Determining the scope and level of detail appropriate for a programmatic environmental impact statement

Determining the Scope and Level of Detail Appropriate for a Programmatic Environmental Impact Statement

Charles H. Eccleston

Since the inception of the National Environmental Policy A c t ( N E P A ) in 1969, no definitive guidance has been established for determining the scope of issues or the level of detail suitable for presentation within a Programmatic Environ- men tal Impact Statement (P-EIS). Lacking such guidance, a n inordinate amount of t ime and resources are often consumed in determining the issues and level of detail that are most appropriately addressed within a P-EIS versus the more detailed scope and level of detail best reserved for lower-tier documents. Experience indicates that P-EISs are often over bloated and unnecessarily complex. Consequently, there is agreat deal of inconsistency in the preparation of P-EISs among federal agency programs.

A paradigm for assistingdecision makers in making such determinations is presented below. This model expedites the preparation of P-EISs by providing a systematic approach for determining the scope and level of detail that are most appropriately addressed at the programmatic level. Thus, the model provides agencies with a n excellent means for streamlining the N E P A process by de- scoping needless and unnecessa y issues f r o m the P-EIS.

Neither the National Environmental Policy Act of 1969 (NEPA) nor its subsequent regulations (Regulations), issued by the Council on Environmental Quality (CEQ), have provided definitive guidance for determining the scope of issues or the amount of detail, discussion, and analysis that are appropriately addressed within a Programmatic Envi-

Charles H. Eccleston is a principal scientist with the NEPA Services Function of the Westinghouse Hanford Company and has authored numerous publications on NEPA. Currently, he is chairing the Cumulative Impact Standards Committee for the National Association of Environmental Professionals (NAEP). His principal interest involves developing new methods for streamlining the NEPA compliance process.

Federal Facilities Environmental Journal/Spring 1996 59 CCC 1048-4078/96/070159-11 Q 1996 John Wiley & Sons, Inc.


No t w o decision makers are likely to agree completely on the scope or level of detail that should be presented within a P-EIS versus lower-tier documents.

ronmental Impact Statement (P-EIS).’ Consequently, an inordinate amount of time and resources can be consumed in reaching a consensus regarding the programmatic scope and level of detail most suitable for a P-EIS versus the detailed analysis that is best reserved for lower-tier documents. An overview of CEQ’s guidance is presented below.

EXISTING GUIDANCE PROVIDES LITTLE ASSISTANCE IN DETERMINING SCOPE

The Regulations provide only cursory guidance regarding the scope and preparation of a P-EIS. With regard to preparation of a P-EIS, the Regulations state:

Environmental impact statements may be prepared, and are sometimes required, for broad Federal actions such as the adoption of new agency programs or regulations. Agencies shall prepare statements on broad actions so that they are relevant to policy and are timed to coincide with meaningful points in agency planning and decision making.”*

Furthermore, the Regulations declare that:

Agencies are encouraged to tier their environmental impact statements to eliminate repetitive discussions of the same issues and to focus on the actual issues ripe for decision at each level of environmental review. Whenever a broad environmental impact statement has been prepared (such as a program or policy statement) and a subsequent statement or environmental assessment is then prepared on an action included within the entire program or policy (such as a site-specific action), the subsequent statement or environmental assessment need only summarize the issues discussed in the broader statement and incorporate discussions from the broader statement by reference and shall concentrate on the issues specific to the subsequent a~ t ion . ”~

DEFINING THE SPECIFIC NATURE OF THE SCOPING PROBLEM

Experience indicates that no two decision makers are likely to agree completely on the scope or level of detail that should be presented within a P-EIS versus lower-tier documents. Specifically, this article addresses the following two questions:

1. What is the appropriate scope of a P-EIS? More specifically, how does one determine which issues are most appropriately addressed within a P-EIS and which issues are most appropriately deferred to lower-tier documents?

2. What level of detail is most appropriate for issues addressed in a P-EIS? That is to say, once a decision has been made to include

60 Federal Facilities Environmental Journal/Spring 1996


Wha t does a P-EIS provide that a standard Environmental Impact Statement (EIS) does not provide?

an issue in the scope of the P-EIS, a further decision must be made regarding the level of attention that should be given to the issue.

This article does not address the question of whether the amount of detail contained in an EIS/P-EIS is sufficient to provide coverage to pursue an action. Reviewing an EIS/P-EIS to determine if it provides sufficient analysis to pursue an action requires consideration of a differ- ent set of factors from those used in determining the scope and detail that is most appropriate for a P-EIS. Although related, these are separate issues, and care should be exercised so as not to confuse one with the

As explained above, definitive guidance does not exist for determining the appropriate scope and amount of detail within a programmatic analysis. Yet, decision makers are routinely called on to make such determinations during the scoping, analysis, and review phases of a P- EIS. Lacking systematic guidance, such determinations tend to be made on an ad hoc basis.

Ultimately, lack of definitive guidance may result in project delays, inconsistencies in the treatment of NEPA documents, and increased risk that a project may be challenged as a result of inappropriate coverage or treatment of an issue. Moreover, experience indicates that P-EISs are often over bloated and unnecessarily complex.

To reduce the risk of a successful challenge, agencies frequently prepare P-EISs containing a level of detail much greater than is reason- ably necessary to support programmatic decision making. Such overkill can significantly increase cost, cause project delays, and reduce flexibility to implement lower-tier actions. It is unduly wise to overly constrain an agency’s flexibility to implement detailed lower-tier aspects of a policy or program. Clearly, a consistent and systematic approach is needed to assist decision makers in determining the appropriate scope of a P-EIS.

TOWARD A CONSISTENT, SYSTEMATIC, AND OBJECTIVE MODEL

In developing a defensible model, one might best begin by asking a simple question: ”What is the fundamental purpose for preparing a P- EIS?” In other words, what does a P-EIS provide that a standard Environmental Impact Statement (EIS) does not provide? More to the point, why should one even make a distinction between an EIS and a P- EIS? The answer to these questions provides a starting point for developing a defensible model, because no model will work unless it fulfills the underlying purpose of a P-EIS.

As viewed in this article, the underlying purpose or reason for preparing a P-EIS is described as follows:

The purpose for preparing a P-EIS is to evaluate programmatic direction and approaches that will support high-level decisions regarding the implementation of broad policies, programs, or projects.

Federal Facilities Environmental Journal/Spring 1996 61


H- W h a t purpose is served by providing a more detailed discussion and analysis i f the information does not improve the decision makers' ability t o make programmatic decisions?

Accordingly, the scope and detail of coverage provided within a P- EIS are considered appropriate if they satisfy the purpose described above. Conversely, the scope and detail are considered inappropriate if they do not meet this purpose.

A "point of diminishing returns" will eventually be reached, beyond which any additional information will not contribute measurably to high-level decision making. Based on this proposition, the amount of detail and analysis should be considered adequate if a more detailed discussion would not provide information that substantially improves the ability of decision makers to make programmatic decisions regarding the approach that should be taken.

After all, what purpose is served by providing a more detailed discussion and analysis if the information does not improve the decision makers' ability to make programmatic decisions? Alternatively, additional discussion and analysis are warranted if the information improves the decision makers' ability to make programmatic decisions. This simple thesis provides the cornerstone for the model that will be presented shortly.

THE BASIS FOR DEVELOPING A MODEL FOR DETERMINING SCOPE

Eight criteria (or tests) are presented in Exhibit 1. These criteria, which are not ordered in terms of importance, provide the foundation for the model shown in Exhibit 2.

Each criterion is presented in terms of answering the first question that was introduced in the beginning of this article (i.e., determining the appropriate scope of a P-EIS). For example, the third criterion (Exhibit 1) can assist an agency in ascertaining the appropriate scope of a P-EIS by determining if a particular topic should be included or excluded based on whether it would affect a programmatic decision.

Similarly, these criteria can also be used to address the second question presented in the beginning of the article, regarding the amount of detail that is most appropriate for a P-EIS. With respect to the third criterion in Exhibit 1, this can be done by simply substituting the beginning phrase "Would discussion/analysis of the issue ..." with the phrase "Would a more detailed discussion/analysis of the issue ...."

TECHNICAL JUSTIFICATION FOR THE CRITERIA The technical justification for each of the criteria used in Exhibit 1 is

described below: Criterion 1: Criterion 1 is based on guidance concerning tiering and

deferring issues that are not "ripe for decision." As stated in the Regula- tions, agencies should use tiering "to focus on the actual issues ripe for decision at each level of environmental re vie^."^ This guidance is particularly relevant in the case of a P-EIS, since its underlying purpose is to support programmatic decisions that are typically made very early in the decision making process, before detailed site or project-specific information is available. Thus, in the case of a P-EIS, it is particularly



Exhibit 1. Criteria for Determining the Scope and Level of Detail Appropriate for a P-EIS

1.

2.

3.

4.

5.

6.

7.

8.

Can the issue be appropriately considered and analyzed at the programmatic level (i.e., “ripe for decision”) or should it be deferred to a later point in time when more information is available and events are better understood? Would discussion/analysis of an alternative reduce flexibility (i.e., ”box the agency into a corner”) to adapt or tailor specific lower-tier actions to accommodate a dynamic and often evolving planning process in which future events often change or new information becomes available? Would discussion/analysis of the issue substantially improve or change high-level decisions regarding the program/policy, or would it merely provide additional detail? Specifically, would the discussion allow the agency to ”concentrate on (programmatic) issues that are truly significant to the action in question?” Would the discussion/analysis provide a technical basis (e.g., descriptions, analysis, parameters, constraints, impacts) that would support or facilitate tiering of more detailed documents at a later date? Would the analysis enhance the understanding of the potential environmental impacts from a programmatic perspective? Would the discussion/analysis enhance an outside agency’s or the public’s understanding or ability to provide comments regarding the programmatic implications of the policy/program? Would discussion/analysis identify/develop an alternative approach or course of action that could affect the outcome of the program/policy from a programmatic perspective, or would it merely “fine tune” programmatic decision making? Would the discussion/analysis result in programmatic mitigation measures that could be implemented to substantially mitigate or reduce programmatic environmental impacts?

important to focus on programmatic decisions, deferring issues that are not ripe for decision.

Criterion 2: The degree of freedom that may be exercised in implementing lower-tier actions tends to decrease as the description of alternatives within a P-EIS becomes increasingly detailed. Thus, the discussion and description of alternatives within a P-EIS involves a balancing act between providing too much specificity and not enough specificity. An overly detailed or specific analysis may be invalidated as events evolve, and site- or project-specific information becomes available. On the other hand, a vague or superficial discussion is unlikely to provide an analysis that is sufficient to support decision making. A P-EIS should, therefore, provide specific enough information to support programmatic decision making, yet it should not be overly specific to the point where the agency “boxes itself into a corner.” A discussion must be sufficiently general to provide agencies with a degree of freedom that is


Charles H. Eccleston ~ ~


An EIS must be issued to ”public ojjficials and citizens before decisions are made and before actions are taken.”

necessary to implement specific aspects of a policy/program or to pursue specific alternatives and options as events change and more information becomes available. For this reason, criterion 2 is an important consideration in determining the scope and level of detail.

Criteria 3,5, and 7: Each of these criteria is based on specific guidance provided in the Regulations. According to the regulations, the fundamental intent and purpose of NEPA is to foster excellent decision making by taking environmental factors into consideration. Specifically, NEPA “is intended to help public officials make decisions that are based on an understanding of environmental Furthermore, agencies are required to prepare NEPA documents that ”concentrate on issues that are truly significant to the action in question, rather than amassing needless detail.”’ Based on this guidance, discussion of a particular issue or topic (or a more detailed discussion) in a P-EIS is warranted if it allows decision makers to focus on programmatic con-siderations and thus improve their ability to make high-level decisions. Discussions that do not promote the decision-making process at the programmatic level might best be deferred to lower-tier analy- ses.

Criterion 4: A P-EIS is not generally suited for considering highly detailed or site-specific details of a policy or program. Such details normally are deferred until a time when specific information is available to support preparation of lower-tier documents. Therefore, tiering takes on particular importance with respect to a P-EIS. For this reason, discussions that support or facilitate future tiering of more detailed actions should be included within the scope of the P-EIS.

Criterion 6: According to the Regulations, an EIS must be issued to ”public officials and citizens before decisions are made and before actions are taken.” The Regulations also state that ”expert agency comments and public scrutiny are essential to implementing NEPA.”8 Agen- cies are expected to “Encourage and facilitate public involvement in decisions which affect the quality of the human en~ironment.”~ Regard- ing the draft EIS, agencies are required to “Request comments from the public, affirmatively soliciting comments from those persons or organi- zations who may be interested or affected.”’O Clearly, NEPA is a public process, and a discussion that allows the public to understand or provide comments regarding the programmatic implications of the policy or program should be included in a P-EIS.

Criterion 8: According to the Regulations, federal agencies are expected to ”Use the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects of these actions upon the quality of the human environment.”” The Regulations go on to state that agencies are to use all practicable means to “restore and enhance the quality of the human environment and avoid or minimize any possible adverse effects of their actions upon the quality of the human environment.”’2 Consequently, a discussion that identifies and evaluates programmatic methods for mitigating environmental impacts should be included whenever practical.

Determining the Scope and Level of Detail Appropriate for a Programmatic Environmental lmpact Statement

Application of the model begins with a review of a topic, issue, impact, or alternative that is being considered for inclusion within the scope of the P-EIS.

A MODEL FOR DETERMINING THE SCOPE OF A P-EIS The model shown in Exhibit 2 is based on the eight criteria estab-

lished in Exhibit 1. Each of these tests provided in Exhibit 2 summarizes the criteria that are more fully explained in Exhibit 1. This model represented in Exhibit 2 provides a systematic and logical process that can assist decision makers in determining the scope of issues, impacts, and alternatives that is most appropriate for a P-EIS. This model can also provide a basis for determining the level of detail that should be afforded to a particular topic that falls within the scope of a P-EIS. Use of this model can provide agencies with a systematic means for streamlining the NEPA process by de-scoping needless and unnecessary issues from the P-EIS.

While the model is primarily intended to be used in the scoping process, it can also be employed at various steps during preparation of the P-EIS. Once the P-EIS has been prepared, it can be used by reviewers in determining if particular topics or issues should be added or removed from the P-EIS. During the comment incorporation process, the model may also assist analysts in determining if a comment is relevant, as well as the amount of discussion that is most appropriate. In the event that the agency is challenged, the model might provide a basis for demonstrating that the agency has addressed issues, impacts, and alternatives that are appropriate for consideration at the programmatic level.

As shown in Exhibit 2, application of the model begins with a review of a topic, issue, impact, or alternative that is being considered for inclusion within the scope of the P-EIS. This examination is conducted by reviewing the particular topic in terms of each of the eight tests. Each test is evaluated with respect to the following question: ”Would the discussion or analysis...?”

The first two tests provide an initial screening mechanism for iden- tifying discussions that are normally best deferred to lower-tier documentation. The first test simply indicates that an issue should be deferred to lower-tier documentation if it cannot be appropriately considered and analyzed at the programmatic level (i.e., not ”ripe for decision”). For example, if sufficient information does not exist to allow adequate consideration, the topic should be deferred for later consideration in lower-tier documentation.

As indicated in the second test, a discussion should be deferred if it would tend to substantially reduce the agency’s flexibility to modify a policy/program or to pursue other options as events change and more information becomes available. Clearly, a P-EIS should provide programmatic high-level direction without overly constraining the detailed implementation of lower-tier decision making. Ultimately, the goal should be to determine a programmatic direction, yet provide flexibility in determining the optimum implementation of the programmatic goals at the site-specific level.

The remaining six tests provide criteria for determining if discussion of a particular issue, impact, or alternative is appropriate for consideration within a P-EIS. A “yes” answer to any of the remaining six tests

Federal Facilities Environmental JournallSpring 1996 65


Exhibit 2. Model for Determining Appropriate Scope and Coverage of a P-EIS

Would the discussion or analysis:

information sufficient to

Include discussion or analysir ithin the 1 scope 0

Provide such

basis (e.g., bounding, descriptions, analysis)

+ No

Enhance understanding of the

No

Enhance the

+ No

Develop

future actions

I 4 No

Identify programmatic

~e P-EIS I

Don’t include the discussion or analysis within the scope of the P-EIS

66 Federal Facilities Environmental JoournallSpring 1996


The model provides an excellent means for streamlining the NEPA process by de-scoping needless and unnecessa y issues from the P-EIS.

would support a decision to include the discussion within the scope of the P-EIS. A ”no” answer to all of the remaining six tests would indicate that a particular discussion should be deferred to lower-tier documents.

Each test must be evaluated on a case-by-case basis according to the decision makers’ best professional judgment. Decision makers must exercise professional judgment in cases in which the answer to a particular test is not clearly obvious. Each individual issue, impact, and alternative that is considered for inclusion within the scope of the P-EIS can be reviewed, using this model, to determine if it should actuallybe included or deferred to lower-tier decision making.

Obviously, exceptions may arise that cannot be appropriately addressed with this model. Other considerations may need to be taken into account before determining the ultimate scope and level of detail appropriate for a P-EIS.

Admittedly, the proposed model does not completely eliminate subjectivity. After all, decision making by its very nature is subjective. Two decision makers, for example, may not completely agree on whether a discussion of a particular issue would substantially improve or change high-level decision making (i.e., test #3). Although this model does not entirely eliminate such subjectivity, it substantially reduces it because the vast spectrum of potential considerations that can be used to justify a particular position is essentially reduced to eight narrowly defined tests. Thus, the model provides an excellent means for streamlining the NEPA process by de-scoping needless and unnecessary issues from the P-EIS.

WHY THE PROPOSED MODEL IS DEFENSIBLE It is reasonable to ask if an agency can legitimately use this model to

determine the scope of issues or amount of detail that will be devoted to a particular subject. As we will see, agencies have not only the preroga- tive to adopt such methodologies, but also are, in fact, encouraged by the Regulations to do so.

Agencies Are Granted Wide Latitude in Adopting Methodologies Under the Regulations, agencies have been given not only the right

but also the responsibility for developing specific procedures and methodologies for implementing the NEPA process. The Regulations have been designed specifically to provide agencies with the flexibility needed to tailor the NEPA process to their own needs. Consistent with this philosophy, the Regulations place only a minimal number of restrictions on how agencies are expected to implement the NEPA process. The following provisions affirm this philosophy:

Agencies shall “utilize a systematic’’ a~pr0ach.l~ “It is the intent of these regulations to allow each agency flexibility in adapting its implementing proced~res....~”~ Agencies shall ”Identify methods and procedures ... to ensure that presently unquantified environmental amenities and values may be given appropriate c~nsideration.”’~

Federal Facilities Environmental JournallSpring 2 996 67


Acceptance of this model amounts to nothing more than substituting a formal, systematic procedure for the informal, haphazard process that currently exists.

The soundness and defensibility of the proposed model are further substantiated by Daniel Mandelkar, who reports the following:

Because a consensus is usually lacking on the state of the art in environmental methodology, the courts have usually accepted the methodology used by an agency in analyzing environmental impacts. They put the burden of proof on plaintiffs to prove the methodology was unacceptable.. . .These decisions reflect the usual judicial willingness to uphold an agency when the evidence shows that there is only a disagreement among experts.16

Determination of Scope Is Routinely Made on an Ad Hoc Basis Decision makers routinely make determinations regarding the scope

and depth of analysis within a P-EIS. Lacking formal and systematic procedures, these determinations tend to be made on an ad hoc basis.

The model does not foster any degree of decision making beyond the level already being exercised on a regular basis. Instead, the model simply attempts to substitute a consistent, rigorous, and systematic approach for the ad hoc situation that currently exists. If it is within the agency’s discretion to make determinations on an ad hoc basis, certainly a consistent and systematic approach is equally justifiable. Acceptance of this model amounts to nothing more than substituting a formal, systematic procedure for the informal, haphazard process that currently exists.

CONCLUSION Decision makers are routinely confronted with the problem of deter-

mining the scope and level of detail appropriate for inclusion within a P- EIS. Definitive direction for making such a determination does not exist. Lack of definitive direction may lead to highly complex and over-bloated P-EISs, project delays, inconsistencies in the treatment issues, and increased risk that a project may be challenged as a result of inappropriate coverage or treatment of an issue. The model provides agencies with an excellent means for streamlining the NEPA process by de-scoping needless and unnecessary issues from the P-EIS.

The proposed model does not promote any measure of decision making beyond that already employed on a routine basis. Quite the contrary. The model merely provides decision makers with a rigorous, systematic, and defensible approach for determining the scope most appropriate for a P-EIS versus discussions that are best deferred to lower-tier decision making. The criteria on which the model is based provide a reasonable and defensible approach for making such determinations. As we have seen, agencies have discretion to adopt such methodologies to facilitate the NEPA process and are, in fact, encouraged by the Regulations to do so.

ACKNOWLEDGMENTS I wish to thank the members of the P-EIS NEPA Practice Committee

of the National Association of Environmental Professionals (NAEP) who


Determining the Scope and Level of Detail Appropriate for a Proxrammatic Environmental Impact Stafement

reviewed this article and provided valuable comments. Special thanks is also extended to Mr. R.H. Engelmann (Manager of NEPA Services, Westinghouse Hanford Company (WHC)), Mr. P.F.X. Dunigan (NEPA Compliance Officer, U.S. Department of Energy, Richland Field Office), and the WHC legal office who reviewed this article and contributed valuable suggestions. *:*

NOTES 1. 42 USC 4321-4347, “The National Environmental Policy Act of 1969,” United States Code, as amended; 40 CFR 1500-1508, ”Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act,“ Code of Federal Regulations (November 29,1978).

2. 40 CFR 1502.4(b)

3. 40 CFR 1502.20.

4. C.H. Eccleston, ”NEPA: Determining When an Analysis Contains Sufficient Detail to Provide Adequate NEPACoverage for a Proposed Action,” Federal Facilities Environmental Journal (Summer 1995).

5. 40 CFR 1502.20 and 1508.28.

6. 40 CFR 1500.l(c).

7. 40 CFR 1500.l(b).

8. Id.

9. 40 CFR 1500.2(d)

10.40 CFR 1503.1(a)(4).

11.40 CFR 1500.2(e).

12.40 CFR 1500.2(f).

13.40 CFR 1507.2(a).

14.40 CFR 1507.1

15.40 CFR 1507.2@).

16. Daniel R. Mandelkar, NEPA Law and Litigation, Chapter 10, Deerfield, Illinois; Clark, Boardman, and Callaghan (1993).


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Determining the scope and level of detail appropriate for a programmatic environmental impact statement