Analysis Paralysis: Rethinking the Courts’ Role in Evaluating EIS Reasonable Alternatives
J. Matthew Haws | 2012 U. Ill. L. Rev. 537
When a federal agency proposes to undertake a “major Federal action,” the National Environmental Protection Act (NEPA) requires the agency, as part of an overall Environmental Impact Statement (EIS), to engage in an analysis of reasonable alternatives to that action. Just what constitutes a major federal action or a proper alternatives analysis, however, is the subject of debate. Should the objectives of third party, nonfederal proponents influence which alternatives are considered? What kinds of alternatives are reasonable? Is the major federal action the approval of a project or the project itself? This Note analyzes the different ways courts have approached these issues, focusing on statutory, environmental, efficiency, and common sense considerations. Ultimately, the author suggests that to fully realize NEPA’s goals of public participation and environmentally focused decision making, courts need to reconceptualize their own analysis of reasonable alternatives. The author posits that courts need to work collaboratively with federal agencies and project proponents by adopting a good faith standard of review for alternatives, rejecting the idea that the “purpose and need” statement of an EIS should guide the scope of alternatives, and recognizing a more limited scope for alternatives when nonfederal third parties propose a project.