Toward a smarter Nepa: Monitoring and managing government's environmental performance

The National Environmental Policy Act (NEPA) seeks to improve environmental outcomes by forcing comprehensive disclosure of expected consequences of agency actions. Some criticize this approach as weak and procedural, others as dilatory and costly. These problems stem from a common source: Such ex ante predictions are inevitably inexact and contestable. To safeguard against litigation challenging the adequacy of the environmental impact statement (EIS), agencies often substitute quantity for quality, producing large, costly, and uninformative documents. They also seek to avoid the EIS process by making Findings of No Significant Impact (FONSIs), often relying on mitigation measures to keep expected impacts below repartable thresholds (mitigated FONSIs). Critics charge that mitigated FONSIs violate NEPA's spirit of full disclosure. This Article argues that the EIS inadvertently functions as a penalty default, creating incentives to reduce environmental harm as an alternative to the costlier EIS process. But because NEPA does not require follow-up monitoring, actual impacts remain undisclosed and there is no assurance that mitigated impacts remain below EIS-triggering thresholds. This Article proposes to retool ATRA by requiring follow-up monitoring, adaptive mitigation, and an environmental management systems-oriented approach. Shifting from ex ante prediction to pragmatic, empirical monitoring would enable systematic error detection and better-informed management over a project's life.