A New Approach to Review of NEPA Findings of No Significant Impact

This Note examines the confused array of judicial approaches for reviewing agency findings of no significant environmental impact and proposes a standardized, comprehensive approach that ensures compliance with both the procedural and substantive aspects of NEPA. Part I reviews agency procedures mandated by NEPA which ensure that agencies develop a detailed record for judicial scrutiny and constitute the legal basis against which to check agency threshold decisions. Part II examines the conflicting approaches of the lower courts, emphasizing their reliance on Supreme Court decisions, their characterization of the threshold decision as legal or factual, and the burden of proof each places on opponents of the agency decision.

Part III proposes an intermediate approach toward judicial review that builds upon the District of Columbia Circuit’s four-part inquiry. The proposed approach avoids the confusing terminology (such as “arbitrary and capricious” and “reasonableness”) that characterizes current review standards. Instead, it prompts courts to make an individual analysis of several interrelated parts of the threshold decision and to adopt a moderate burden of proof for the decision’s challengers. The approach thus leads to a less deferential and more in-depth review, which this Note argues is appropriate given that agencies governed by NEPA frequently lack environmental expertise.