Themes in the evolution of the state environment policy acts

Urban Lawyer

Volumn 38, Issue 4, 2006, Pages 949-1001

  Selmi, Daniel P ^a  

^a Loyola Law School Los Angeles   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

ENVIRONMENTAL POLICY; LEGISLATION; POLICY MAKING;

EID: 33847114035     PISSN: 00420905     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (336)

1. U.S.C. § 4321 (2006).
2. U.S.C. § 4332(2)(c) (2006).
3. See Philip Michael Ferester, Revitalizing the National Environmental Policy Act: Substantive Adaptations from NEPA's Progeny, 16 Harv. Envtl. L. Rev. 207, 209 (1992) (noting that NEPA "has been described as the environmental 'Ten Commandments,' 'the environmental bill of rights,' and 'an environmental Magna Carta'...").
4. See The Lands Council v. Powell, 395 F.3d 1019 (9th Cir. 2005)
5. Fla. Wildife Fed'n v. U.S. Army Corps of Eng'rs, 401 F. Supp. 2d 1298 (D. Fla. 2005).
6. See Initial Findings and Draft Recommendations of the House Task Force on Updating the National Environmental Policy Act, http://resourcescommittee.house.gov/nepataskforce/report/ nepareport_finaldraft.pd (last visitedSept. 19, 2006) (containing twenty-two recommendations to both federal agencies and to Congress)
7. Tim Reiterman, National Environmental Policy Act Is "at a Crossroads," L.A. Times, July 7, 2005 at 16 ("The House version of the pending energy bill would exempt many oil and gas exploration projects from NEPA review. And a congressional committee is holding public hearings with the stated intention of changing how the law works.")
8. Congressional Task Force Seeks Comment on Proposed Legislative Changes to NEPA, 74 U.S.L.W. LEGAL NEWS NO. 26 (Jan. 17, 2006), at 2410.
9. See Lynton K. Caldwell, Essay: Beyond NEPA: Future Significance of the National Environmental Policy Act, 22 HARV. ENVTL. L. REV. 203, 204 (1998) ("Unlike other environmental statutes, [NEPA] cuts across a broad range of public issues - economic, demographic, ecological, esthetic, and ethical.... It lacks the specificity of the 'thou shall, thou may, or thou shan't provisions of most public laws...'").
10. 42 U.S.C. § 7401 et seq.
11. 33 U.S.C. § 1251 et seq.
12. Id.
13. See, e.g., Arnold W. Reitze, Jr., Air Pollution Control Law: Compliance and Enforcement 569 (2001) ("Modern environmental law began with the Clean Air Act (CAA) Amendments of 1970 and the Federal Water Pollution Control Act (FWPCA) Amendments of 1972.")
14. Christina Coop, Casenote, Harmon Industries, Inc. v. Browner, 28 Ecology L.Q. 253 (2001) ("In the 1970s, Congress enacted the Clean Air Act (CAA), the Clean Water Act (CWA), the Resource Conservation and Recovery Act (RCRA), and many other statutes that frame modern environmental law.").
15. See, e.g., Hope Babcock, The Effect of the United States Supreme Court's Eleventh Amendment Jurisprudence on Clean Water Act Citizen Suits: Muddied Waters, 83 Or. L. Rev. 47, 54-55 (2004): The CWA, like other pollution control laws, uses what I have called elsewhere the state primacy, or dual regulation cooperative federalism model. Under this model, the EPA administrarively delegates its authority to the states to issue standards and administer and enforce the law's permitting requirements through federally approved state programs. The states with approved regulatory programs are eligible to receive federal funds to offset the costs of administering these programs. If the state regulatory program meets some standard of comparability with its federal analog, state laws, state agencies, and state courts replace their federal counterparts. To assure no relaxation in implementation of the federal law's requirements, the EPA oversees state performance of its delegated authority, and retains authority to reassert federal jurisdiction, restrict or condition federal funding of state programs to achieve specific programmatic results, or enforce directly if the agency deems state performance deficient. See also John P. Dwyer, The Role of State Law in an Era of Federal Preemption: Lessons from Environmental Regulation, 60 Law & Contemp. Probs. 203 (1997): Congress's usual approach is to enlist the states in the implementation and enforcement of federal regulatory programs by offering technical and financial assistance to state agencies, and by threatening to cut off federal public works funding or to increase regulatory burdens on industries in uncooperarive states. The federal government does not always get its way - at times the states can be powerful political actors in the federal bureaucracy and Congress - but normally it is able to induce states to cooperate in implementing and enforcing federal environmental policies.
16. See, e.g., Paper, Allied-Industrial, Chemical and Energy Workers Int'l Union v. Cont'l Carbon Co., 428 F.3d 1285, 1296 (10th Cir. 2005) ("In order for the EPA to delegate enforcement authority under the CWA to a state, the state must meet certain public participarion requirements....")
17. BCCA Appeal Group v. EPA, 355 F.3d 817, 826 (5th Cir. 2003) ("Although permitting authority was statutorily vested in the EPA, the agency could delegate its authority to a state if the state's program demonstrated compliance with statutorily enumerated requirements.")
18. See, e.g., Brown v. EPA, 521 F.2d 827 (9th Cir. 1975) (reviewing and overturning Administrator's plan imposed on state under Clean Air Act).
19. 42 U.S.C. § 4321; see Calvert Cliffs' Coordinating Comm., Inc. v. Atomic Energy Coram'n, 449 F.2d 1109, 1112 (D.C. Cir. 1971).
20. The "count" of SEPAs changes in various publications depending on the criteria used. Each of the seventeen jurisdictions here require some preparation of an environmental impact report or environmental impact statement.
21. Cal. Pub. Res. Code §§ 21,000-21,177; Conn. Gen. Stat. §§ 22a-1 to 22a-1h; D.C. Code Ann. §§ 8-109.1 to 8-109; Ga. Code Ann. §§ 12-16-1 to 12-16-8; Hawaii Rev. Stat. §§ 343-1 to 343-8; Ind. Code Ann. §§ 13-12-4-1 to 13-12-4-10; Md. Nat. Res. Code Ann. §§ 1-301 to 1-305; Mass. Gen. Laws Ann. ch. 30, §§ 61, 62-62H; Minn. Stat. Ann. §§ 116D.01-116D.06; Mont. Code Ann. §§ 75-1-101 to 75-1-105; 75-1-201 to 75-1-207; N.Y. Envtl. Conserv. Law §§ 8-0101 to 8-0117; N.C. Gen. Stat. §§ 113A-1113A-13; P.R. Laws Ann. 1121-1127; S.D. Codified Laws Ann. §§ 34A-9-1 to 34A-9-13; Va. Code §§ 3.1-18.8, 10.1-1200 to 10.1-1212; Wash. Rev. Code §§ 43.21C.010 to 43.21C.910; Wis. Stat. Ann. §§ 1.11. The "count" of SEPAs changes in various publications depending on the criteria used. See Ferester, supra note 3, at 209 ("Twenty-eight states enacted 'little NEPAs' that closely paralleled the federal statute"). Each of the seventeen jurisdictions just cited require some preparation of an environmental impact report or environmental impact statement.
22. See, e.g., Nicolas A. Robinson, SEQRA's Siblings: Precedents from Little NEPAs in the Sister States, 46 Alb. L. rev. 1155 (1982);
23. David Sive & Mark A. Chertok, "Little NEPAs" and Their Environmental Impact Assessment Procedures, SK094ALIABA 1175 (2005), http://www.sprlaw.com/pdf/spr_little_nepa_ali_aba_0605.pdf (last visited Sept. 19, 2006).
24. See, e.g., Clifford Rechtschaffen, Advancing Environmental Justice Norms, 37 U.C. Davis L. Rev. 95, 120 (2003) ("Environmental review statutes such as the National Environmental Policy Act (NEPA) require federal agencies to analyze the effects of all federal projects that have a significant environmental impact. Sixteen states, plus the District of Columbia and Puerto Rico, have adopted similar statutes, known as state environmental policy act (SEPAs)...").
25. The SEPAs have been the subject of numerous law review articles. They are collected at Daniel R. Mandelker, Nepa Law and Litigation (Callahan 2005) § 12.01 n.5 Daniel P. Selmi & Kenneth A. Manaster, State Environmental Law § 10A:1 n.8 (West 2005).
26. See, e.g., Stewart E. Sterk, Environmental Review in the Land Use Process: New York's Experience with SEQRA, 13 Cardozo L. Rev. 2041, 2041 (1992) ("[W]hile NEPA's primary concern was government projects, much of the focus of the little NEPAs has been on government approval of private projects....").
27. See, e.g., Michael B. Gerrard et al., Environmental Impact Review in New York § 3.05[3][a] (2005 Supp.) ("While under NEPA an EIS need be prepared only for 'major Federal actions significantly affecting the quality of the human environment,' SEQRA requires preparation of an EIS for any action that 'may have a significant effect on the environment....") (emphasis in original)
28. Jeffrey L. Carmichael, Note, The Indiana Environmental Policy Act: Casting a New Role for a Forgotten Statute, 70 IND. L.J. 613, 629 (1995) (the Washington SEPA has a lower threshold than NEPA for determining whether review under the SEPA is required).
29. See, e.g., ASARCO, Inc. v. Air Quality Coal., 601 P.2d 501 (Wash. 1979) ("while NEPA and SEPA are substantially similar in intent and effect, ... the public policy behind SEPA is considerably stronger than that behind NEPA.") (emphasis added)
30. Ferester, supra note 3, at 209 (states "sought to improve upon NEPA" by, among other things, "expand[ing] the substantive foundation of their environmental planning laws, sometimes allowing the judiciary to review the merits of administrative decisions made pursuant to EISs.")
31. John W. Caffry, Article, The Substantive Reach of SEQRA: Aesthetics, Findings, and Non-Enforcement of SEQRA's Substantive Mandate, 65 Alb. L. Rev. 393, 394 (2001) ("This policy of avoiding adverse environmental impacts is one of the principal differences between SEQRA and its 'parent' statute, the National Environmental Policy Act....").
32. The conclusions in the article are those of the author. They benefited greatly, however, from presentations made by other individuals at the "First Annual Conference on State-Level Environmental Impact Assessment" sponsored by the American Bar Association Section on Environmental, Energy and Resources and held on May 30, 2005. Where observations were specifically made by presenters, their papers are cited and are in the possession of the author.
33. Gerrard et al., supra note 21;
34. Stephen L. Kostka & Michael H. Zischke, Practice Under the California Environmental Quality Act (1993, update 2005)
35. Richard L. Settle, The Washington State Environmental Policy Act: a Legal and Policy Analysis (1987, rev. ed. 2002).
36. See Stephen M. Johnson, NEPA and SEPA's in the Quest for Environmental Justice, 30 Loy. L.A. L. Rev. 565, 568 (1997) ("[W]hen Congress enacted NEPA it envisioned NEPA as a model for state environmental review laws, but in the truest sense of cooperative federalism, state laws can now be used as models for changes to NEPA").
37. Mandelker, supra note 19, § 1.1.
38. Dinah Bear, The National Environmental Policy Act: Its Origins and Evolutions, 10 Nat. Resources & Env't 70 (Fall 1995)
39. Richard, A. Liroff, A National Policy for the Environment: Nepa and its Aftermatu 34-35 (1976) (describing Congress's failure to think the legislation through and suggesting that had Congress foreseen what NEPA would become it would never have passed the bill)
40. Lynn G. Llewellyn & Clare Peiser, Nat'l Bureau of Standards, Nepa and the Environmental Movement: A Brief History 24 (NBSIR 73-218, 1973) (repor by National Bureau of Standards to EPA)
41. Frederick R. Anderson, Nepa in the Courts: A Legal Analysis of the National Environmental Policy Act (1973).
42. Denis Binder, NEPA, NIMBYs and New Technology, 25 Land & Water L. Rev. 11, 11 (1990) ("As NEPA reaches twenty, it is amazing to look back and see how this little-considered statute came to the forefront in a wide variety of environmental confiicts ...").
43. 42 U.S.C. § 4332: (2) Al1 agencies of the Federal Government shall - (A) utilize a systematic, interdisciplinary approach which will insure the integrated use of the natural and social sciences and the environmental design arts in planning and in decision making which may have an impact on man's environment; (B) identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision making along with economic and technical considerations...
44. SEPAs either call for the preparation of an "Environmental Impact Statement" or an "Environmental Impact Report." In this article, for convenience the two are referred two interchangeably as an "EIS."
45. 42 U.S.C. § 4332: (2) All agencies of the federal government shall... (C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by Lhe responsible official on - (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.
46. See Ferester, supra note 3, at 207 (noting that NEPA is "superficially simple").
47. Probably the most influential of the early decisions was Calvert Cliffs' Coordinating Comm., Inc. v. U.S. Atomic Energy Comm'n, 449 F.2d 1109 (D.C. Cir. 1971).
48. 40 C.F.R. §1500.1 (2006).
49. See infra text accompanying notes 48-59.
50. See Molokai Homesteaders Coop. Ass'n v. Cobb, 629 P.2d 1134, 1144 (Haw. 1981) ("The federal decision, however, is not surprising in light of NEPA's narrower treatment of relevant environmental impacts.").
51. See The Vill. Dev. Co., Inc. v. Sec'y of the Executive Office of Envtl. Affairs, 571 N.E.2d 361, 370 n. 11 (Mass. 1991) ("NEPA's jurisdictional test is much broader than that of MEPA ... and it does not have an analogous subject matter jurisdiction limitation. Therefore, the comparison between MEPA and NEPA is of limited value.").
52. Guidelines for the Implementation of the California Environmental Quality Act, Cal. Code Regs. tit. 14, § 1500 et seq.
53. N.Y. State Dep't of Envtl. Conservation, State Environmental Quality Review Act (SEQRA) Handbook (2d ed. 1992).
54. Wash. State Dep't of Ecology, State Environmental Policy Act Handbook (1998, updated 2003).
55. Mandelker, supra note 19, § 1.5 ("the purpose of NEPA was to modify the decision making of federal agencies by requiring them to consider environmental values.").
56. 42 U.S.C. § 4332(2)(B).
57. James Allen, Note, NEPA Alternatives Analysis: The Evolving Exclusion of Remote and Speculative Alternatives, 25 J. Land Resources & Envtl. L. 287, 289 (2005) ("It cannot be disputed that NEPA's effect on the government's decision-making process has been enormous.").
58. Kathryn C. Plunkett, Comment, Local Environmental Impact Review: Integrating Land Use and Environmental Planning Through Local Government Impact Reviews, 20 Pace Envtl. L. Rev. 211, 248 (2002) ("The environmental review process is criticized for being too time-consuming and costly. Duplication can occur between the environmental review process and development regulations.").
59. Michael B. Gerrard, Litigation Under the "Little NEPA" Laws (prepared for Am. Bar Ass'n Envtl. Impact Assessment Comm., First Annual "Little NEPA" Conference (May 30, 2005) at 3 ("the four states with the highest per capita number of decisions are all among the five states with the little NEPAs of broadest applicability.") (on file with author)).
60. See Sterk, supra note 20, at 2041 ("A study of the [environmental review] process leads one naturally to ask whether comparable environmental benefits might be available at lower costs.").
61. N.C. Gen. Stat. § 113A-9 (2006) (SEPA applies to "action involving expenditure of public moneys or use of public land ...").
62. Haw. Rev. Stat § 343-5(a) (2006) (listing nine subcategories).
63. Ind. Code § 13-1-10-6 (2006). The law's limited coverage has meant that the law largely is not a factor in decision making. See Carmichael, supra note 21, at 614 ("Indiana's statute... has fostered no litigation. Indiana's chief environmental administrative law judge has stated that the Act has never been a factor in any of his decisions...").
64. Conn. Gen. Stat. § 22a-1c (2006) ("actions which may significantly affect the environment" defined to mean "individual activities or a sequence of planned activities proposed to be undertaken by state departments, institutions or agencies, or funded in whole or in part by the state ...").
65. Omdahl v. Hadler, 459 N.W.2d 355, 362 (Minn. Ct. App. 1990) ("Furthermore, the rules specifically exempt proposals and enactments of the legislature. Minn. Rules 4410.4600 subd. 26 (1989).").
66. See infra text accompanying note 194.
67. Mass. Gen. Laws Ann. tit. 30, § 62E (West 2006). Boston Pres. Alliance, Inc. v. Sec'y of Envtl. Affairs, 487 N.E.2d 197, 200 (Mass. 1986) ("Within thirty days after issuance of notice of the receipt of such notification, the secretary shall consult with the person or agency proposing the project and the agency, if any, from which a permit or financial assistance is or may be sought and shall issue a certificate stating whether an environmental impact report is required").
68. N.Y. Envtl. Conserv. Law § 8-0105(4)(i) (2006) ("projects or activities"); id. at § 8-0105(3) ("agency" includes state and local agencies). See Gerard et al., supra note 21, § 2.01[2] ("Under this broad and sweeping definition, a seemingly limitless variety of activities, including approval of small and large-scale residential developments, shopping centers, landfills, stadiums, mines, school buildings, and work affecting historic structures" have fallen under SEQRA).
69. Cal. Pub. Res. Code § 21100 ("projects" of state agencies); id. at § 21151 ("projects" of local agencies).
70. Wash. Rev. Code § 43.21C.031(2)(a)(i) (2006) (includes "planned actions" adopted by county or city under specified statute); see, e.g., Noble Manor Co. v. Pierce County, 288, 943 P.2d 1378, 1388 (Wash. 1997) ("if a party proceeds with a traditional subdivision of the property ... a public hearing process is required and SEPA applies as well ...:).
71. See Patricia E. Salkin, Afterward: SEQRA's Silver Anniversary: Reviewing the Past, Considering the Present, and Charting the Future, 65 Alb. L. Rev. 577, 581 (2001) (noting that, in New York, there are approximateIy 1600 units of local government that must comply with SEQRA).
72. See Selmi & Manaster, supra note 19, § 10A:7 ("Undoubtedly the most litigated issue under SEPAs is whether an agency has made an erroneous 'threshold determination' that it need not prepare an EIS in a particular situation.").
73. 42 U.S.C. § 4332(2)(C).
74. Conn. Gen. Stat. 22a-1b(c) ("Each state department, institution or agency responsible for the primary recommendation or initiation of actions which may significantly affect the environment shall in the case of each such proposed action make a detailed written evaluation of its environmental impact before deciding whether to undertake or approve such action.").
75. See Keith H. Hirokawa, The Prima Facie Burden and the Vanishing SEPA Threshold: Washington's Emerging Preference for Efficiency over Accuracy, 37 Gonz. L. Rev. 403, 405 (2001/2002) (citing a "breakdown between SEPA's goals and duties [that] has appeared at the threshold stage in the environmental review process.").
76. Cal. Pub. Res. Code § 21100; see also N.Y. Envtl. Conserv. Law § 8-0109(2) ("may").
77. Friends of "B" Street v. City of Hayward, 106 Cal. App. 3d 988, 1002 (1980). ("If there was substantial evidence that the proposed project might have a significant environmental impact, evidence to the contrary is not sufficient to support a decision to dispense with preparation of an EIR and adopt a negative declaration. ...").
78. See Cal. Code Regs. tit. 14, § 15064.7(a) (2006).
79. Bowman v. City of Berkeley, 122 Cal App. 4th 572, 594 (2004) ("Here, the City found that the project would not '[s]ubstantially degrade the existing visual character or quality of the site and its surroundings' within the meaning of Appendix G of the guidelines in part because '[c]onstruction of this project is subject to design review and approval prior to issuance of building permits.' This finding was supported by the record of extensive design review in this case, was sufficient to address the Guideline criterion, and was consistent with a reasonable and practical reading of CEQA.").
80. See John Watts, Comment, Reconciling Environmental Protection with the Need for Certainty: Significance Thresholds for CEQA, 22 Ecology L.Q. 213, 216 (1995) ("CEQA's primary burden on business is not the direct cost of EIRs ... but instead the uncertainty that the statute engenders. Businesses often do not know how long EIR review will take ...").
81. See, e.g., Thomas Schmid, Casenote, Defining "Significance": Balancing Procedural and Substantive Judicial Review of Negative Declarations Under the Minnesota Environmental Policy Act, 10 Mo. Envtl. L. & Pol'y Rev. 104, 110 (2003) ("Minnesota case law has produced inconsistent results and approaches to judicial review of an agency's issuance of a negative declaration.").
82. Unsurprisingly, disputes of this kind are particularly prevalent where the agency places mitigation measures on the project and then prepares a "mitigated determination of nonsignificance" concluding no EIS is necessary. See Hirokawa, supra note 61, at 408 ("the agency may impose conditions to mitigate the significant impacts and, so long as those conditions promise to lower the environmental impacts below the threshold of significance, the agency may issue a Mitigated Determination of Nonsignificance ("MDNS") ...").
83. See David Sive & Mark A. Chertok, "Little NEPAs" and Their Environmental Impact Assessment Procedures (prepared for the American Bar Association Environmental Impact Assessment Committee, First Annual "Little NEPA" Conference (May 30, 2005) at 8 ("Under a number of the Little NEPAs, it has been held that the threshold for requirement of an EIS is lower than the federal threshold. Statutory underpinning for such a ruling is found in the use by several Little NEPA's of the term, 'may,' with respect to the impact of ah action.") (on file with author)).
84. Cal. Code Regs. tit. 14, §§ 15061(b), 15260-15285, 15300-15333; see also Wash. Rev. Stat. § 43.21C.110(1)(a) ("The types of actions included as categorical exemptions in the rules shall be limited to those types which are not major actions significantly affecting the quality of the environment.").
85. Cal. Code Regs. tit. 14, § 15300.2(c) ("A categorical exemption shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.")
86. See Infrastructure Bond Package Contains Money for Air Quality Projects and CEQA Waivers, 19 Calif Envtl. Insider No. 23 (May 16, 2006) ($37.5 billion package of bond measures "provides for walvers of CEQA... for a number of transportation, flood control, and levee repair projects. ..."). The same phenomenon occurs at the federal level.See William H. Rodgers, Jr., The Washington Environmental Policy Act, 60 Wash. L. Rev. 33, 45 (1984) (noting the NEPA exemptions and concluding that "[o]ne is tempted to invoke sheer interest group politics as the most satisfactory explanation for the generous and sometimes implausible exemptions extended to a number of agencies.").
87. See Long Beach Sav. & Loan Ass'n v. Long Beach Redev. Agency, 188 Cal. App. 3d 249, 254 (1986) ("In the instant case, defendants are alleged to have improperly used a document known as a mitigated negative declaration to circumvent the EIR requirement.").
88. 6 N.Y. Envtl. Conserv. Law § 617.4 (2006); see Gerrard et al., supra note 21, § 2.0113] at 2-5 ("The SEQRA regulations establish three categories of actions... and differentiate their procedural treatment under SEQRA.").
89. Id. § 617.4(b).
90. Id. § 617.4(a)(1).
91. Id. § 617.2.
92. See The Seqr Handbook, supra note 39, 16.
93. Id. § 617.5(a).
94. Id.
95. See Mass. Regs. Code tit. 301, § 11.01(2)(b) (2006) (review thresholds "identify categories of projects or aspects thereof of a nature, size or location that are likely, directly or indirectly, to cause damage to the environment").
96. See id. ("the review thresholds determine whether MEPA review is required"); § 11.03 ("MEPA review is required when one or more review thresholds are met or exceeded....").
97. Minn. Stat. Ann. § 116D.04, subd. 2a(a) ("The board shall by role establish categories of actions for which environmental impact statements and for which environmental assessment worksheets shall be prepared as well as categories of actions for which no environmental review is required..."); N.C. Gen. Stat. Ann. § 113A-8(c) (ordinance requiring developers to submit detailed environmental statements "shall establish minimum criteria to be used in determining whether a statement of environmental impact is required" and also calling for "exceptions to the minimum criteria established by ordinance.").
98. Mass. Regs. Code tit. 301, § 11.04 (so-called "Fail-Safe Review" provides that, upon petition by an agency or ten or more persons, the Secretary may require a review under the Massachusetts Environmental Policy Act).
99. See Watts, supra note 66, at 245 (discussing "standardized thresholds" used in certain non-SEPA state statutes and noting that "projects are frequently designed so as to just barely avoid the threshold for review.").
100. See supra text accompanying note 44.
101. See supra text accompanying notes 35-37.
102. Mont. Admin. R. § 4.2.327 ("(3) Whenever the agency proposes or participates in an action that requires preparation of an EIS under both the National Environmental Policy Act and MEPA, the EIS must be prepared in compliance with both statutes and associated rules and regulations").
103. Haw. Code. R. § 11-200-25 (2005) (state and federal agencies shall "cooperate ... to the fullest extent possible to reduce duplication between federal and state requirements.").
104. 14 C.F.R. § 1506.2(b) (2006) ("[A]gencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements.").
105. Conn. Gen. Stat. § 22a-1f (a) (2006) ("Environmental impact evaluations need not be prepared for projects for which environmental statements have previously been prepared pursuant to other state or federal laws or regulations.").
106. Mass. Gen. Laws Ann. ch. 30, § 62G (2006) ("In the case of projects for which an environmental impact statement is required under the National Environmental Policy Act of 1969, draft and final federal environmental impact statements may be submitted in lieu of environmental impact reports.").
107. N.Y. Envtl. Conserv. Law § 8-0111(1) (McKinney 2006).
108. Id. § 8-0111(2).
109. N.Y. Envtl. Conserv. Law § 8-0111 (McKinney 2006) (In the Practice Commentary following the statute, Phillip Weinberg writes "to impose two separate environmental impact statement processes would amount to an environmental version of cruel and unusual punishment.").
110. See generally Daniel R. Mandelker, Melding State Environmental Policy Acts with Land-Use Planning and Regulations," in 2 Modernizing State Planning Statutes: The Growlng Smart Working Papers, Planning Advisory Service Report No. 480-81 (Am. Planning Ass'n 1998)
111. Kathryn C. Plunkett, The Role of Local Environmental Impact, in New Ground: The Advent of Local Environmental Law 299 (J. Nolan, ed., 2003)
112. Kenneth Pearlman, State Environrnental Policy Acts: Local Decision Making and Land Use Planning, 43 J. Am. Inst. Planners 42 (1977).
113. See, e.g., St. Johns/St. Augustine Comm. v. City of St. Augustine, 909 So. 2d 575, 577 (Fla. Dist. Ct. App. 2005) ("The intent of the legislature is that all development be in conformity with comprehensive plans and regulations and that all land development regulations be consistent with comprehensive plans:")
114. Gatri v. Blane, 962 P.2d 367, 373 (Haw. 1998) ("[T]he county general plan does have the force and effect of law insofar as the statute requires that a development within the SMA must be consistent with the general plan.").
115. See, e.g., Wash. Rev. Code § 43.21C.034 ("Lead agencies are authorized to use in whole or in part existing environmental documents for new project or nonproject actions, if the documents adequately address environmental considerations set forth in [the Washington Environmental Policy Act].").
116. See Plunkett, supra note 44, at 249: By conducting environmental impact review at the planning stage, instead of the project stage, many of the procedural drawbacks of project-by-project environmental impact review can be avoided. If extensive environmental analysis is conducted at the planning stage, no additional environmental review need be conducted at the project stage. This consistent approach to environmental impact review can result in beneficial effects for both municipalities and developers, while long-term, comprehensive environmental protection is fostered.
117. See id. (if extensive environmental review is conducted at the planning stage, "subsequent project review is limited, saving the time and resources necessary to conduct full EIR processes for each project" and citing use of "master environmental impact reports" "generic environmental impact statements," and "planned actions.").
118. Professor Rodgers noted this interplay between earlier and later analysis in commenting on Washington case law requiring analysis at both stages. See Rodgers, supra note 72, at 54 (observing that the Washington Supreme Court approved a "bare bones" EIS on an earlier EIS "where the nature of the project is such that later decisionmaking sequences allow a more detailed assessment.").
119. See infra text accompanying notes 132-42.
120. Cal. Pub. Res. Code § 21068.5 (2006).
121. Hirokawa, supra note 61, at 355 ("In certain situations, SEPA regulations do seek efficiency by allowing agencies to 'phase' and 'tier' environmental review. Phased review allows the lead agency to study adverse environmental impacts effectively where separate determinations cover the same impacts and projects. Agencies have flexibility in phasing decisions in the non-project planning stages.").
122. See supra text accompanying note 99.
123. See supra text accompanying note 98-104.
124. See generally Michael Allan Wolf, Earning Deference: Reflections on the Merger of Environmental and Land-Use Law, 20 Pace Envtl. L. Rev. 253 (2002).
125. Stewart E. Sterk, The Federalist Dimension of Regulatory Takings Jurisprudence, 114 YaLe L.J. 203, 233-34 (2004) ("land use planning is often the most important function delegated to local governments....")
126. Richard Briffault, Our Localism: Part I: The Structure of Local Government Law, 90 Colum. L. Rev. 1, 3 (1990) ("Land use control is the most important local regulatory power:").
127. See State Environmental Policy Act Handbook, supra note 40, at 75 ("It is not possible to meet the goals or requirements of [the Growth Management Act] or to make informed planning decisions without giving appropriate consideration to environmental factors.").
128. See Mandelker, supra note 19, at 12-2 ("This extension of the impact statement requirement to private development also subject to the land use control process is a major difference between the state and federal legislation."); see also Magee, Environmental Impact Statements: Applications to Land Use Control, 10 Zoning & Planning L. Rep. 113 (1987).
129. See, e.g., Price v. Obayashi Haw. Corp., 914 P.2d 1364, 1377 (Haw. 1996) ("[I]n the area of water supply infrastructure, the EIS identifies the existing wells, pumps, transmission lines, and storage facilities. Waste water treatment facilities and solid waste disposal facilities are also discussed in detail.").
130. Santiago County Water Dist. v. County of Orange, 118 Cal. App. 3d 818, 829 (1981). ("Our review of the final EIR in this case leads us to conclude that it does not meet the standards of an adequate EIR, because of its failure to give sufficient information concerning the delivery of water to the proposed sand and gravel mine.").
131. See Arthur Ientilucci, SEQRA: Down the Garden Path or Detour for Development, 6 Alb. L. Envtl. Outlook J. 102, 104 (2002): Whether it is an adequate substitute or not, SEQRA is still the most useful mechanism available that comes close to accomplishing what comprehensive and regional planning are supposed to accomplish. It causes both decision-makers and applicants aiike to look beyond the boundaries of individual development sites and to confront and consider the broader impacts of individual projects and the cumulative impacts of concurrent projects on entire neighborhoods, communities and in some cases regions.
132. See Sierra Club v. San Joaquin Local Agency Formation Comm'n, No. C038622, 2002 WL 31412526 at *6 n.10 (Cal. Ct. App. Nov. 21, 2002) ("Areas where significant environmental impacts were found included land resources, water resources, ... impacts on neighboring cities and counties, and recreation.").
133. See Citizens Advocating Responsible Dev. v. Kandiyohi County Bd. of Comm'rs, 713 N.W.2d 817 (Minn. Ct. App. 2006) ("our analysis of the rules' language and framework and the legislative intent evidence indicates that the 'cumulative potential effects' and 'cumulative impact' criteria both require an RGU to examine whether a given project may have a significant environmental effect when considered in conjunction with other projects.")
134. see also Save the Pine Bush, Inc. v. City of Albany, 117 A.D.2d 267, 271 (N.Y. App. Div. 1986), aff'd as modified, 70 N.Y.S. 2d 611 (1986) (regulation "firmly establishes that cumulative impact can, in appropriate cases, be a relevant area of environmental concern, and based upon the nature of the Pine Bush and the number of pending projects in the Pine Bush, we are of the view that this is such a case.").
135. See Salkin, supra note 57, at 580 (observing that critics of SEQRA were calling for "a better integration of SEQRA into the local land use decision making process, or, alternatively, the exemption of local zoning from the SEQRA process. ...:).
136. Cal. Oak Found. v. City of Santa Clarita, 133 Cal. App. 4th 1219, 1236 (Cal. Ct. App. 2005) (final EIR contains inadequate discussion of water supply).
137. Klickitat County Citizens Against Imported Waste v. Klickitat County, 820 P.2d 390, 405 (Wash. 1993) ("We therefore hold the EIS for the 1990 Plan Update was adequate as a matter of law under SEPA in its discussion of the impact of developing a large regional landfill on the cultural and historical environment of the Yakima Indian Nation in Klickitat County.").
138. Bd. of County Comm'rs v. City of Aurora, 62 P. 3d 1049, 1054 (Colo. Ct. App. 2002) ("Here, the court concluded that the report was inadequate because the map failed to depict the present streets, major trunk water mains, sewer interceptors and outfalls, other utility lines and ditches, and the proposed extension of such streets and utility lines in the vicinity of the proposed annexation. For that reason, the court voided the annexation.").
139. See, e.g., South County Citizens for Responsible Growth v. City of Elk Grove, No. C042302, 2004 WL 219789 at *8 (Cal. Ct. App. Feb. 5, 2004) ("It seems obvious that preservation of farmland relatively isolated from urban land uses would be cheaper but less efficacious than preservation of farmland that is pivotal in the effort to prevent urban sprawl. These are matters that can and should be addressed through an EIR with an opportunity for public response.").
140. See text accompanying note 41, supra.
141. See, e.g., Polygon Corp. v. City of Seattle, 578 P.2d 1309, 1313 (Wash. 1978) ("SEPA has been said to 'overlay' the requirements which existed prior to its adoption").
142. See Scott A. Thornton, Comment, Cumulative Impacts in Environmental Review: The New York Standpoint, 9 Pace Envtl. L. Rev. 253 (1991).
143. Laurel Hills Homeowners Ass'n v. City Council, 83 Cal. App. 3d 515, 526 (1976) (upholding agency's finding that "cumulative generation of traffic" was an overriding consideration that supported agency's approval of a project where the agency expressly found that "the regional traffic problem was an issue of citywide concern for which no adequate solution currently existed.").
144. Hirokawa, supra note 61, at 368: [W]hen a single project application is presented to a hearing examiner, council, commission, or court, common sense seems to dictate that a cumulative impact study would impose disproportionately burdensome duties far exceeding the boundaries of the application at hand.
145. See Caffry, supra note 22, at 416 ("Segmentation, which is generally not permitted, occurs when an action is split into two or more parts for purposes of SEQRA review so as to minimize its apparent impacts.").
146. Forman v. Trs. of State Univ. of N.Y., 303 A.D.2d 1019 (N.Y. App. Div. 2003) ("The court properly rejected petitioner's contention that the SUNY respondents improperly segmented the housing project at issue from other campus housing projects in order to avoid the necessity of preparing an EIS.")
147. see Buerger v. Town of Grafton, 235 A.D.2d 984 (N.Y. App. Div. 1997) (no segmentation found where developer sought to develop an area of a large parcel and there was no indication that the proposed subdivision was the first phase of a larger project). But see DeFreestville Area Neighborhoods Ass'n v. Town Bd. of N. Greenbush, 299 A.D.2d 631 (N.Y. App. Div. 2002) (board improperly segmented zoning phase from development phase of project).
148. See Long Island Pine Barrens Soc'y v. Planning Bd. of Brookhaven, 606 N.E.2d 1373 (N.Y. 1992). This case is discussed in text accompanying notes 222-26, infra, as part of a discussion concerning the mismatch between the approving government agency and other agencies. The case is also discussed in Selmi & Manaster, State Environmental Law § 10A: 10, at 10A-36.
149. Cal. Code Regs. tit. 14, § 15125 (2006): An EIR must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time the notice of preparation is published, or if no notice of preparation is published, at the time environmental analysis is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a lead agency determines whether an impact is significant. The description of the environmental setting shall be no longer than is necessary to an understanding of the significant effects of the proposed project and its alternatives.
150. Save Our Peninsula Comm. v. Monterey County Bd. of Supervisors, 87 Cal. App. 4th 99, 127 (2001) ("In assessing the impact of [a] rezoning, it is only logical that the local agency examine the potential impact on the existing physical environment. In the context of that case our meaning was that the agency must examine the impact of the project as against the physical conditions on the subject property, as opposed to measuring the potential impact against a draft general plan.").
151. 42 U.S.C.A. § 4332 (2006). The closest NEPA comes to referring to the public is: Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of Title 5, and shall accompany the proposal through the existing agency review processes. Id.
152. 40 C.F.R. § 1503.1 (a) (2006) ("After preparing a draft environmental impact statement and before preparing a final environmental impact statement the agency shall: ... [r]equest comments from the public, affirmatively soliciting comments from those persons or organizations who may be interested or affected.").
153. See Kevin H. Moriarity, Note, Circumventing the National Environmental Policy Act: Agency Abuse of the Categorical Exclusion, 79 N.Y.U.L. Rev. 2312, 2335 (2004) ("[t]he Forest Service attempted ah end-run around the most important aspect of NEPA: public participation."). See generally Wendy Nelson Espeland, Bureaucratizing Democracy, Democratizing Bureaucracy, 25 Law & Soc. Inquiry 1077, 1083 (2000) ("NEPA was passed in an effort to make federal agencies ... be more responsive to new constituents..."). But see Jim Rossi, Participation Run Amok: The Costs of Mass Participation for Deliberative Agency Decisonmaking, 92 Nw. U. L. Rev. 173, 225 (1997) (suggesting adverse results from mass participation in NEPA).
154. Id.
155. See, e.g., Code Mass. Regs. tit. 301, § 11.08(3) ("An Agency undertaking a Project may hold public hearings, informal workshops, or public meetings at appropriate times prior to and during preparation of an EIR.").
156. Haw. Code R. § 11-200-9(8) (2005) ("Receive and respond to public comments in accordance with: section 11-200-9.1 for draft environmental assessments for anticipated negative declaration determinations; or, section 11-200-15 for environmental assessments for preparation notices.").
157. Conn. Agencies Regs. § 22a-1a-9(a) (2006): A sponsoring agency shall review all comments submitted on an environmental impact evaluation and any other pertinent information it obtains following circulation of an environmental impact evaluation, and conduct further environmental study and analysis or amend the evaluation if it determines appropriate. In all cases, the sponsoring agency shall prepare responses to the substantive issues raised in review of the environmental impact evaluation, and shall forward such responses, as well as any supplemental materials or amendments and all comments received on the evaluation to the Office of Policy and Management.
158. State Environmental Policy Handbook, supra note 40, at 59: The lead agency must consider comments received during the draft EIR comment period, and respond to them in the final EIS. Lead agency responses to comments should be as specific and informative as possible. Possible responses are to: (1) explain how alternatives, including the proposed action, were modified; (2) identify new alternatives that were created; (3) explain how the analysis was supplemented, improved, or modified; (4) make factual corrections; or (5) explain why the comment does not warrant further agency response.
159. Wash. Admin. Code § 1970-11-610(5) (006) ("[a] public hearing for such comments shall be held if, within thirty days of circulating its statement of adoption, a written request is received from at least fifty persons who reside within the agency's jurisdiction or are adversely affected by the environmental impact of the proposal.").
160. Conn. Gen. Stat. Ann. § 22a-1d (West 2006) ("The sponsoring agency preparing an environmental impact evaluation shall hold a public hearing on the evaluation if twenty-five persons or an association having not less than twenty-five persons requests such a hearing within ten days of the publication of the notice in the Environmental Monitor.").
161. N.C. Admin. Code tit. 1, § 25.0604 (2006) ("The State Project Agency may hold a public hearing to complement the EIS process where significant public interest is expressed in the proposed activity and where such a hearing would be helpful in increasing public awareness, clarifying the issues, and gathering additional public comment. Notice of the public hearing shall be published in the Environmental Bulletin").
162. Emmington v. Solano County Redev. Agency, 195 Cal. App. 3d 491, 503 (1987) ("The Supreme Court has recently stressed the 'privileged position' that members of the public hold in the CEQA process.").
163. Ultramar, Inc. v. S. Coast Air Quality Mgmt. Dist., 17 Cal. App. 4th 689, 705 (1993) ("we cannot overemphasize the importance of full compliance with all notice provisions of applicable law, so that there will be maximum public comment and involvement. Given the significance of whatever path is followed, any decision must be subject to full public review before its implementation.").
164. For example, Hawaii agencies have "postcard" deluges of voluminous and repetitive public comments. See Lisa A. Bail, The Voluminous and Repetitious Public Comment Issue Under the Hawaii Environmental Policy Act, 1 (prepared for American Bar Assn. Envtl. Impact Assessment Committee, First Annual "Little NEPA" Conference (May 30, 2005) (on file with author)): The requirement under the Hawai'i Administrative Rules that individualized letters responding to public comments be created, mailed and reproduced has created the incentive for "comment bombing." Project opposition to projects has been expressed through "supermarket postcard" campaigns, resulting in the submittal of voluminous and repetitious comments from individuals, many of whom have never read the draft Environmental Impact Assessment ... document upon which they are commenting.
165. Stephanie Tai, Three Asymmetries of Informed Environmental Decisionmaking, 78 Temp. L. Rev. 659, 678 (2005) ("[P]ublic participation mechanisms are seen as a step towards the development of civic virtues by providing a means for citizens to become involved in the regulatory decision-making process. Involvement in the decision-making process is believed to foster membership in the political community and enhance the ideals of democracy as a whole.").
166. Wash. Admin. Code 197-11-560 (2006): (1) The lead agency shall prepare a final environmental impact statement whenever a DEIS has been prepared, unless the proposal is withdrawn or indefinitely postponed. The lead agency shall consider comments on the proposal and shall respond by one or more of the means listed below, including its response in the final statement. Possible responses are to: (a) Modify alternatives including the proposed action; (b) develop and evaluate alternatives not previously given detailed consideration by the agency; (c) supplement, improve, or modify the analysis; (d) make factual corrections; or (e) explain why the comments do not warrant further agency response, citing the sources, authorities, or reasons that support the agency's response and, if appropriate, indicate those circumstances that would trigger agency reappraisal or further response.
167. See, e.g., Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 Colum. L. Rev. 1, 113 (1998) ("As in other quasi-judicial settings, testimony is subject to cross-examination and rebuttal.").
168. See Johnson, supra note 25, at 579, suggesting that delay alone provides benefits under NEPA: Since NEPA can delay the federal government from taking actions that may disparately impact communities, the law can provide communities with valuable time to organize and to provide information to the government concerning a proposed action's potentially adverse impacts. The delay may also provide communities additional time to explore alternative ways to prevent the proposed action.
169. See Bail, supra note 144.
170. Williamsburg Around the Bridge Block Ass'n v. Giuliani, 223 A.D.2d 64, 73 (N.Y. App. Div. 1996) ("[A] key element in the environmental review process is the public review and comments on the Draft Environmental Impact Statement ... so as to 'draw on the reservoir of public information and expertise which SEQRA intends to tap.'").
171. Cal. Code Regs tit. 14, § 15083 (2006) ("Prior to completing the draft EIR, the lead agency may also consult directly with any person or organization it believes will be concerned with the environmental effects of the project. Many public agencies have found that early consultation solves many potential problems that would arise in more serious forms later in the review process. This early consultation may be called scoping.").
172. Salkin, supra note 57, at 585 (noting Professor Weinberg's suggestion that "both citizens and advocacy groups... take advantage of the 'golden opportunity' to participate in the SEQRA process and see to it that the science, tbe economics, and the law are all in order before a project moves forward," thereby ensuring that the SEQRA process is not a "two-handed card game between the local government and the sponsor of the project.' ...").
173. See Jonathan Poesner, A Civil Republican Perspective on the National Environmental Policy Act's Process for Citizen Participation, 26 Envtl. L. 53, 57 (1996) (discussing the "synoptic" method of decision making "in which professionals exchange data so that they can then apply preset scientific rules to determine tbe optimal decision" and suggesting that "[P]ublic participation is consistent with the synoptic process only so long as it conforms to the scientific model.").
174. David E. Seidemann, Insufficient Accountability: Case Study of the Recycling Plan o fa Public Interest Research Group, 3 Buff. Envtl. L.J. 221, 222 (1995) ("Over the past several decades, as the public's faith in the capacity of government and industry to behave responsibly has diminished, the public has turned increasingly to environmental advocacy groups for help in holding government and industry accountable. Environmental groups have become useful watchdogs because they have both the technical expertise and the inclination to monitor those segments of society in which the public has lost faith ..."). But see Johnson, supra note 25, at 600 ("One of the major impediments to informed and meaningful public participation in the NEPA environmental review process is the highly technical nature of environmental review documents.").
175. See Poisner, supra note 153, at 79 ("NEPA public participation takes the form of pseudo peer review science, in which the agency uses public participation to ensure that agency experts have, indeed, considered all the relevant information.").
176. See, e.g., Wis. Envtl. Decade, Inc. v. State Dep't of Natural Res., 288 N.W.2d 168, 172 (Wis. Ct. App. 1979) (Wisconsin Environmental Policy Act "is designed to ensure adequate consideration of environmental factors in the decision-making processes of state agencies before resources are irreversibly and irretrievably committed,"); Lassila v. City of Wenatchee, 576 P.2d 54, 59 (Wash. 1978) ("A basic purpose of SEPA is to require local governments to consider total environmental and ecological factors to the fullest extent" when taking major actions).
177. Bob Warner, Group Works to Help Candidates Think Green, Philadelphia Daily News, May 23, 2006 at 6 ("[T]he release of a public-opinion poll show[s] ... Philadelphia residents attach a lot of importance to environmental issues, ranging from water and air pollution to improving city parks, roads and bridges:")
178. Justin Pidot, The Applicability of Nuisance Law to Invasive Plants: Can Common Law Liability Inspire Government Action? 24 Va. Envtl. L.J. 183, 211 (2005) ("A recent Gallup Poll found that sixty-five percent of Americans are concerned about environmental issues.").
179. See Watts, supra note 66, at 217 ("CEQA functions can provide an important check on the temptation for financially strapped local governments automatically to approve revenue-generating projects.").
180. N.Y. Comp. Codes R. & Regs. tit. 6, § 617.11 (2006) ("Prior to the lead agency's decision on an action that has been the subject of a final EIS, it shall afford agencies and the public a reasonable time period (not less than 10 calendar days) in which to consider the final EIS before issuing its written findings statement. No involved agency may make a final decision to undertake, fund, approve or disapprove an action that has been the subject of a final EIS, until the time period ... has passed and the agency has made a written findings statement.").
181. See, e.g., Laurie Reynolds & Carlos A. Ball, Exactions and the Privatization of the Public Sphere, 21 J.L. & Pol. 451, 472-73 (2005). The article notes that annexations, one type of land use decision, often result in agreements between the local jurisdiction and the landowner: Should annexation into the city provide more attractive development possibilities to the landowner, negotiations between the two sides may produce an enforceable agreement stipulating the terms of annexation. Typically, the agreement will include commitments made by both parties, with the provisions covering a wide range of topics, including zoning and subdivision requirements, commitments to provide financial contributions, utility provision, and abatements of taxes, fees, and other charges.
182. See also Erin Ryan, Zoning, Taking, and Dealing: The Problems and Promise of Bargaining in Land Use Planning Conflicts, 7 Harv. Negot. L. Rev. 337 (2002)
183. Judith Welch Wegner, Moving Toward the Bargaining Table: Contract Zoning, Development Agreements, and the Theoretical Foundations of Government Land Use Deals, 65 N.C. L. Rev. 957 (1987).
184. See Matter of Ziemba v. City of Troy, 802 N.Y.S.2d 586, 588 (N.Y. Sup. Ct. 2005) ("Having made up their minds without going through the SEQRA process, they are convinced that it would serve no practical purpose to go through the SEQRA process in this or other instances of building demolition.");
185. Concerned Citizens of Rapides Parish v. Hardy, 397 So. 2d 1063, 1068 (La. Ct. App. 1981) (noting in the context of NEPA that "defendant did not approach the design hearing with an open mind to evaluate the views to be expressed by the people of the Alexandria-Pineville area at the hearing as NEPA contemplates.").
186. Protect the Historic Amador Waterways v. Amador Water Agency, 116 Cal. App. 4th 1099, 1106 (2004) ("The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.")
187. Santa Clarita Org. for Planning the Envtl. v. County of Los Angeles, 106 Cal. App. 4th 715, 721 (2003) ("The purpose of an EIR is to inform the public and its responsible officials of the environmental consequences of decisions before they are made.").
188. See Neil A.F. Popovic, The Right to Participate in Decisions That Affect the Environment, 10 Pace Envtl. L. Rev. 683, 698-99 (1993) ("In order for public voice actually to affect the outcome of the environmental decision-making process, the public must have a meaningful role in the process. In other words, the process must force the government, prior to reaching a decision, to consider the public's input."). But see Sterk, supra note 20, at 2052: [T]he impact statement is less important as a mechanism for sensitizing decision-makers to environmental issues ... [E]nvironmental issues have become an important focus for public discourse. Decisionmakers may still sacrifice environmental values, but they are unlikely to do so because they are unaware of public attitudes toward the environment....
189. Johnson, supra note 25, at 572: In many cases minority and low-income communities are disparately impacted by government actions because the communities do not have a voice in the decisionmaking process, and the communities lack the influence or political power of special interest groups that may support the government action. Broad and flexible public participation provisions ... empower communities and provide them with a voice in the decision-making process.
190. See Gail Bingham & L.M. Langstaff, Alternative Dispute Resolution in the NEPA Process, in Environmental Policy and Nepa: Past, Present and Future 277 (Ray Clark & Larry Canter eds., 1997) ("more specific attention to the application of ADR techniques to the NEPA process, through increased awareness of proven ADR techniques and the use of neutral facilitators or mediators where appropriate, would enhance the ability of agencies to use the NEPA process as the decision-making tool it was intended to be rather than the onerous procedural burden it seems to have become."); U.S. Inst. for Envtl. Conflict Resolution, Report and Recommendations on a Nepa Pilot Projects Initiative (Aug. 29, 2001).
191. State of Wis. v. Weinberger, 745 F.2d 412, 434 (7th Cir. 1984) (referring to "the NEPA ideal of careful environmental planning prior to action" (emphasis in original)
192. Joel Ban, NEPA Review of CAFE: An Opportunity Lost, 23 Temp. Envtl. L. & Tech. J. 121, 139 (2004) ("NEPA created an obligation on the part of the federal government to use all practical means to coordinate federal plans, functions, programs, and resources ...").
193. Bradley C. Karkkainen, Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance, 102 Colum. L. Rev. 903, 925-26 (2002): NEPA is predicated upon a 1960s-style faith in comprehensive bureaucratic rationality, and more specifically, the comprehensive-rational planning model associated with the large scale experiments in urban planning of that era. NEPA demands that the agency conduct a single, exhaustive, panoptic, and purely predictive information production exereise prior to undertaking action.
194. See also Lee R. Epstein & Larry A. Gordon, Application of American Land Use and Environmental Planning Techniques to Environmental Recovery in Emerging Economies: Fundamental Foundations from the New World to the Old, 16 HASTINGS Int'L & Comp. L. Rev. 1, 14 (1992) ("Environmental planning also utilizes the traditional planning model. As such, it involves a future-oriented, continuous process, based upon an analysis first of environmental resources and present conditions.").
195. 40 C.F.R § 1502.14 ("In this section agencies shall: ... (f) Include appropriate mitigation measures not already included in the proposed action or alternatives.").
196. Natural Res. Def. Council v. U.S. Army Corps of Eng'rs, No. 05-CIV-762(SAS), 2006 WL 559472, at *13 (S.D.N.Y. Mar. 8, 2006) ("A proposed mitigation measure should be accompanied by some level of assurance as to its efficacy. An agency must study the likely effects of the measure, propose monitoring to determine how effective the planned mitigation would be, and consider alternatives in the event the measure failed.").
197. 40 C.F.R. § 1502.14 (2006).
198. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 333 (1989). ("[i] tis well settled that NEPA itself does not impose substantive duties mandating particular results, but simply prescribes the necessary process for preventing uninformed - rather than unwise - agency action.").
199. See, e.g., N.Y. Envtl. Conserv. Law § 8-0109(2) (McKinney 2006) (EIS must discuss "alternatives to the proposed action" and "mitigation measures proposed to minimize the environmental impact")
200. Wash. Admin. Code § 197-11-440 (2006) (EIS must discuss reasonable alternatives, including the proposed action with any mitigation measures).
201. Minn. Stat. Ann. § 116D.04(6) (West 2004).
202. See Ferester, supra note 3, at 209 ("[S]ome states sought to improve upon NEPA by holding state agencies and municipalities to higher standards than those imposed on their federal counterparts") The principal states with more significant substantive provisions are New York, Washington, California, and Minnesota, as well as the District of Columbia. A larger number of states - including North Carolina, Hawaii, and Maryland - have no such provisions.
203. N.Y. Envtl. Conserv. Law § 8-0109(1) (McKinney 2006). The section reads in full: Agencies shall use all practicable means to realize the policies and goals set forth in this article, and shall act and choose alternatives which, consistent with social, economic and other essential considerations, to the maximum extent practicable, minimize or avoid adverse environmental effects, including effects revealed in the environmental impact statement process.
204. D.C. Code Ann. § 8-109.04 (1989).
205. Cal. Pub. Res. Code § 21001 (West 1979). The pertinent part of the statute declares: (a) The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided. (b) Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so. (c) If economic, social, or other conditions make it infeasible to mitigate one or more significant effects on the environment of a project, the project may nonetheless be carried out or approved at the discretion of a public agency if the project is otherwise permissible under applicable laws and regulations.
206. Id. § 21081. But see N.C. Gen. Stat. Ann. § 113A-5 (West 1971) (when a program, project or action would result in a "major adverse change in the environment," then the information "shall be presented to the Governor for review and final decision by him or by such agency as he may designate ...").
207. Gerrard, supra note 45, at 5 ("On a nationwide basis, there are few if any cases holding, based on the little NEPAs ... that a decision was improper because the environmental impact was excessive.").
208. Caffry, supra note 22, at 194 ("This policy of avoiding adverse environmental impacts is one of the principal differences between SEQRA and its 'parent' statute [NEPA] ...").
209. See Wash. Admin. Code § 197-11-660 (2006) (expressly authorizing agencies to mitigate environmental impacts: (1) Any governmental action on public or private proposals that are not exempt may be conditioned or denied under SEPA to mitigate the environmental impact subject to the following limitations: (a) Mitigation measures or denials shall be based on policies, plans, rules, or regulations formally designated by the agency (or appropriate legislative body, in the case of local government) as a basis for the exercise of substantive authority and in effect when the DNS or DEIS is issued. (b) Mitigation measures shall be related to specific, adverse environmental impacts clearly identified in an environmental document on the proposal and shall be stated in writing by the decision maker.
210. See Peter J. Eglick & Henryk J. Hiller, The Myth of Mitigation Under NEPA and SEPA, 20 Envtl. Law 773, 774 (1990) (The Washington SEPA "generally is considered stronger than NEPA because it provides agencies with substantive authority to condition or deny a project. Moreover, SEPA may mandate the mitigation of significant adverse impacts.").
211. See Ferester, supra note 3, at 231 (While CEQA's "mechanical aspects are very similar to NEPA's ... CEQA's language clearly and forcefully communicates the legislative mandate for environmentally-sensitive decisionmaking").
212. See Nicholas C. Yost, State Mini-NEPAs or State Environmental Impact Assessment Law - Scope: Purpose and Need, Alternatives, and Mitigation (prepared for the American Bar Association Environmental Impact Assessment Committee, First Annual "Little NEPA" Conference (May 30, 2005) at 6: "While alternatives are one means of avoiding environmental harm - the agency must look for alternative means of achieving ends which are less harmful - mitigation is another means of achieving the same end - allowing an action to proceed, but only if the harmful impacts are removed or ameliorated.") (on file with author).
213. Wash. Rev. Code Ann. § 43.21C.031(1) (West 1995).
214. There are some situations in which an alternative does exist that is not a mitigation measure. The "conservation" alternative is one example. Water conservation may be a viable alternative to the need for a new dam. Similarly, energy conservation may obviate the need for a new power plant.
215. But see D.C. Code § 8-109.03(a)(4) (1989) ("Alternatives to the proposed major action, including alternative locations...").
216. Mira Mar Mobile Cmty. v. City of Oceanside, 119 Cal. App. 4th 477, 492 (2004) ("Because the proposed project is consistent with the City's existing plans, policies and zoning, we conclude a review of alternative sites was not necessary."). Washington requires analysis of offsite alternatives only if a public agency will implement the project. Org. to Pres. Agric. Lands v. Adams County, 913 P.2d 793, 798 (Wash. Ct. App. 1996) ("whether an EIS must include consideration of offsite alternatives depends on whether the project is public or private" (citing Wash. Admin. Code § 197-11-440(5)(d) (2006)));
217. see Gerrard et al., supra note 21, § 5.14[2][f], at 5-174.5 ("developers of shopping centers have been successful in avoiding analyses of alternative sites not owned by them.").
218. The SEQRA Handbook lists four simations in which analysis of alternative sites is appropriate: (1) the agency itself has undertaken the project directly; (2) a private applicant has already evaluated alternative sites; (3) the applicant owns or has options on other sites; and (4) the applicant does not yet own the proposed site. SEQRA Handbook, supra note 39, at 63-64.
219. See Rodgers, supra note 72, at 57. Discussing Washington's prohibition on evaluating off-site alternatives for private projects on a specific site, Professor Rodgers observes: The idea might be that site acquisition is so important to most proposals that the alternative of doing it elsewhere is financially out of the question and therefore unworthy of discussion. Or perhaps the notion is that developers are entitled to a decision on a take-it or leave-it basis so that the range of alternatives must be defined by the scope of their ambition...
220. E.A. Prichard & Gregory A. Riegle, Searching for Certainty: Virginia's Evolutionary Approach to Vested Rights, 7 Geo. Mason L. Rev. 983, 1004 (1999) ("Developers may be required to invest even greater sums of up-front money to justify proposals.").
221. See, e.g., Frankland v. City of Lake Oswego, 517 P.2d 1042, 1044 (Or. 1973). ("Plaintiffs contend that the construction was not accomplished according to the planned unit development plan as submitted to the City.").
222. See Cal. Code Regs. tit. 14, § 15126.6(a) (2006) ("An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.").
223. Jay Wickersham, Mitigation Measures: Definitions, Enforcement, Monitoring, and Effectiveness, Am. Bar Assn. Section on Env't, Energy and Resources 2 (2005) ("the identification and implementation of mitigation measures is the principal environmental benefit of little-NEPA statutes.") (on file with author).
224. Cal. Pub. Res. Code § 21002.1 (West 1996) ("Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.").
225. Alejandro Esteban Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement and Adaptive Planning in Land Use Decisions, 24 Stan. Envtl. L.J. 269, 270 (2005) ("The shift in land use regulation from a primarily command and control approach to an extemporized, negotiated mode has steadily gained momentum ... ").
226. The mitigation can take the form of a mitigated negative declaration as well, which avoids the need for an EIS. See Bradley C. Karkkainen, Whither NEPA?, 12 N.Y.U. Envtl. L. J. 333, 348 (2004) ("The widespread use of the mitigated FONSI is the best evidence we have that NEPA is actually altering agency decision-making and improving environmental performance.").
227. City of Ithaca v. Tompkins County Bd. of Representatives, 164 A.2d 726 (N.Y. App. Div. 1991) ("SEQRA review is not required until a specific project plan ... is actually formulated and proposed").
228. Cal. Pub. Res. Code § 21002.1 (West 1996) ("The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.").
229. Russell Kurobkin, Inertia and Preference in Contract Negotiation: The Psychological Power of Default Rules and Form Terms, 51 Vand. L. Rev. 1583, 1608-09 ("The initial terms are likely to be perceived as the terms that will govern the parties' relationship if no further action takes place, and thus as the status quo ... terms understood as the status quo, or baseline, are likely to be sticky ...").
230. See Schenck v. City of Hudson, 997 F. Supp. 902, 905 (N.D. Ohio 1998) (the City of Hudson "has the right to limit the density of population to prevent congestion."); Joseph L. Sax, Using Property Rights to Attack Environmental Protection, 19 Pace Envtl. L. Rev. 715, 719 (2002) ("Public welfare laws embrace economic regulation of all kinds: historic preservation, open space zoning and height and density limits")
231. Richard Briffault, Smart Growth and American Land Use Law, 21 ST. Louis U. Pub. L. Rev. 253, 257 (2002) (noting the role of courts in providing judicial validation for suburban zoning ordinances aimed at limiting density).
232. The clearest case of this is where private developers seek approval of housing projects. There is less evidence that, when public agencies propose public projects (rather than approve private developments), the same dynamic is present.
233. David L. Callies & Julie A. Tappendorf, Unconstitutional Land Development Conditions and the Development Agreement Solution: Bargaining for Public Facilities After Nollan and Dolan, 51 Case W. Res. L. Rev. 663, 695-96 (2001) ("Development agreements are attractive to both sides of the development equation. On the one hand, a developer can achieve a freeze on development regulations and, in some cases, fees and contributions. A local government, on the other hand, can obtain "voluntary" contributions, dedications, and the developer's agreement to construct public improvements without having to establish any "nexus" between the required improvement or exaction and the proposed development.").
234. City of Colo. Springs v. Bd. of County Comm'rs of Eagle, 895 P.2d 1105, 1115 (Colo. Ct. App. 1994). ("The Board, acting in its quasi-judicial capacity, is capable of performing a balancing test which weighs the potential adverse environmental impact of the project against its potential benefits.").
235. See Cal. Pub. Res. Code § 20002.1(b) (West 1994) ("Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.")
236. id. § 21081 (requiring findings about whether alternatives or mitigation measures are feasible).
237. Id. § 21002.1 (c) ("If economic, social, or other conditions make it infeasible to mitigate one or more significant effects on the environment of a project, the project may nonetheless be carried out or approved at the discretion of a public agency ..."); Cal. Code Regs. tit. 14, § 15093(a), (b) (2006) (requiring a public agency to "balance ... the economic, legal, social, technological or other benefits of a proposed project against its unavoidable environmental risks when determining to approve the project" and to adopt a "statement of overriding considerations" explaining the reasons for its action).
238. Cal. Pub. Res. Code § 21069 (West 1976) ("'Responsible agency' means a public agency, other than the lead agency, which has responsibility for carrying out or approving a project")
239. N.Y. Envtl. Conserv. Law § 8-0109 (McKinney 2005) ("As early as possible in the formulation of a proposal for an action, the responsible agency shall make an initial determination whether an environmental impact statement need be prepared for the action. When an action is to be carried out or approved by two or more agencies, such determination shall be made as early as possible after the designation of tbe lead agency.").
240. Jay Wickersham, Mitigation Measures: Definitions, Enforcement, Monitoring, and Effectiveness, Am. Bar Ass'n Section on Envtl., Energy and Resources, 6 (2005) (discussing the risk of "orphaned mitigation" where the mitigation measures "lie outside an agency's legal jurisdiction or technical expertise ...") (on file with author).
241. The recent Growing Smart Guidebook outlines some possibilities for integration in the land use field. See Patricia E. Salkin, From Euclid to Growing Smart: The Transformation of the American Local Land Use Ethic into Local Land Use and Environmental Controls, 20 Pace Envtl. L. Rev. 109, 136-37 (2002) (options include "requiring local governments to conduct an analysis of alternatives in the comprehensive land use plan ... or substituting environmental policies in a comprehensive plan and requirements within development regulations for environmental review under state law ...").
242. See supra text accompanying note 122.
243. James A. Kushner, 1 Subdivis1on Law and Growth Mgmt. § 1:16 (2006) ("Courts have uniformly sustained the power of the state to enable local subdivision regulation.... All states either enable local subdivision control ordinances by state statute or recognize inherent power through judicial approval of local ordinances.").
244. See Kenneth S. Weiner, No Little NEPA an Island: Integrating Environmental Review Efficiently with Decisions (prepared for American Bar Assn. Envtl. Impact Assessment Committee, First Annual "Little NEPA" Conference (May 30, 2005)), at 2 (powerpoint noting "challenges with an "overlay" law as including "duplication/redundancy/cost," "delay/cost," and "paperwork/cost."),
245. See, e.g., Cal. Gov't Code § 65920(a) (West 1997) ("This chapter shall be known and may be cited as the Permit Streamlining Act.")
246. Cal. Gov't Code § 65921 (West 1997) ("The Legislature finds and declares that there is a statewide need to ensure clear understanding of the specific requirements which must be met in connection with the approval of development projects and to expedite decisions on such projects. Consequently, the provisions of this chapter shall be applicable to all public agencies, including charter cities.").
247. People v. Library One, Inc., 229 Cal. App. 3d 973, 987 n.5 (1991) ("The People's claim that various sections of the Permit Streamlining Act, Government Code section 65920, et seq., provide adequate time limits for the issuance of a conditional use permit is without merit. The cited provision imposes a six-month deadline for approval or disapproval of an application for a development permit from the completion of the application unless an environmental impact report is required in which case the time limit is one year.").
248. Rio Vista Farm Bureau Ctr. v. County of Solano, 5 Cal. App. 4th 351, 368 (1992) ("The EIR has been described as the "heart of CEQA"; it is an "environmental alarm bell" which has the objective of alerting the public and governmental officials to the environmental consequences of decisions before they have reached ecological points of no return.").
249. For example, the federal agency may have jurisdiction over only a small portion of the entire project, a situation known as the "small handle" problem. See Gordon H. Howard, Save Our Sonoran Inc. v. Flowers: Navigable Waters and Small Handles in the Dry, Dry Desert, 35 Envtl. L. 605, 607 (2005) ("A "small handle" problem occurs when a federal agency asserts jurisdiction over a small portion of a larger project, most of which requires no federal oversight.")
250. Albert C. Lin, Erosive Interpretation of Environmental Law in the Supreme Court's 2003-04 Term, 42 Hous. L. Rev. 565, 613 (2005) ("small handle" cases occur "where federal approval is required for a small but integral part of a nonfederal project.")
251. David Paget, NEPA's "Small Handle" Problem: The Scope of Analysis of Federal Action, in SG026 ALI-ABA Course of Study Materials 95 (2001).
252. For example, as the Washington Environmental Policy Act Handbook notes, "Most regulations focus on particular aspects of a proposal, while SEPA requires the identification and evaluation of probable impacts for all elements of the environment." Washington Environmental Policy Act Handbook, supra note 40, at 2.
253. For example, state constitutions preserve certain local powers from state control. Plunkett, supra note 44, at 240 (referring to various "home rule provisions" among state constitutions and noting that the "scope of the home rule power varies from state to state.").
254. See John L. Horwich, Environmental Planning: Lessons from New South Wales, Australia in the Integration of Land-Use Planning and Environmental Protection, 17 Va. Envtl. L.J. 267, 318 (1998) (referring to land use controls in the United States as embodying "a bifurcated scheme in which the federal and state governments deal with environmental quality without directly regulating land use, and local governments regulate land use without expressly addressing issues of environmental quality.").
255. The SEPAs try to solve the problem by designating one agency as the "lead agency" and the rest as "responsible agencies." See, e.g., Cal. Pub. Res. Code § 21067 (West 2006) (defining "lead agency" as "the public agency which has the principal responsibility for carrying out or approving a project which may have a significant effect upon the environment.");
256. 6 N.Y. Comp. Codes R. & Regs. tit. 6, § 617.2(U) (2000) (defining lead agency as "an involved agency principally responsible for undertaking, funding or approving an action");
257. Cal. Pub. Res. Code § 21069 (West 2006) (defining a responsible agency as "a public agency, other than the lead agency, which has responsibility for carrying out or approving a project.") The lead agency is responsible for preparing the environmental document.
258. See Hirokawa, supra note 61, at 416 (describing the problem of "piecemealing").
259. 606 N.E.2d 1373 (N.Y. 1992).
260. Id. at 1377.
261. Id.
262. Id. at 1379.
263. Id.
264. See, e.g., James P. Morris, Who Controls the Waters? Incorporating Environmental and Social Values in Water Resource Planning, 6 Hastings W.-Nw. J. Envtl. L. & Pol'y 117, 161 (2000) (suggesting a conceptual and philosophical understanding of why the current water resources planning process is inadequate)
265. Ryan Waterman, Comment, Addressing California's Uncertain Water Future by Coordinating Long-Term Land Use and Water Planning: Is a Water Element in the General Plan the Next Step?, 31 Ecology L.Q. 117, 170 (2004) ("The current scheme for long-term land use and water planning suffers from three obvious omissions.").
266. See Santiago County Water Dist. v. County of Orange, 118 Cal. App. 3d 818 (1981) (EIR was inadequate because it failed to supply sufficient information about how water would be delivered to a mining project).
267. Vineyard Area Citizens for Responsible Growth, Inc. v. City of Rancho Cordova, 25 Cal. Rptr. 3d 596, 609 (Cal. Ct. App. 2005) ("[A]n EIR is adequate if it identifies and analyzes potential sources of water even though the final availability of those sources is not confirmed.... We conclude that the [EIR] need not identify and analyze all possible resources that might serve the Project should the anticipated resources fail to materialize."), review granted, Vineyard Area Citizens for Responsible Growth v. City of Rancho Cordova, 113 P.3d 532 (Cal. 2005).
268. Molinari v. City of N.Y., 551 N.Y.S.2d 760, 764 (N.Y. App. Div. 1990) ("the EIS reviews and discusses the environmental impacts with respect to the ecology, traffic, prison demographics, and available medical care for the Project, and incorporates as conditions mitigative measures that were identified as practicable to minimize or avoid any adverse environmental impacts.").
269. See Wash. Rev. Code § 43.21C.075 (2006) (authorizing judicial review under the Washington State Environmental Policy Act);
270. Cal. Pub. Res. Code § 21168, 21,168.5 (authorizing judicial review under the California Environmental Quality Act);
271. Jackson v. N.Y. State Urban Der. Corp., 494 N.E.2d 429 (N.Y. 1986) (judicial review available under State Environmental Quality Review Act even though no statute specifically authorizes such review).
272. Michael B. Gerrard, Reported Decisions Under the Little NEPAs (prepared for American Bar Ass'n Envtl. Impact Assessment Committee, First Annual "Little NEPA" Conference (May 30, 2005) at 1). A copy of the study is on file with the author.
273. Id. The full list is as follows: New York-863; California-808; Washington-316; New Jersey-64; Massachusetts-50; Connecticut-42; Minnesota-40; Wisconsin-38; Hawaii-29; North Carolina-19; Montana-15; Delaware-10; Mississippi-7; South Dakota-6; Maryland-5; District of Columbia-5; Georgia-3; Michigan-3; Puerto Rico-2; Illinois-2; Indiana-2; Virginia-1; Nevada-0.
274. See Gerrard, supra note 232, at 4.
275. West 97th-West 98th Streets Block Ass'n v. Volunteers of Am. of Greater N.Y., 581 N.Y.S.2d 523, 530 (N.Y. App. Div. 1991) ("Whether or not this is a NIMBY ("Not In My Back Yard") suit, it is certainly one of many cases challenging the placing of a social service facility on the basis that the placing violated City "land-use" procedures and State environmental law."
276. see Watts, supra note 66, at 239 (suggesting support for the conclusion that "CEQA to some degree encourages not-in-my-back-yard (NIMBY) syndrome....").
277. See Sterk, supra note 20, at 2041 ("the environmental review process has become a powerful weapon in the hands of development opponents who seek not to preserve the environment, but to protect their own economic self-interest, or to promote their own prejudices.").
278. Wal-Mart Stores v. City of Turlock, 138 Cal. App. 4th 273 (2006) (city zoning ordinance prohibiting development of discount superstores was adequately covered by discussion in prior environmental impact report)
279. Bakersfield Citizens for Local Control v. City of Bakersfield, 124 Cal. App. 4th 1184 (2004) (environmental impact report invalid for failing to discuss potential that two shopping centers located 3.6 miles apart, each of which would contain a Wal-Mart, would cause urban decay)
280. Maintain Our Desert Env't v. Town of Apple Valley, 124 Cal. App. 4th 430 (2004) (alleging environmental document was inadequate for failing to identify Wal-Mart as tenant)
281. Wilkinson v. Planning Bd. of Town of Thompson, 680 N.Y.S.2d 710 (N.Y. App. Div. 1998) (challenging negative declaration under SEQRA for Wal-Mart supercenter).
282. Clyde v. City of Palm Desert, No. E035008, 2004 WL 2931264 (Cal. Ct. App. Dec. 20, 2004) (noting in a suit under the California Environmental Quality Act that member of union had submitted a letter attacking construction of a Wal-Mart at the project site, stressing concerns about the company's labor practices)
283. see Michael H. Zischke, Access to the Courts - Examples of Standing and Related Topics Under State Environmental Impact Review Statutes (prepared for the American Bar Association Environmental Impact Assessment Committee, First Annual "Little NEPA" Conference (May 30, 2005) at 2 ("labor-motivated CEQA cases and challenges are commonplace.")).
284. See, e.g., Mobil Oil Corp. v. Syracuse Indus. Dev. Agency, 559 N.E.2d 641 (N.Y. 1990) (property owner lacked standing to challenge approval of mall on nearby property)
285. Waste Mgmt., Inc. of Alameda County v. County of Alameda, 79 Cal. App. 4th 1223 (2000) (landfill operator sought to compel preparation of EIR on competitor's permit).
286. Salkin, supra note 57, at 579-80 ("Critics maintain that higher project costs resulting from SEQRA-related delays have been a constant in the land use permitting process" and noting that the SEQRA time frames "are rarely adhered to")
287. Plunkett, supra note 44, at 247 ("The environmental review process is criticized for being too time-consuming and costly.").
288. See, e.g., Sierra Club v. Comm'r of Dep't of Envtl. Mgmt., 791 N.E.2d 325 (Mass. 2003) (environmental group had standing to challenge expansion of ski facilities)
289. Sierra Club v. Hawaii Tourism Auth., 59 P.3d 877 (Haw. 2002) (environmental group lacked standing to challenge decision to enter contract for tourism marketing services)
290. Friends of Tilden Park, Inc. v. Dist. of Columbia, 806 A.2d 1201 (D.C. 2002) (nonprofit corporation lacked standing to challenge construction of apartment building)
291. Kucera v. State Dep't of Transp., 995 P.2d 63 (Wash. 2000) (shoreline property owners had standing to challenge operation of ferry)
292. Milwaukee Brewers Baseball Club v. Wis. Dep't of Health, 387 N.W.2d 245 (Wis. 1986) (baseball club had standing to challenge decision to construct prison).
293. Harris v. Pierce County, 928 P.2d 1111, 1116 (Wash. Ct. App. 1996) ("The only interest alleged is economic: owning property that could be condemned. CAT has failed to allege an interest within the zone of interests protected by SEPA and therefore lacks standing for a constitutional writ of certiorari.")
294. see also Fox v. Wis. Dep't of Health & Social Servs., 334 N.W.2d 532, 538 (Wis. 1983) (denying standing based on economic injury).
295. See Gerrard, supra note 21, § 7.07[4][b], at 7-108 ("a party has no standing to invoke SEQRA to prevent a competitor from locating or expanding its business if the only harm that plaintiff would suffer is loss of business.").
296. The motives of environmental groups are generally not questioned. But see A.H. Barnett & Timothy D. Terrell, Economic Observations on Citizen-Suit Provisions of Environmental Legislation, 12 Duke Envtl. L. & Pol'y F. 1, 9 (2001) ("It is tempting to assume that environmental advocacy groups are interested in enforcing environmental regulations for ideological or public-interest reasons. However, when we are concerned with the standing issue and citizen-suit provisions, this approach may oversimplify the motives of these groups").
297. See Cmty. Pres. Corp. v. Miller, 781 N.Y.S.2d 603, 607 (N.Y. App. Div. 2004) ("the presence of an economic motive alone does not constitute grounds for standing in a SEQRA action.").
298. Waste Mgmt. Inc. of Alameda County, Inc. v. County of Alameda, 79 Cal. App. 4th 1223, 1229 (2000): It is clear from the record that Waste Management's interest in this litigation has been commercial and competitive due to the fact both Waste Management and Browning-Ferris are in the business of solid waste disposal. In essence, Waste Management complains that it was required to go through a permit revision process with CEQA review, while Browning-Ferris was not, thus identifying its injury as the extra cost it incurred and continuing competitive injury due to Browning-Ferris's lower costs. As we shall explain, Waste Management's commercial and competitive interests are not within the zone of interests CEQA was intended to preserve or protect and cannot serve as a beneficial interest for purposes of the standing requirement.
299. See Duke & Benedict, Inc. v. Town of Southeast, 678 N.Y.S.2d 343, 345 (N.Y. App. Div. 1998) (economic motive does not disqualify adjacent landowner who can allege environmental impacts from project).
300. The same is conceivably even true of businesses. See Duke & Benedict, Inc. v. Town of Southeast, 678 N.Y.S.2d 343 (N.Y. App. Div. 1998) (fact that the plaintiff has an economic motive to challenge a decision will not bar it if it has also alleged environmental impacts).
301. Metro. Museum Historic Dist. Coal. v. De Montebello, 796 N.Y.S.2d 64, 69 (N.Y. App. Div. 2005) ("agency's determination is final, thereby triggering the statutory limitations period...when the agency arrives at a definitive position on the issue that inflicts an actual, concrete injury")
302. Sierra Club v. Haw. Tourism Auth., 59 P.3d 877, 908 n.6 (Haw. 2002) (noting previous cases in which "the plaintiffs' geographic proximity to the site of the injury was so close as to make the concrete injury obvious without further consideration.").
303. 40 C.F.R. § 1500.1(c) (2006): Ultimately, of course, it is not better documents but better decisions that count. NEPA's purpose is not to generate paperwork - even excellent paperwork - but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. These regulations provide the direction to achieve this purpose.
304. See, e.g., Committee on Resources, U.S. House of Representatives, Initial Findings and Draft Recommendations, Task Force on Improving the National Environmental Policy Act and Task Force on Updating the National Environmental Policy Act (Dec. 21, 2005), http://resourcescommittee.house.gov/nepataskforce/report/ nepareport.finaldraft.pdf (last visited Sept. 19, 2006)
305. Council on Environmental Quality/Executive Office of the President, The National Environmental Policy Act: A Study of Its Effectiveness After Twenty-five Years (1997), http://ceq.eh.doe.gov/nepa/nepa25fn.pdf (last visited Sept. 19, 2006)
306. J. Austin et al., Judging Nepa: A "Hard Look" at Judicial Decision Making Under the National Environmental Policy Act (Envtl. L. Inst. 2004), http://www.endangeredlaws.org/downloads/judgingNEPA.pdf (last visited Sept. 19, 2006).
307. See, e.g., Bradley C. Karkkainnen, Whither NEPA?, 12 N.Y,U. Envtl. L.J. 333 (2004)
308. Dinah Bear, Some Modest Suggestions for Improving Implementation of the National Environmental Policy Act, 43 Nat. Resources J. 931 (2003)
309. James T.B. Tripp & Nathan G. Alley, Streamlining NEPA's Environmental Review Process: Suggestions for Agency Reform, 12 N.Y.U. Envtl. L.J. 74 (2003)
310. James L. Connaughton, Modernizing the National Environmental Policy Act: Back to the Future, 12 N.Y.U. Envtl. L.J. 1 (2003)
311. Lynton K. Caldwell, The National Environmental Policy Act: An Agenda for the Future (1998)
312. Symposium on NEPA at Twenty: The Past, Present and Future of the National Environmental Policy Act, 20 Envtl. L. 447 (1990).
313. See, e.g., N.Y. Comp. Codes R. & Regs. tit. 6, § 617.2 (1996) ("'Scoping' means the process by which the lead agency identifies the potentially significant adverse impacts related to the proposed action that are to be addressed in the draft EIS including the content and level of detail of the analysis, the range of alternatives, the mitigation measures needed and the identification of nonrelevant issues")
314. N. C. Admin. Code § 25.0602 ("If an agency determines that an EIS is required on a project, it may choose to request advice from the general public and other agencies on what alternatives and issues should be addressed in the EIS. The agency must submit a copy of a scoping notice to the Clearinghouse, which shall publish the scoping notice in the Environmental Bulletin").
315. N.C. Admin. Code tit. 1, § 25.0603 (1999).
316. Wash. Admin. Code § 197-11-425(4) (2000).
317. The cases on adequacy are legion. Recent cases include California Oak Found. v. City of Santa Clarita, 133 Cal. App. 4th 1219 (2005) (section of the EIR discussing water supplies was inadequate)
318. Friends of the Wild Swan v. Department of Natural Resources & Conservation, 6 P.3d 972 (Mont. 2000) (EIS failed to adequately analyze cumulative impacts of project).
319. NEPA documents are criticized on the same grounds. See Brian L. Cole et al., 2004 Prospects for Health Impact Assessment in the United States: New and Improved Environmental Impact Assessment or Something Different?, 29 J. Health Pol. Pol'y & L. 1153, 1164 (2004) ("Excessive document page length has been a major problem for NEPA implementation. The EPA estimates that only 37 percent of EISs stay within the CEQ guidelines of 150 pages or less.").
320. See Mark Seidenfeld, Empowering Stakeholders: Limits on Collaboration as the Basis for Flexible Regulation, 41 Wm. & Mary L. Rev. 411, 421-22 (2000) (defining "collaborative regulation" as "a variant of self-regulation in which beneficiaries of regulatory statutes are empowered to participate in regulatory design and enforcement.").
321. See Kenneth S. Weiner, No Little NEPA Is an Island: Integrating Environmental Review Efficiently with Decisions, American Bar Association Section of Environmental, Energy, and Resources (2005) (powerpoint presentation) (asking the question "what's left for Little NEPA's to do?" and answering that they fill gaps, ensure that overlaps are considered, create a comprehensive picture with meaningful public involvement; ensure agency coordination, and assure accountability (on file with author)).
322. Jay Wickersham, Mitigation Measures: Definitions, Enforcement, Monitoring, and Effectiveness, Am. Bar Assn. Section on Env't, Energy and Resources (2005).
323. See, e.g., Chelsea H. Congdon et al., Economic Incentives and Nonpoint Source Pollution, 2 Hastings W.-Nw. J. Envtl. L. & Pol'y 185, 217 (1995) (noting that "the ability to monitor and enforce pollution discharge limits is central" to tradable permits and traditional permit systems).
324. See Cal. Code Regs. tit. 14, § 15126.6(a) (2006) ("An EIR shall describe a range of reasonable alternatives to the project, or to the location of the project, which would feasibly attain most of the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project, and evaluate the comparative merits of the alternatives.").
325. Jay Wickersham, Mitigation Measures: Definitions, Enforcement, Monitoring, and Effectiveness, Am. Bar Assn. Section on Env't, Energy and Resources 2 (2005) ("the identification and implementation of mitigation measures is the principal environmental benefit of little-NEPA statutes.") (on file with author).
326. Cal. Pub. Res. Code § 21002.1 (West 1996) ("Each public agency shall mitigate or avoid the significant effects on the environment of projects that it carries out or approves whenever it is feasible to do so.").
327. Alejandro Esteban Camacho, Mustering the Missing Voices: A Collaborative Model for Fostering Equality, Community Involvement and Adaptive
328. The mitigation can take the form of a mitigated negative declaration as well, which avoids the need for an EIS. See Bradley C. Karkkainen, Whither NEPA?, 12 N.Y.U. Envtl. L. J. 333, 348 (2004) ("The widespread use of the mitigated FONSI is the best evidence we have that NEPA is actually altering agency decision-making and improving environmental performance.").
329. City of Ithaca v. Tompkins County Bd. of Representatives, 164 A.2d 726 (N.Y. App. Div. 1991) ("SEQRA review is not required until a specific project plan ... is actually formulated and proposed").
330. Cal. Pub. Res. Code § 21002.1 (West 1996) ("The purpose of an environmental impact report is to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.").
331. Russell Kurobkin, Inertia and Preference in Contract Negotiation: The Psychological Power of Default Rules and Form Terms, 51 Vand. L. Rev. 1583, 1608-09 ("The initial terms are likely to be perceived as the terms that will govern the parties' relationship if no further action takes place, and thus as the status quo ... terms understood as the status quo, or baseline, are likely to be sticky ...").
332. Sacramento Old City Ass'n v. City Council of Sacramento, 229 Cal. App. 3d 1011 (1991) (rejecting plaintiffs' claim that a lack of specification in the parking mitigation measures rendered the EIR invalid).
333. Laurel Hills Homeowners Ass'n v. City Council of Los Angeles, 83 Cal. App. 3d 515 (1978) (finding that city had mitigated project to an "acceptable level" without specifically determining that an environmentally superior alternative identified in the EIR was infeasible).
334. See Cal. Pub. Res. Code § 21081.6 (West 2006) (requiring monitoring of mitigation measures)
335. Governor's Office of Planning and Research, Tracking CEQA Mitigation Measures Under AB 3180 (1996).
336. Mitigation Measures, supra note 194, at 8-9 (discussing ad hoc mitigation reporting and monitoring in Massachusetts).