recent case of Citizens Against Burlington, Inc. v. Busey,1 the D.C. Circuit interpreted the National Environmental Policy Act (NEPA)2 and its requirement that federal agencies, when preparing an environmental impact statement (EIS), must consider all reasonable "alternatives to the proposed action."3 On its surface, the opinion by Circuit Court Judge Clarence Thomas4 appears to reject both NEPA regulations and longstanding case law on the proper scope of alternatives that an agency must consider in an EIS. The opinion seems to sanction a narrower scope of alternatives when a federal agency issues a permit or other federal approval than when a federal agency is the principal proponent of a project. This Article explores the court's reasoning and proposes an interpretation of the case that reconciles the apparent conflict between Citizens Against Burlington and 20 years of case law defining the proper scope of alternatives in an EIS.

NEPA requires that federal agencies prepare an EIS on "major Federal actions significantly affecting the quality of the human environment."5 The regulations of the Council on Environmental Quality (CEQ), which form the foundation for all other federal regulations under [21 ELR 10702] NEPA,6 require that an EIS contain, among other elements, a statement of the purpose of and need for the action,7 and a discussion of alternatives to the proposed action.8 It is these two requirements that were at issue in Citizens Against Burlington.

The requirement to analyze alternatives to a proposed project is the heart of NEPA. It is absolutely essential that an EIS contain "detailed and careful" analysis of the relative merits and demerits of the proposed action and proposed alternatives, a requirement which courts have characterized as the "linchpin" of an EIS.9

Citizens Against Burlington v. Busey

Background of Toledo Airport Expansion EIS

Citizens Against Burlington arose from the approval by the Federal Aviation Administration (FAA) of plans to expand Toledo Express Airport near Toledo, Ohio. The Toledo-Lucas County Port Authority sought to expand Toledo Express Airport to accommodate plans by Burlington Air Express to move its air cargo operation to Toledo from Fort Wayne, Indiana. Toledo predicted that Burlington's move would bring more than 1,000 jobs to the city's depressed economy. As an incentive to attract Burlington, the Port Authority proposed to enhance Toledo Express Airport by constructing new facilities and lengthening a runway and taxiways at the airport, all of which required FAA approval. The Port Authority also sought FAA funding for the expansion project.

One of the first steps in seeking FAA approval or funding is the preparation of the required NEPA documentation on the proposal. As required by FAA regulations,10 the Toledo Port Authority prepared an environmental assessment,11 which the FAA converted into an environmental impact statement.12 The draft EIS generated considerable controversy from both the public and the Environmental Protection Agency.13 In its final EIS, under a subhead entitled "Need for the Proposed Federal Action," the FAA explained that:

The purpose and need for this action lies in FAA's responsibility to review the airport design and runway configuration with respect to its safety, efficiency and utility within the national airspace system and its environmental impact on the surrounding area.

The key item in this regard is the need for extending Runway 7-25 to provide safe and adequate length….

Another purpose and need for the proposed Federal action is that FAA has a statutory mandate to facilitate the establishment of air cargo hubs….14

The FAA reviewed and dismissed several alternatives before concluding that it had to consider in depth the environmental impacts of only two alternatives: the approval of the airport expansion plan as proposed by Burlington and the Port Authority, and the no-action alternative. The FAA explained that

[w]ith respect to this proposal for establishment of an air cargo hub at Toledo Express Airport, the role of the FAA in selecting alternatives is limited…. The FAA has verified the need for the proposed project…. The FAA has further reviewed the site selection process that Burlington began in 1987…15

Following issuance of the EIS, the FAA approved the proposed airport expansion in July 1990.16

Judge Thomas's Opinion on Review of the EIS

The petitioners in Citizens Against Burlington sought review of the FAA's decision approving the Toledo expansion plan on the grounds that the EIS impermissibly discussed only the alternatives of approving the plan as proposed by the Port Authority and the no-action alternative. Petitioners argued that the FAA should have considered other alternatives in detail, including the alternative of expanding Burlington Air Express operations at its existing Fort Wayne, Indiana, facility.17 Petitioners also raised a number of issues relating to the adequacy of the EIS discussion of noise impacts, to the scope of analysis required for compliance with § 4(f) of the Department of Transportation Act18 and § 509(b)(5) of the Airport and Airway Improvement Act of 1982,19 and relating to NEPA conflict-of-interest rules,20 which are beyond the scope of this Article.

[21 ELR 10703]

For the present discussion, it is important to understand the issues on review as articulated in petitioners' brief. The principal issue was the scope of alternatives in the EIS:

Whether the FAA has violated NEPA by relying on an environmental impact statement which (a) fails to analyze the continuation of Burlington's operations in Ft. Wayne even though this is a feasible and reasonable alternative…21

Petitioners argued at length that the FAA should have considered the alternative that the Burlington Air Express facility would remain at Ft. Wayne, Indiana,22 and criticized the agency's assertion that legally it was limited in its action to accepting or rejecting Toledo's application.23

The D.C. Circuit panel, with Judge James Buckley dissenting, upheld the scope of alternatives in the EIS. Writing for the majority, Judge Clarence Thomas undertook a wide-ranging discussion of an agency's obligations under NEPA to consider alternatives in an EIS.24 Noting that the term "alternatives" as used in NEPA is not self-defining,25 Judge Thomas observed that "[i]f … the consideration of alternatives is to inform both the public and the agency decisionmaker, the discussion must be moored to 'some notion of feasibility.'"26 Judge Thomas explained that an alternative is reasonable — and must, therefore, be analyzed in an EIS — "if it will bring about the ends of the federal action."27 In other words, he concluded, "[t]he goals of an action delimit the universe of the action's reasonable alternatives."28

Court's Definition of Goals of Federal Action

The court started by explaining its standard of review: "the agency … bears the responsibility for defining at the outset the objectives of an action,"29 and the court will "uphold an agency's definition of objectives so long as the objectives that the agency chooses are reasonable."30 Nevertheless,

an agency may not define the objectives of its action in terms so unreasonably narrow that only one alternative … would accomplish the goals of the agency's action…. Nor may an agency frame its goals in terms so unreasonably broad that an infinite number of alternatives would accomplish those goals …31

Paraphrasing the EIS, the court explained how an agency should determine its "goals" and "objectives" when the agency is asked to approve an application by a nonfederal party: an "agency should take into account the needs and goals of the parties involved in the application."32 The court did not explain the relationship between an applicant's "needs and goals" and the corresponding federal "goals" and "objectives," though the context suggests that the court used the terms interchangeably.

The court next turned to an examination of how the FAA set its "goals" for the Toledo airport expansion. Observing that Congress has told the FAA to "nurture aspiring cargo hubs,"33 Judge Thomas concluded that it was proper for the FAA to define its goal with reference to "the Port Authority's reasons for wanting a cargo hub in Toledo,"34 among which was the Port Authority's hope that a cargo hub "will lead to a renaissance in the Toledo metropolitan region."35 Consequently, the court found that

the FAA defined the goal for its action as helping to launch a new cargo hub in Toledo and thereby helping to fuel the Toledo economy. The agency then eliminated from detailed discussion the alternatives that would not accomplish this goal.36

The court held that the FAA acted properly in its decision to evaluate the "environmental impacts of the only proposal that might reasonably accomplish that goal — approving the construction and operation of a cargo hub at Toledo Express."37 Although the court found that an essential "goal" was the FAA's desire to help "fuel the Toledo economy," the source of this finding is troubling. Neither the FAA nor the parties in their briefs articulated economic growth as a consideration. The only discussion of economic growth in the EIS was as a beneficial impact of the proposed action.38

Although the court discussed at length the FAA's "goals" and its "objectives" (and apparently uses both terms interchangeably), neither term is used in the EIS. Nor did the EIS anywhere explain that the goal of the project was either a new cargo hub at Toledo Express Airport or the rejuvenation of the Toledo economy. For example, the EIS refers to the "purpose and need for this action," to the "need for extending" a runway, to the statutory mandate as setting "[a]nother purpose and need for the proposed Federal action," and to the proposed federal action as "fulfilling this mandate."39 Notwithstanding his view that it would be improper for the court itself to define the agency's goals,40 Judge Thomas did precisely that in order to conclude that [21 ELR 10704] the FAA's goal in Toledo was to help fuel the Toledo economy by launching a cargo hub at its airport.41

Adequacy of Discussion of Alternatives

Having determined the agency's goals, the court proceeded to explore whether the scope of alternatives in the EIS appropriately reflected those goals. It concluded that the FAA acted properly by evaluating the impacts only of the proposal submitted by the Port Authority and by excluding any other potential alternative. Strictly relying on the language found in NEPA,42 the court explained that an agency need examine only alternatives to the federal action, not alternatives to the entire proposed project.43 Because a federal permitting agency like the FAA often is limited simply to granting or denying a permit, and has no substantive role in shaping the applicant's project, Judge Thomas concluded that an EIS need not examine alternatives to an applicant's proposal that lie outside the purview of the federal involvement.44

Citing Van Abbema v. Fornell,45 the petitioners argued that the scope of alternatives must be defined as "alternative means to accomplish the general goal of an action; it is not an evaluation of the alternative means by which a particular applicant can reach his goals."46 The court explicitly rejected the Van Abbema reference to "general goals," because of the difficulty of determining "how to distinguish general goals from specific ones and just who does the distinguishing."47 Arguing that Van Abbema implies that the court should do this distinguishing, Judge Thomas disagreed that this is a proper role for either the court or the permitting agency:

An agency cannot redefine the goals of the proposal that arouses the call for action; it must evaluate alternative ways of achieving its goals, shaped by the application at issue and by the function that the agency plays in the decisional process. Congress did expect agencies to consider an applicant's wants when the agency formulates the goals of its own proposed action.48

Without citing any authority for the proposition, Judge Thomas concluded that the scope of alternatives in an EIS — just like the definition of the agency's goals — properly should depend on the "function that the agency plays in the decisional process."49 With respect to such airport expansions as proposed at Toledo, the FAA's function generally is to "nurture aspiring cargo hubs" but not to "determine the siting of the nation's airports."50 Consequently, the court concluded that the FAA had no business examining alternative airport locations for the Burlington Air Express cargo hub, once Burlington made clear its preference for the Toledo location.

Judge Buckley's Dissent

Judge James Buckley dissented in part from the majority opinion, on the grounds that the FAA impermissibly had limited the alternatives in the EIS to the single alternative in which Burlington Air Express had expressed an interest. He saw a disparity between the majority view that "would limit consideration of alternatives to those available" to the Toledo Port Authority,51 and the FAA's view that it had to consider any reasonable alternative that was available to either the Port Authority or Burlington Air Express, the real beneficiary of the project.52 The dissent faulted the FAA and the majority for their unquestioning acceptance of assertions by both the Toledo Port Authority and Burlington Air Express that Toledo Express Airport was the only airport suitable for the project. Instead of testing these assertions, the FAA "simply accepted Burlington's 'Toledo-or-bust' position,"53 notwithstanding its obligation under NEPA to "exercise a degree of skepticism in dealing with self-serving statements from a prime beneficiary of the project."54

As Judge Buckley explained, the majority opinion leaves the scope of an EIS in the hands of the beneficiary of a federally permitted project. If the beneficiary claims that one and only one project alternative is acceptable, then the agency's EIS need only examine that proposal and the no-action alternative.55

Implications of the Citizens Against Burlington Case

The plain language of Citizens Against Burlington suggests two potentially far-reaching consequences. First, the court appears to have held that an agency may accept the "needs and goals" of a nonfederal applicant as the defining criteria for its own "goals" or "objectives." Second, since the court says that the range of alternatives properly is defined by the federal agency's "goals" or "objectives," the scope of alternatives in an EIS also should be defined by the applicant's desires and the nature of the agency's role in the decisionmaking process.

If these two propositions were accepted as the holdings of Citizens Against Burlington, they would portend a situation in which any applicant for a federal permit could limit NEPA analysis to consideration of only the project and no-project alternatives, merely by informing the permitting agency that it would not consider modifications to its project. Either proposition effectively eviscerates [21 ELR 10705] the alternatives requirement in any EIS for a federally permitted action.56

Acceptance of either proposition means throwing to the wind almost 20 years of NEPA case law and CEQ guidance in three fundamental respects. First, NEPA requires an agency to examine all "reasonable" alternatives, without reference to the agency's jurisdiction to implement the alternative.57 Second, both CEQ and the case law consistently have held that the scope of alternatives in an EIS must reflect only technical, economic, and common sense practicability.58 Third, both the regulations and case law are highly critical of any EIS that relies on information and analysis provided by an applicant and that has not been evaluated independently by the federal agency.59

It is possible to reconcile Citizens Against Burlington, however, with both CEQ regulations and guidance60 and other NEPA cases addressing the scope of alternatives. To do so requires examination of the meaning of the terms "purpose" and "need" as they are used in the NEPA context and an understanding of the contexts in which courts have addressed the alternatives requirement of NEPA.

Importance of Defining Purpose and Need

This discussion must begin with four basic definitions and propositions. First, although it has been widely used by courts in many circuits, Judge Thomas's term "goal" is not defined in NEPA, used in the CEQ regulations, nor explained in CEQ guidance documents. Because there is, furthermore, no generally accepted definition, the term goal has variously been used to refer to the need for a proposed action, the purpose of a federal action, or the mission or mandate of a federal agency. (Incidentally, while the term does appear in some EISs, the FAA did not use the term in the Toledo EIS. The description of the agency's goals in Citizens Against Burlington is Judge Thomas's interpretation of the EIS.)

Second, while NEPA requires an EIS to include discussion of "alternatives to the proposed action," the statute itself does not indicate whether "the proposed action" for this purpose is identical to the "major Federal action" referred to in an earlier clause of the statute. Contrary to Judge Thomas's unsupported assertions, CEQ regulations and guidance have interpreted the phrase "alternatives to the proposed action" to be broader than alternatives to the federal action alone.61 The CEQ requires that the foundation for consideration of alternatives be the entire underlying project, including those elements in which there is no federal participation.62

Third, the CEQ requirement that the scope of alternatives not be limited by the agency's jurisdiction is reinforced by the definition of the project or proposed action for NEPA purposes. If a federal action (e.g., a license or permit) is a necessary precondition to other parts of a project (e.g., construction of a new runway or taxiways), the entire project — not just the federal element — becomes the proposed [21 ELR 10706] action for NEPA purposes; alternatives to the entire project must be examined.63

Fourth, while the strict language of NEPA does not offer a benchmark for determining "reasonable alternatives," CEQ regulations and guidance set forth such standards. Reasonable alternatives are those that are "practical or feasible from the technical and economic standpoint and using common sense."64 Because an agency's responsibilities are bounded by some notion of feasibility, an agency need not discuss "purely conjectural possibilities."65

These four definitions set the foundation for a theory on how the elements of an EIS are interconnected. The CEQ requires that the framework for the scope of alternatives be the purpose and need for the proposed action. An EIS must contain a statement of the purposed action. An EIS must contain a statement of the purpose and need:

The statement shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action.66

Just as practicality and feasibility determine whether an alternative is reasonable, both CEQ regulations and case law recognize that the statement of need defines the scope of alternatives in an EIS.67 In other words, the broader the statement of need, the greater the range of alternatives. Beyond this, neither the statute nor the CEQ regulations provides much assistance.

A careful distinction between "purpose" and "need" will avoid much of the confusing terminology which cases like Citizens Against Burlington have fostered.68 A need is the lack of something requisite, desirable, or useful or a condition requiring relief.69 Purpose is defined as an object or end to be achieved.70 Consequently, the two terms should be interpreted as complementary. The EIS discussion of purpose and need should demonstrate that the purpose of a proposed federal action is to attain or achieve at least part of the underlying need for the proposed action.

The statements of purpose and need for the proposed action each play a different role. The statement of need should be an objective description of the reason that the project (not necessarily the federal action) is being pursued.71 An EIS must include alternative methods of satisfying the need, including any reasonable alternative means that lie outside the jurisdiction of the federal agency. An adequate discussion of alternatives will respond fully to the statement of need.72

The statement of purpose follows from the statement of need. It should be seen as the tool for understanding why the federal agency has selected the preferred alternative from among the alternative ways of meeting the need. Unlike the objective statement of need, the statement of purpose can be subjective, should refer to an agency's mission, and should reflect the limits on an agency's statutory authority. The statement of purpose further should explain how the proposed federal action satisfies the need and should justify the decision to choose the preferred alternative. Since an EIS must be prepared only for a major federal action, the statement of purpose should explain the nature of the federal action and the relationship between the project and the federal action.

This theory of the meaning of purpose and need suggests that need must be defined first, framing and delimiting the discussion of alternatives in an EIS. When need and purpose are fused into a single statement — as in the past they frequently have been — it becomes possible for an agency to define the need for a project as the agency's purpose.

An example proves the point. Suppose an area lacks adequate electricity capacity, and an applicant wishes to build a nuclear reactor to provide this capacity, for which a federal license is required. One of the benefits of the project might be the jobs and economic growth it would generate for the region. A proper statement of need for the federal action would relate to the provision of electricity capacity; the EIS on the project must examine alternative ways of increasing regional electricity capacity. A proper statement of purpose would relate to the licensing of a nuclear power plant. The federal action is the granting of a license or permit necessary to construct the additional electricity capacity. Were the regulatory agency improperly to equate purpose and need in a single statement, it might define the "purpose and need" as providing electricity capacity and encouraging development of the nuclear industry while also stimulating economic growth in the region. The scope of alternatives is fundamentally different when the statement of need is fused into a single statement of purpose and need. The latter, limited, definition of need allows no alternatives other than that proposed by the applicant, effectively short-circuiting the the alternatives requirement of NEPA.

Judge Thomas sees a strikingly similar "goal" (combining need and purpose) behind the expansion of Toledo Express Airport.73 The FAA could have devised several different statements of need for the Toledo project that could have required its EIS to examine not only alternative [21 ELR 10707] locations for a Burlington air cargo hub, but also alternatives to air cargo services altogether. At the other extreme, the FAA could have defined the need for the project so narrowly that the only practical and feasible alternative was the construction of a cargo hub at Toledo Express precisely as proposed by Burlington. Judge Thomas believes that the FAA properly adopted this latter approach.

Judicial Review of the Statements of Purpose and Need

The principal utility of this paradigm separating the statements of purpose and need is to define a clearer standard of judicial review. In the past, in those few cases in which the definition of purpose or need has been at issue, courts have not articulated a clear standard of review.74 It can be argued, however, that the standard of judicial review should not be the same for the two statements.

Because the underlying need for a federal action is supposed to be examined objectively,75 without regard to the agency's policy aims or statutory mission, the adequacy of its definition is easily susceptible to judicial review under the well-established "rule of reason" standard by scrutinizing the scope of alternatives.76 Precisely the opposite standard should apply to the statement of purpose. Since this statement should reflect an agency's policy decision on how, when, and to what degree it will satisfy the need, the adequacy of a statement of purpose is largely a discretionary, administrative determination, and should be subject to judicial review under a much more deferential standard.77 A statement of purpose should be reviewed only to determine whether it violates an agency's statutory authority or mission.

This distinction between the statements of purpose and need should alleviate the difficulties of judicial review exemplified by Citizens Against Burlington. As Judge Thomas's discussion implies, courts are loath to second guess an agency's decision when a court cannot distinguish between an agency's policy preferences and the objective facts underlying that decision. Joint statements of purpose and need, therefore, are likely to be upheld not because a court finds that they meet the requirements of NEPA, but because of reluctance to impose judicially established policy preferences on federal agencies.

Although courts frequently have confused or combined the concepts of purpose and need, at least one court has successfully drawn the distinction. In Druid Hills Civic Association v. Federal Highway Administration,78 the Eleventh Circuit confronted the plaintiffs' claim that the Federal Highway Administration, when considering alternatives to the purpose for its proposed parkway construction, "did not provide a full and fair discussion of the traffic and safety justifications for the road because information was omitted that did not support the perceived need for the project."79 The court drew a clear separation between the need for the project ("[t]he proposed Parkway is premised on the need for transportation improvements in the east-west corridor")80 and the purpose for the granting of construction permits ("providing an alternative east-west route," thus decreasing traffic volumes on the existing road, and "improv[ing] safety conditions in the corridor" by reducing traffic overflow onto local streets).81 The court went on to examine the discussion of alternatives to the need, and held that although the EIS did not "contain what some may feel is a detailed and careful analysis" of all potential alternatives, the analysis was adequate.82

Druid Hills stands as an unusual example of a clearly differentiated need and purpose for a project. The general, objective need for improved traffic flow on the east-west corridor was addressed not only by the preferred alternative and the purpose of the federal action, but also by a consideration in the EIS of subway, light rail, and other potential solutions.83 The court found no fault with the subjective determination of the purpose for the action and held that the discussion of alternatives reasonably fit the need.84

Necessity for Alternatives to Reflect Need

This lengthy discussion of the statements of purpose and need is critical to understanding Citizens Against Burlington and earlier cases that have examined whether the discussion of alternatives in an EIS is adequate. As has been seen, the foundation for an adequate discussion of alternatives is the statement of need. If a litigant does not challenge the propriety of an agency's statement of need, then the reviewing court is limited to examining whether the scope of alternatives closely matches the statement of need. In the principal cases in which courts have upheld the discussion of alternatives, the statement of need generally parallels closely the range of alternatives.85 Where courts have found the [21 ELR 10708] discussion of alternatives to be objectionable, it generally is because the EIS has omitted reasonable alternatives that would meet the need.86

For example, in Natural Resources Defense Council, Inc. v. Morton,87 the D.C. Circuit examined the adequacy of an EIS on oil and gas leases issued under the Outer Continental Shelf leasing program. The court held that the Department of Interior improperly limited its discussion of alternatives to those that lay within its jurisdiction. The need for the project was set forth in a message to Congress by President Nixon in which the President proposed a coordinated plan to deal with research and development toward the goal of clean energy.88 The EIS, however, improperly omitted reasonable alternatives that did not fulfill the entire need, the agency did not have authority to implement, or would have required legislative implementation.89 The court explained that the scope of alternatives must match the need for the action:

When the proposed action is an integral part of a coordinated plan to deal with a broad problem, the range of alternatives that must be evaluated must be broadened. While the Department of Interior does not have the authority [to implement all alternatives] such action is within the purview of both Congress and the President, to whom the impact statement goes.90

The opposite result prevailed where Congress enacted legislation specifically directing the construction of a project. In Izaak Walton League of America v. Marsh, an EIS was prepared on construction of new locks and dams on the Mississippi River. Plaintiffs alleged that the Army Corps of Engineers should have examined rehabilitation of existing facilities, alternative modes of transportation, and improved congestion control as alternatives to the proposed new locks and dams.91 The D.C. Circuit held that the agency did not have to examine those alternatives because the need for the project was set by congressional mandate to build new locks and dams; the agency properly examined all reasonable alternative means of satisfying that mandate.92

One of the clearest examples of the necessity for the range of alternatives to respond to the statement of need appears in Sierra Club v. Marsh.93 In that case, the district court found that the Army Corps of Engineers had omitted reasonable alternatives in its EIS for a federal permit to construct a marine cargo terminal on the coast of Sears Island, Maine. The federal agency argued that any alternative that would not satisfy the applicant's stated goals or needs is inherently not reasonable. The court disagreed. Quoting CEQ guidance, the court held that, while the agency properly should not disregard the applicant's desires, those desires alone are not enough to define the need for a project.94 The court examined the record in detail to discern both the applicant's "primary project objective" and the federal agency's "general goals" for the project.95 The court next reviewed each potential alternative proffered by the plaintiff to determine whether it would satisfy the need for the project. It then held that several omitted off-site alternatives were not reasonable in the circumstances but that omitted on-site alternatives should have been examined.96 The court explained the relationship among the statement of need, the applicant's desires, and the scope of alternatives:

The central project goals identifiable in the present FEIS contemplate an efficient marine dry cargo … terminal in the Searsport area…. Although [the applicant] amply demonstrates that it "desires" a terminal facility capable of expansion to six berths, unless its preferences bear a rational relationship to the technical and economic integrity of the project, they would not warrant exclusion of some otherwise "reasonable alternative" from analysis under NEPA. A project's principal goals must override the stated preferences of the applicant for purposes of NEPA's "reasonable alternatives" analysis.97

Surprisingly, there are few cases in which the adequacy of the agency's statement of purpose has been at issue. There are several possible explanations for the absence of such case law. First, agencies frequently prepare a single statement of "purpose and need," thereby making it difficult if not impossible to distinguish between the purpose and need.98 Some agencies — including the FAA in the case of the Toledo airport EIS — prepare a single statement that intersperses the terms "purpose" and "need" with intended synonyms such as "goal," "objective," "mission," or similar words that blur the distinction. This fusing of purpose and need makes it nearly impossible for potential challengers (and the reviewing court) to determine whether the agency has examined a reasonable range of alternatives to meet the need.99

[21 ELR 10709]

A good illustration of this problem is the First Circuit's opinion in Roosevelt Campobello International Park Commission v. Environmental Protection Agency.100 The plaintiffs specifically challenged the adequacy of the agency's statement of need for a deepwater port at Eastport, Maine, as "totally outdated and of no present use."101 The court used such phrases as "justification for the project," and the applicant's "primary objectives" that blurred the distinction between the need for the project and the agency's purpose in reviewing an applicant's proposals.102 While the court appeared to view the need to be the "longstanding federal policy of encouraging the construction of domestic refining capacity in order to promote national security," the court also opined thatthe need to which the agency was responding was more limited:

[E]valuation of alternatives was explicitly based on the premise that [the agency's] role in reviewing privately sponsored projects "is to determine whether the proposed site is environmentally acceptable…."103

It is noteworthy that the very next year, the CEQ criticized the implication in Roosevelt Campobello that an agency's role (i.e., the purpose of the federal action) properly defined the scope of alternatives.104

Other courts have used terminology that makes it nearly impossible to distinguish between purpose and need. For example, in Residents in Protest — I-35E v. Dole,105 the court used the phrases "purposes of the project," "goals and objectives," and "underlying goals of the project," synonymously with the phrase "need which [the project] was designed to serve."106 In Natural Resources Defense Council, Inc. v. Callaway,107 the court stated that the content and scope of alternatives is a function of the "nature of the proposal"; an EIS must discuss alternatives that "meet the proposal's goals."108

Both Judge Thomas and the FAA fell into the same trap in Citizens Against Burlington. First, neither Judge Thomas nor the FAA uses the terms carefully; Judge Thomas's "goals" and "objectives" appear to be a combination of the agency's purpose and the need for the project. The EIS itself contains no clearly articulated statement of purpose and need, either separately or jointly.109 The EIS does not even purport to include a statement of purpose; the section of the EIS that was labeled as the agency's statement of need contains a jumbled discussion of purpose, need, description of the project and benefits of the proposed federal action.110 It appears that the FAA believed that the need for the proposed action was

to facilitate [Toledo-Lucas County Port Authority's] construction of facilities at the airport for an air cargo hub that will serve as Burlington's permanent hub … [and to provide for] extending Runway 7-25 to provide safe and adequate length to permit Burlington Air Express to operate fully loaded CD-8-63F aircraft to west coast market destinations.111

Instead of setting forth a clear statement of purpose, the EIS sets forth the factors that the FAA says it considered in meeting the need, including the agency's "statutory mandate to facilitate the establishment of air cargo hubs," and the FAA's

responsibility to review the airport design and runway configuration with respect to safety, efficiency and utility within the national airspace system and its environmental impact on the surrounding area.112

Although he claims that the court defers to the agency's definition of the purpose and need for the project, Judge Thomas does nothing of the sort. He weaves of whole cloth the explanation in Citizens Against Burlington that the purpose or need for the Toledo project was both construction of a cargo hub for Burlington and the economic revitalization of the Toledo economy. The court's explanation is troubling not only because it is a court-imposed definition, but also because it fuses purpose, need and beneficial impacts of the project. Even if one accepted the court's implicit conclusion that it is permissible to equate purpose and need, this statement neither reflects the objective necessity for the Toledo project (the need) nor bears any relationship to the federal action that, by statute, is limited to the approval (and possible funding) of the layout plan for the expansion of Toledo Express Airport (the purpose). Consequently, even under the court's assertion that the purpose and need should reflect the nature of the agency's role, the court's definition fails to pass muster.

The holding in Citizens Against Burlington is not, however, dependent on Judge Thomas's redefinition of the purpose and need for the project. If one were to construct separate statements of purpose and need for the Toledo EIS, it appears that the FAA believed that the need for the Toledo project was to provide a permanent air cargo hub at Toledo Express Airport for Burlington. The purpose for the federal action was to design a safe and efficient facility that meets federal aviation standards.

Under this refined statement of purpose and need, it appears that the FAA's decision to evaluate only two alternatives was unobjectionable. Because the parties focussed strictly on whether the FAA had omitted discussion of reasonable alternative ways of meeting the need, moreover, the court did not need to examine the adequacy of the statement of need.

Arguably, therefore, Judge Thomas's discussion of the agency's goals and objectives is little more than dicta.113

[21 ELR 10710]

The only issue presented to the D.C. Circuit was whether the EIS discussed all reasonable alternative ways to provide a permanent air cargo hub at Toledo for Burlington. If one accepts either the FAA's or Judge Thomas's statement of the need, the case is not a close one. It was reasonable for the FAA to conclude that only the preferred alternative could reasonably satisfy the need articulated in the EIS because the FAA's statement equated need with purpose. The case shows how, if need (i.e., the general, objective necessity the project is designed to meet) is fused with purpose (i.e., the specific, subjective policy choices of the agency, taking into account the preferences of the applicant), it becomes straightforward for an agency to avoid examining any alternative but the preferred one. When the need for a project is allowed to be defined as its purpose, by definition there can be only one alternative. If the need is for an expanded airport at Toledo to serve a specific air cargo carrier, it is unreasonable to demand consideration of any alternative site in Ft. Wayne or elsewhere because such alternatives do not fulfill the need. In Citizens Against Burlington, either Judge Thomas's invention of an economic goal for the project or the FAA's mixing together of purpose and need leads to the same result: no examination of of any alternative other than the location of the expanded cargo hub at Toledo Express.

Lessons for Agencies and NEPA Litigants From Citizens Against Burlington

At first reading, Judge Thomas's opinion in Citizens Against Burlington may be seen as a complete victory for NEPA critics and federal agencies seeking to avoid the statute's procedural hurdles. The lessons of the case, however, are far less one-sided.

First, notwithstanding Judge Thomas's lengthy discussion about deference to an applicant's desires, the case should not be read as standing for the novel proposition that the scope of alternatives in an EIS depends on the nature of the federal action. At best, the discussion is an explanation of why the scope of alternatives properly matched the FAA's statement of the need for the project; at worst, the discussion is mere dicta.

Several reasons are immediately apparent why Citizens Against Burlington cannot establish a system of inquiry under NEPA that is dependent on the nature and degree of federal participation in a project. Most obviously, such a system would run counter to express CEQ guidance on the scope of alternatives, guidance which the court does not even discuss. A system that is dependent on the extent of federal involvement also would conflict directly with case law (including D.C. Circuit law), which holds that the scope of an EIS — including the project's impacts and alternatives — must include nonfederal elements of a project even when the federal government is only authorizing or permitting a small portion of the project.114

Additionally, such a system would violate the binding D.C. Circuit precedent in which the court has held that the scope of alternatives cannot be defined by the nature of the federal involvement in a project.115 Judge Thomas fails to discuss this precedent as well. Finally, if the court had intended to disregard CEQ guidance, shift NEPA law, and overrule D.C. Circuit precedent, it is reasonable to expect that the court would at least have explained its intent to do so. That the court was silent on such precedents suggests that it had no such intention.

What Judge Thomas's discussion does highlight is the importance of defining the need for a project. An interesting — if hypothetical — question is whether the FAA's murky statement of need could have survived close judicial scrutiny. That statement appears vulnerable because of its lack of objectivity, its fusing of the agency's policy aims with objective statements of fact, and because it set criteria that made the preferred alternative the only reasonable alternative. One could argue that an agency's statement of need — like that for Toledo — is prima facie improper if it allows for examination of only a single alternative.

For prospective litigants, Citizens Against Burlington underscores the importance of challenging the adequacy of the statement of need in the EIS commenting process and again on judicial review. Making a record to demonstrate that the agency is responding to a broad need would make it substantially easier to show that a narrow range of alternatives is not responsive to the need.116 An EIS that rejects all alternatives but the preferred one (or minor, cosmetic variations on the preferred alternative) should raise immediate skepticism not only that the scope of alternatives is improper, but also that the agency has fused its statements of purpose and need into a single self-justifying policy statement.

Similarly, agencies should be forced to distinguish between the need and purpose for a project and should be challenged when they use ill-defined terms such as "goals," "objectives," or "mission." The statutory and regulatory language is clear and defined; agencies should use such language to avoid the ambiguity that results when different courts try to use the same words for different purposes (e.g., the Van Abbema court and the Citizens Against Burlington court).

In Citizens Against Burlington, the FAA's confused statement of need was not at issue. Had it been, the Toledo EIS might have been vulnerable. A plaintiff can avoid a Citizens Against Burlington situation by ensuring that it creates a record to support the need for the project and by supporting its rejection of alternatives with reference to that need. While Judge Thomas's discussion suggests that an agency can define its "goals" by reference to an applicant's desires, agencies should not interpret that discussion as anything more than a reaffirmation of an agency's wide discretion to define the purpose of a federal action. Agencies still must examine all reasonable alternatives that fulfill the need for the proposed action, regardless of whether such alternatives match the agency's policy objectives or whether the agency can implement them.

1. 938 F.2d 190, 21 ELR 21142 (D.C. Cir. 1991).

2. 42 U.S.C. §§ 4321-4370a, ELR STAT. NEPA 001-012.

3. NEPA § 102(2)(C)(iii), 42 U.S.C. § 4332(2)(C)(iii), ELR STAT. NEPA 003.

4. On October 15, 1991, the Senate confirmed Clarence Thomas as an Associate Justice of the U.S. Supreme Court.

Judge Thomas has not taken an overly friendly view of environmental concerns in the past. For example, in Cross-Sound Ferry Services, Inc. v. Interstate Commerce Comm'n, 934 F.2d 327 (D.C. Cir. 1991), Judge Thomas concurred in a judgment denying a NEPA claim. Moreover, he would have denied standing to the plaintiff, arguing, contrary to the majority, that the national transportation policy set forth at 49 U.S.C. § 10101 could not be interpreted to encompass environmental factors. Judge Thomas contended that statutory language mandating efficient transportation "surely did not mean to … promote ecological consciousness-raising" or any factors other than "the economics of transportation." Id. at 338. Judge Thomas thus seems unwilling to consider environmental protection as an element of a cost-benefit equation.

Although he has not written any other significant environmental opinions, Judge Thomas' basic indifference towards environmental claims appears in other environmental cases in which he has sided with the majority in denying claims based on federal environmental laws. See, e.g., National Wildlife Fed'n v. United States Envtl. Protection Agency, 925 F.2d 470, 21 ELR 20565 (D.C. Cir. 1991) (denying petition for review of a decision by EPA allowing states, for limited time periods, not to comply with the Safe Drinking Water Act); Tongass Conservation Soc'y v. Cheney, 924 F.2d 1137, 21 ELR 20558 (D.C. Cir. 1991) (upholding as adequate the consideration of a range of alternatives in an EIS prepared by the Department of Defense for siting of a submarine base); Macht v. Skinner, 916 F.2d 13, 21 ELR 20,004 (D.C. Cir. 1990) (holding that neither federal funding for an EIS for a light rail vehicle project otherwise entirely funded by the state of Maryland nor Army Corps of Engineers issuance of a wetlands permit for a "negligible" part of the project constitutes major federal action for the purposes of NEPA or § 4(f) of the Transportation Act); Hazardous Waste Treatment Council v. United States Envtl. Protection Agency, 910 F.2d 974, 20 ELR 21359 (D.C. Cir. 1990) (denying a petition for review of a Resource Conservation and Recovery Act "no migration" hazardous waste disposal exemption). But see Linemaster Switch Corp. v. United States Envtl. Protection Agency, 938 F.2d 1299, 21 ELR 21359 (D.C. Cir. 1991) (denying plaintiffs' petition for review of decision by EPA to add hazardous waste sites owned by plaintiffs to the national priorities list under the Comprehensive Environmental Response, Compensation, and Liability Act).

5. NEPA § 102(2)(C), § 4332(2)(C), ELR STAT. NEPA 003.

6. 40 C.F.R. § 1507.1 (requiring all federal agencies to comply with CEQ regulations).

7. Id. § 1502.13.

8. Id. § 1502.14.

9. Natural Resources Defense Council, Inc. v. Callaway, 524 F.2d 79, 92, 5 ELR 20640, 20647 (2d Cir. 1975) (quoting Monroe County Conservation Soc'y, Inc. v. Volpe, 472 F.2d 693, 697-98, 3 ELR 20006, 20007 (2d Cir. 1972)).

10. See FED. AVIATION ADMIN., U.S DEP'T OF TRANSP., ORDER 5050.4A, AIRPORT ENVIRONMENTAL HANDBOOK (1985) [hereinafter FAA ORDER 5050.4A]; FED. AVIATION ADMIN., U.S. DEP'T OF TRANSP., ORDER 1050.1D, POLICIES AND PROCEDURES FOR CONSIDERING ENVIRONMENTAL IMPACTS (1986).

11. FAA ORDER 5050.4A, supra note 10, para. 43 et seq.

12. Id. at para. 72 et seq.

13. See 55 Fed. Reg. 8983 (Mar. 9, 1990) (EPA comments finding that draft environmental impact statement was "inadequate to fully assess all environmental impacts and therefore does not meet the purpose and intent of NEPA" and that the project was "environmentally unsatisfactory"). EPA comments on the draft EIS resulted in so much interagency controversy that EPA was able to pressure the FAA into signing a letter agreement over the manner in which impacts for future airport expansions would be analyzed. Letter from Barry Lambert Harris, Deputy Administrator, Federal Aviation Administration, to F. Henry Habicht III, Deputy Administrator, Environmental Protection Agency (June 15, 1990).

14. FED. AVIATION ADMIN., U.S. DEP'T OF TRANSP., FINAL ENVIRONMENTAL IMPACT STATEMENT ON ESTABLISHMENT OF AIR CARGO HUB, TOLEDO EXPRESS AIRPORT, TOLEDO, OHIO, at 1-3 (May 11, 1990) [hereinafter TOLEDO EIS].

15. Id. at 2-1.

16. FED. AVIATION ADMIN., GREAT LAKES REGION, U.S. DEP'T OF TRANSP., RECORD OF DECISION FOR TOLEDO EXPRESS AIRPORT, TOLEDO OHIO (July 12, 1990).

17. Brief for Petitioners, On Petition for review of a Decision of the Federal Aviation Administration at 1, Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 21 ELR 21142 (D.C. Cir. 1991) [hereinafter Pet. Br.].

18. Section 4(f) of the Transportation Act of 1966 prohibits the FAA from approving any project that uses protected parks, recreation or wildlife areas, or historic structures unless there is no prudent and feasible alternative to using the land and the project includes all possible planning to mitigate for harm to protected lands. 49 U.S.C. § 303(c).

19. The Airport and Airway Improvement Act is similar in language to § 4(f)of the Transportation Act but broader in scope in that it prohibits FAA funding of a airport expansion project that "may have a significant impact" on any environmental factor unless no feasible and prudent alternatives exist and "all reasonable steps have been taken to minimize" environmental impacts. 49 U.S.C. app. § 2208(b)(5). This statute effectively requires the FAA to implement all mitigation measures articulated in an EIS.

20. See 40 C.F.R. § 1506.5(c) (regulations regarding conflict-of-interest by preparer of EISs).

21. Pet. Br., supra note 17, at 1.

22. Id. at 23-25.

23. Id. at 26-27.

24. See supra note 4.

25. 938 F.2d 190, 194, 21 ELR 21142, 21144 (D.C. Cir. 1991) (quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 8 ELR 20288 (1978)).

26. Id. at 195, 21 ELR at 21145 (footnote and citation omitted).

27. Id.

28. Id. (emphasis added).

29. Id. at 195-96, 21 ELR at 21145.

30. Id. at 196, 21 ELR at 21145.

31. Id. (citing City of New York v. United States Dep't of Transp., 715 F.2d 732, 13 ELR 20823 (2d Cir. 1983), cert. denied, 465 U.S. 1055 (1984)).

32. 938 F.2d at 196, 21 ELR at 21145; Toledo EIS, supra note 14, at 2-1 ("the Federal government's consideration of alternatives may accord substantial weight to the preferences of the applicant and/or sponsor").

33. 938 F.2d at 197,21 ELR at 21146 (citing 49 U.S.C. app. § 2201(a)(7), (11)).

34. Id.

35. Id. at 198, 21 ELR at 21146.

36. Id.

37. Id.

38. TOLEDO EIS, supra note 14, at 1-4, 2-17.

39. Id. at 1-3, 1-4.

40. 938 F.2d at 199, 21 ELR at 21147.

41. See id. at 198, 21 ELR at 21146.

42. NEPA § 102(2)(C), 42 U.S.C. § 4332(2)(C), ELR STAT. NEPA 003 (an agency must examine "alternatives to the proposed action").

43. 938 F.2d at 199, 21 ELR at 21147.

44. Id.

45. 807 F.2d 633, 17 ELR 20429 (7th Cir. 1986).

46. Id. at 638, 17 ELR at 20432 (emphasis in original); Pet. Br., supra note 17, at 21-22.

47. 938 F.2d at 199, 21 ELR at 21147.

48. Id. (emphasis in original).

49. Id.

50. Id. at 197, 21 ELR at 21146.

51. Id. at 207, 21 ELR at 21151.

52. Id. at 208, 21 ELR at 21152 ("Burlington makes the demands that define the project; Toledo enjoys the benefits that result").

53. Id.

54. Id. at 209, 21 ELR at 21153. See Van Abbema v. Fornell, 807 F.2d 633, 642, 17 ELR 20429, 20434 (7th Cir. 1986) (criticizing agency for its "blind reliance" on information submitted by an applicant); Trinity Episcopal School Corp. v. Romney, 523 F.2d 88, 94, 5 ELR 20497, 20500 (2d Cir. 1975) (agency must determine for itself the availability of alternatives).

55. 938 F.2d at 209, 21 ELR at 21153.

56. Because the evaluation of alternatives is the "heart" of any environmental impact statement, 40 C.F.R. § 1502.14, and is the "linch-pin" of its authority, Monroe County Conservation Council, Inc. v. Volpe, 472 F.2d 693, 697-98, 3 ELR 20006, 20007 (2d Cir. 1972), it is unclear how NEPA is to continue to fulfill its mission as described by Congress: to "assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings." NEPA § 101(b)(2), 42 U.S.C. § 4331(b)(2), ELR STAT. 003.

57. 40 C.F.R. § 1502.14(c) (an EIS must include "reasonable alternatives not within the jurisdiction of the lead agency"); CEQ, MEMORANDUM: QUESTIONS AND ANSWERS ABOUT THE NEPA REGULATIONS, 46 Fed. Reg. 18026 (Mar. 23, 1981), ELR ADMIN. MATERIALS 35020, at Q. 2a (Mar. 17, 1981) [hereinafter FORTY QUESTIONS]. ("In determining the scope of alternatives to be considered, the emphasis is on what is 'reasonable' rather than on whether the proponent or applicant likes or is itself capable of carrying out a particular alternative"). See Methow Valley Citizens Council v. Regional Forester, 833 F.2d 810, 815-16, 18 ELR 20163, 20165 (9th Cir. 1987) (exclusion of any viable but unexamined alternative renders an environmental impact statement inadequate), rev'd on other grounds sub nom. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 19 ELR 20743 (1989); Van Abbema, 807 F.2d at 638, 17 ELR at 20432 (alternatives evaluation must be based on the general agency goal for the action, not on the goals of the applicant); Natural Resources Defense Council v. Morton, 458 F.2d 827, 836, 2 ELR 20029, 20033 (D.C. Cir. 1972) (consideration of alternatives must "permit a reasoned choice … so far as environmental aspects are concerned," and must include even solutions that do not fully solve the problem before the agency); Sierra Club v. Marsh, 714 F. Supp. 539, 577-78, 20 ELR 20216, 20235 (D. Me. 1989) (simply because an applicant "desires" certain features of a project does not mean that an agency may exclude otherwise reasonable alternatives from its NEPA analysis; instead, the agency must look to the core goals of the project to define reasonable alternatives); California ex rel. Van de Kamp v. Marsh, 687 F. Supp. 495, 499, 19 ELR 20165, 20166 (N.D. Cal. 1988) (failure to consider any alternative other than that submitted by the applicant excludes from consideration some reasonable alternatives and thus violates NEPA); Residents in Protest — I-35E v. Dole, 583 F. Supp. 653, 660 (D. Minn. 1984) (agency goals should not be so tailored to an applicant's wishes that the agency goal is preordained).

58. See FORTY QUESTIONS, supra note 57,at Q. 2a ("Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.") (emphasis added); Sierra Club v. Marsh, 714 F. Supp. at 577, 20 ELR at 20235 (a consideration of reasonable alternatives must have as its basis "a rational relationship to the technical and economic integrity of the project" beyond the desires of an applicant).

59. See, e.g., Van Abbema, 807 F.2d at 642, 17 ELR at 20432-33 (agency failure to conduct an independent investigation of information submitted by an applicant in formulating an agency goal amounts to "blind reliance" on such material and a violation of NEPA); Johnson v. Davis, 698 F.2d 1088, 1095 (10th Cir. 1983) (an agency may not rely on information provided by another party without doing its own research if there is a chance that such reliance would cause the EIS to be misleading); Trinity Episcopal School Corp. v. Romney, 523 F.2d 88, 93-94, 5 ELR 20497, 20500 (2d Cir. 1975) (an agency may not accept an applicant's "self-serving statements" that alternatives are limited; instead, the agency must examine all reasonable alternatives and "study, develop and describe each alternative for appropriate consideration").

60. In addition to its regulations, 40 C.F.R. pt. 1500, CEQ has published several memoranda setting forth its interpretation of the statute and the regulations. CEQ guidance and interpretation of NEPA is entitled to great deference. Andrus v. Sierra Club, 442 U.S. 347, 358, 9 ELR 20390, 20393 (1979).

61. 40 C.F.R. § 1502.14. See also FORTY QUESTIONS, supra note 57, at Q. 2a, 2b (agency is required to analyze alternatives both outside its jurisdiction and outside the capability of the applicant if such alternatives are practical and feasible, rather than simply desirable); CEQ, MEMORANDUM: GUIDANCE REGARDING NEPA REGULATIONS, 48 Fed. Reg. 34263 (July 28, 1983), ELR ADMIN. MATERIALS 35045, 35048 (July 23, 1983) [hereinafter CEQ MEMORANDUM ON GUIDANCE] (there is no inherent distinction in scope of alternatives for "traditional" federal actions and federally permitted actions).

62. 40 C.F.R. § 1502.14; Van Abbema, 807 F.2d at 638, 17 ELR at 20432 (EIS alternatives analysis must look at the general goal of an action, not "alternative means by which a particular applicant can reach his goal"); Sierra Club v. Marsh, 714 F. Supp. at 575, 20 ELR at 20234 (consideration of alternatives is to examine general objectives, not specific goals).

63. See National Forest Preservation Group v. Butz, 485 F.2d 408, 3 ELR 20783 (9th Cir. 1973) (a private project that is enabled by a federal action becomes the proposed action for NEPA purposes); Friends of the Earth, Inc. v. Coleman, 518 F.2d 323, 5 ELR 20428 (9th Cir. 1975) (nonfederal project elements that are "closely interwoven" with the federal action must be considered as part of the proposed action).

64. See 40 C.F.R. § 1502.14; FORTY QUESTIONS, supra note 57, at Q. 2a.

65. CEQ MEMORANDUM ON GUIDANCE, supra note 61, 48 Fed. Reg. at 34267, ELR ADMIN. MATERIALS at 35048.

66. 40 C.F.R. § 1502.13.

67. Id. § 1502.14; see Roosevelt Campobello Int'l Park Comm'n v. U.S. EPA, 684 F.2d 1041, 1047, 12 ELR 20903, 20905 (1st Cir. 1982). See also City of New York v. Dept. of Transportation, 715 F.2d 732, 743, 13 ELR 20823, 20827 (2d Cir. 1983) ("[t]he scope of alternatives to be considered is a function of how narrowly or broadly one views the objective of an agency's proposed action"); Trout Unlimited v. Morton, 509 F.2d 1276, 1286, 5 ELR 20151, 20155 (9th Cir. 1974) (alternatives must be "reasonably related" to statement of purpose).

68. For a general discussion of the distinction between "purpose" and "need" in the NEPA context, see Schmitt, The Statement of Underlying Need Defines the Range of Alternatives in Environmental Documents, 18 ENVTL. L. 371 (1988).

69. WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY.

70. Id.

71. Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 11 ELR 20053 (9th Cir. 1980). See also Concerned About Trident v. Rumsford, 555 F.2d 817, 831 n.2, 6 ELR 20787, 20795 n.2 (D.C. Cir. 1977) (an agency should produce an EIS that observes "objective reasonableness" when evaluating the "concept" behind the action).

72. 40 C.F.R. § 1502.14; see also Natural Resources Defense Council v. Morton, 458 F.2d 827, 836, 2 ELR 20029, 20032 (D.C. Cir. 1972) (alternatives analysis must include reasonable actions to satisfy the need even if they lie beyond agency's jurisdiction).

73. 938 F.2d 190, 196, 21 ELR 21142, 21146 (D.C. Cir. 1991).

74. See, e.g., Roosevelt Campobello Int'l Park Comm'n v. U.S. EPA, 684 F.2d 1041, 1046, 12 ELR 20903, 20905 (1st Cir. 1982) ("need" for a project not required to be updated "in order to accommodate the most recent data and federal policy shifts"); Izaak Walton League of America v. Marsh, 655 F.2d 346, 372, 11 ELR 20707, 20721 (D.C. Cir. 1981), cert. denied, 454 U.S. 1092 (1981) (congressional passage of a statute specifically authorizing a project narrows the breadth of the investigation of alternatives (defined by the need and purpose of the project)).

75. See supra note 71.

76. See Natural Resources Defense Council, 458 F.2d at 835, 2 ELR at 20031 (articulating the "rule of reason" standard for judicial review). See also Roosevelt Campobello, 684 F.2d at 1047, 12 ELR at 20905 (court "measures federal agency compliance with NEPA's procedural requirements" by adhering to a "rule of reason"); California v. Block, 690 F.2d 753, 767, 13 ELR 20092, 20098 (9th Cir. 1982) (alternatives discussed provide the basis for the "rule of reason" under which the agency decisionmaking process is reviewed by the courts); Izaak Walton League, 655 F.2d at 371-72, 11 ELR at 20721 ("rule of reason" complied with as "long as the agency's conclusions have a substantial basis in fact"); Concerned About Trident v. Rumsford, 555 F.2d 817, 827, 6 ELR 20787, 20792 (D.C. Cir. 1977) ("[i]n determining [NEPA compliance], we are governed by the rule of reason" (citations omitted)).

77. See 938 F.2d at 196, 21 ELR at 21145.

78. 772 F.2d 700, 15 ELR 21082 (11th Cir. 1985).

79. Id. at 710, 15 ELR at 21086.

80. Id. at 709, 15 ELR at 21086.

81. Id. at 710, 15 ELR at 21086.

82. Id. at 713, 15 ELR at 21088.

83. Id.

84. Id.

85. See, e.g., Roosevelt Campobello Int'l Park Comm'n v. U.S. EPA, 684 F.2d 1041, 1047, 12 ELR 20903, 20905 (1st Cir. 1982) (approving a limitation of the range of alternatives based on the need for a deepwater port); Izaak Walton League of America v. Marsh, 655 F.2d 346, 372, 11 ELR 20707, 20721 (D.C. Cir. 1981) (where need has been statutorily narrowly defined, the discussion of alternatives is similarly "relatively narrow"); North Slope Borough v. Andrus, 642 F.2d 589, 601, 10 ELR 20832, 20838 (D.C. Cir. 1980) (agencies have discretion to treat the discussion of alternatives specially with respect to the goal of the project); Trout Unlimited v. Morton, 509 F.2d 1276, 1286, 5 ELR 20151, 20155 (9th Cir. 1974) (finding consideration of alternatives adequate as long as all "those reasonably related to the purposes of the project" are included).

86. See, e.g., Van Abbema v. Fornell, 807 F.2d 633, 638, 17 ELR 20429, 20432 (7th Cir. 1986) (discussion of alternatives must "be an evaluation of alternative means to accomplish the generic goal of an action … not an evaluation of the alternative means by which a particular applicant can reach his goal"; discussion did not respond to broad need and therefore inadequate); California v. Block, 690 F.2d 753, 767, 13 ELR 20092, 20098 (9th Cir. 1982) (where the need to be addressed is "how to allocate a scarce resource — wilderness — between the two competing and mutually exclusive demands of wilderness use and development," it is unreasonable to fail to examine any alternative that develops less than 37 percent of the wilderness); Sierra Club v. Marsh, 714 F. Supp. 539, 577, 20 ELR 20216, 20235 (D. Me. 1989) (striking down EIS as inadequate because discussion of alternatives focussed too narrowly on the applicant's desires rather than the broader need for an expanded deep-water port capacity); California ex rel. Van de Kamp v. Marsh, 687 F. Supp. 495, 495-99, 19 ELR 20165, 20166 (N.D. Cal. 1988) (obvious alternative of resolving need for an expanded airport by locating part of the project at another airport not discussed; hence discussion inadequate).

87. 458 F.2d 827, 2 ELR 20029 (D.C. Cir. 1972).

88. Id. at 835, 2 ELR at 20030.

89. Id. at 837, 2 ELR at 20033-34.

90. Id. at 835, 2 ELR at 20033.

91. 655 F.2d 346, 372, 11 ELR 20707, 20721 (D.C. Cir. 1981).

92. Id. at 372-74, 11 ELR at 20721-22.

93. 714 F. Supp. 539, 20 ELR 20216 (D. Me. 1989).

94. Id. at 573-74, 20 ELR at 20233 (citations omitted).

95. Id. at 575-76, 20 ELR at 20234-35.

96. Id. at 577-82, 20 ELR at 20235-37.

97. Id. at 577, 20 ELR at 20235 (citations omitted).

98. This difficulty is exemplified by the Van Abbema opinion. There, the court attempted to distinguish between the "general" and the "specific" agency goals, a distinction which Judge Thomas in Citizens Against Burlington correctly criticizes as unworkable. 938 F.2d 190, 199, 21 ELR 21142, 21147 (D.C. Cir. 1991).

99. No alternative may be rejected on the grounds that it does not fully accomplish every goal of the originally proposed action. See Town of Matthews v. United States Dep't of Transp., 527 F. Supp. 1055, 1058, 12 ELR 20345, 20346 (W.D. N.C. 1981).

100. 684 F.2d 1041, 12 ELR 20903 (1st Cir. 1982).

101. Id. at 1046, 12 ELR at 20905.

102. Id. at 1046-47, 12 ELR at 20905.

103. Id. at 1046, 12 ELR at 20905.

104. CEQ MEMORANDUM ON GUIDANCE, supra note 61, 48 Fed. Reg. at 34267, ELR ADMIN. MATERIALS at 35048.

105. 583 F. Supp. 653, 660-61 (D. Minn. 1984).

106. Id. at 659-60.

107. 524 F.2d 79, 93, 5 ELR 20640, 20647 (2d Cir. 1975).

108. Id.

109. Toledo EIS, supra note 14, at 1-3 (subhead for section discussing the purpose and need for the project is entitled "Need for the Federal Action").

110. Id. at 1-3, 1-4.

111. Id. at 1-3.

112. Id.

113. Similarly, his supposed holding that the scope of alternatives is defined by the agency's role is contradicted by a binding D.C. Circuit precedent. Natural Resources Defense Council v. Morton, 458 F.2d 827, 834-37, 2 ELR 20029, 20032-33 (D.C. Cir. 1972). It is significant that Judge Thomas does not attempt to distinguish Natural Resources Defense Council and its holding that the scope of alternatives in an EIS cannot be limited by the nature of the agency's authority. That remains the law in the D.C. Circuit and elsewhere.

114. See National Forest Preservation Group v. Butz, 485 F.2d 408, 411-12, 3 ELR 20783, 20784 (9th Cir. 1973); Scientists' Inst. for Pub. Information v. Atomic Energy Comm'n, 481 F.2d 1079, 1088-89, 3 ELR 20525, 20529-30 (D.C. Cir. 1973).

115. See, e.g., Natural Resources Defense Council, 458 F.2d at 834-36, 2 ELR at 20032-33.

116. In Roosevelt Campobello, for example, the court criticized plaintiffs for not challenging the adequacy of the statement of need during the public comment period. 684 F.2d 1041, 1046, 12 ELR 20903, 20905 (1st Cir. 1982).


21 ELR 10701 | Environmental Law Reporter | copyright © 1991 | All rights reserved