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25 J. Land Resources & Envtl. L. 287 (2005)
NEPA Alternatives Analysis: The Evolving Exclusion of Remote and Speculative Alternatives

handle is hein.journals/lrel25 and id is 293 raw text is: NEPA Alternatives Analysis: The Evolving Exclusion of Remote and Speculative Alternatives The rational decision-making process of the National Environmental Policy Act (NEPA) is compromised when agencies consider only a limited range of alternatives to their proposed projects. This Note reviews judicial treatment of agency selections for alternatives they consider in an environmental impact analysis, and identifies danger signals that might indicate a failure of the rational decision-making process. It also suggests approaches a court might take to determine whether, when these signals are present, other alternatives should be included in the analysis to ensure that the government has fulfilled its mandate under NEPA. It suggests specific approaches to identifying reasonable alternatives for consideration when a project's purpose includes quantitative elements. It also discusses how to determine what alternatives can properly be excluded when an agency is asked to permit a project proposed by a private applicant. I. INTRODUCTION A. The National Environmental Policy Act of 1969 The National Environmental Policy Act was signed into law by President Richard Nixon on New Year's Day, 1970.1 Its purpose was: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.2 For most Americans the immediately recognizable effect of NEPA is its requirement for formal, documented consideration of the environmental effects 3 of many government actions. This formal consideration, either as an environmental impact statement (EIS) or its shorter sibling the environmental assessment (EA), has become a familiar part of national life in the thirty-five years since NEPA became law.4 Environmental regulations, symbolized by the National Environmental Policy Act of 1969, Pub. L. No. 91-190, 83 Stat. 852 (1970) [hereinafter NEPAl (codified at 42 U.S.C. §§ 4321-61 (2000)). 2 id. 3 NEPA, Section 102, 42 U.S.C. § 4332. See, e.g. RICHARD A. LtRoFF, A NATIONAL POLICY FOR THE ENVIRONMENT: NEPA AND ITS AFTERMATH 1 (1976) (retelling a joke about Environmental Impact Statements that originally appeared in