Environmental and Social Risks: Defensive National Environmental Policy Act in the US Forest Service

Abstract

The National Environmental Policy Act (NEPA) and its accompanying regulations provide a spectrum of alternative analytical pathways for federal agencies proposing major actions that might significantly impact the human environment. Although guidance from the President's Council on Environmental Quality suggests the decision to develop an environmental impact statement (EIS), which requires the most rigorous level of analysis, should be based on the likelihood of significant environmental impacts, findings from an Internet survey with US Forest Service project leaders suggest that the decision may more commonly be based on process-related risks, including the threat of litigation, perceived defensibility in court, and the level of public and political interest in the agency's proposed action. An analysis of judicial decisions in NEPA-related litigation reveals that EISs do not appear to be more defensible than environmental assessments in the courts, suggesting that current decisionmaking about NEPA documentation may be misguided, leading to unnecessary project expenditures and delays.

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