Washington Law Review


Mark Reeve


The National Environmental Policy Act (NEPA) requires federal agencies to prepare Environmental Impact Statements (EIS's) for all major actions significantly affecting the environment. The EIS must disclose and evaluate alternative actions and their environmental consequences. Congress did not address the problem of scientific uncertainty when it passed NEPA. Ten years later, the Council on Environmental Quality (CEQ) tackled the issue by including section 1502.22 in its new regulations governing EIS production. The section provides that if scientific uncertainty exists but can be cured by further research the agency must do or commission the research. If the necessary research is exorbitantly expensive or beyond the state of the art the agency must make clear that the uncertainty exists and must also include a worst case analysis in its EIS. For several years this regulation was virtually overlooked by the agencies and was not the subject of litigation. Recently, however, plaintiffs have discovered it and used it to block agency action when an agency overlooked or only paid lip service to the regulation's mandate. The contours of the regulation are still hazy. Four recent federal appellate court cases have begun shaping the regulation's interpretation, but several issues remain unanswered. This Comment analyzes both the scope of the regulation and the role courts should play in enforcing and clarifying it. After a brief background discussion the Comment addresses the regulation's information gathering requirement. It suggests that this duty to perform or commission research encompasses all important information. Next it addresses the topic of what the worst case analysis should include. Finally it addresses the role of the courts in implementing the regulation as a whole. The Comment advocates hard look review. It concludes that such review may enhance the quality of agency decisions and accord fairness to those affected by agency action whenever scientific uncertainty admittedly exists.

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