Final Report (all chapters)

which only business and developers’ interests were effectively represented. Yet it is hard to
avoid the conclusion that over time, this welcome correction has degenerated into unjustifiable
administrative paralysis. 77
To appreciate the reasons for this state of affairs, a brief discussion of the rules of public
participation under NEPA is necessary. Per CEQ regulations, NEPA requires an agency to
prepare an EIS for all “major actions significantly affecting the quality of the human
environment.” It is the agency’s responsibility to determine whether the proposed action should
be considered “major” and whether its impact on the environment is “significant.” If the
proposed action is not deemed major, then it is not subject to NEPA’s provisions. If a project is
thought to be major but its impact is not “significant,” then the proposing agency needs only
prepare a much-less-demanding environmental statement focusing on whether the proposed
action may have a significant impact on the human environment. Whether a project is considered
significant is, once again, a determination made by the agency itself. 78
The 1978 CEQ regulations lay out in some detail the procedural rules governing the
preparation of an EIS. The first step is called “scoping.” During scoping, the agency determines
which issues should be considered and how they should be ranked. Scoping requires input from
other agencies as well as the general public. The public may provide comments in writing or at
meetings organized by the agency. Following scoping, the agency prepares a draft EIS, which it
makes available to the general public for comment. Interested parties must be given a minimum
of 45 days to respond.
CEQ regulations are more demanding than APA requirements in that they allow more time
for response; they also require the agency not only to announce the publication of the draft EIS
in the Federal Register, but also to actively solicit comments from “those persons or
organizations who may be interested or affected.” 79
This usually means announcing the
publication of the draft EIS in local papers and notification by mail. In addition, CEQ regulations
require the agency to hold public hearings on the draft EIS if there is “substantial environmental
controversy concerning the proposed action or substantial interest in holding the hearing […].” 80
After receiving comments from the public and from other agencies, the proposing agency
produces the final EIS. The public again has 30 days after publication of the final EIS to
comment before the agency makes it final determination, described in the “record of decision,”
or ROD. The ROD must, among other things, state the agency decision and the alternatives
77
78
79
80
As for example in the case of decision-making and the National Forest Service. Cf. Stark Ackerman,
"Observations on the Transformation of the Forest Service: The Effects of NEPA on Forest Service Decision
Making," Environmental Law 20 (1990), p.710.
William Murray Tabb, "The Role of Controversy in NEPA: Reconciling Public Veto with Public Participation in
Environmental Decisionmaking," William and Mary Environmental Law and Policy Review 21 (1997), p.185-92.
See 40 C.F.R. 1503.1(a)(4).
See 40 C.F.R. 1506.6(c).
279