A Systematic Process for Addressing Incomplete Information in an EIS

Abstract

The issue of missing or incomplete information arises in many National Environmental Policy Act (NEPA) processes. Council on Environmental Quality (CEQ) regulations provide some guidance on how to address incomplete information at 40 C.F.R.§1502.22, but this provision can be difficult to interpret and is frequently misapplied. Departmental and agency implementing regulations tend to provide little instructions regarding missing or incomplete information, and there is scant applicable case law. Federal agencies and NEPA practitioners are left with inadequate guidance on this difficult and often controversial issue. Uncertainty about how to address missing or incomplete information can weaken NEPA analyses, obfuscate important environmental issues and also undermine the legal defensibility of NEPA documents and the agency decisions they support.

This paper proposes a systematic process for addressing incomplete information in Environmental Impact Statements developed pursuant to NEPA. This solution flows from careful interpretation of relevant provisions of NEPA and CEQ regulations, in particular CEQ regulations at 40 C.F.R.§1502.22. The product of this effort is a sequential process that is simple enough to illustrate in the form a flow chart, yet expansive enough to contemplate the full spectrum of missing or incomplete information that may be encountered in an EIS process. This approach was recently utilized in a high-profile EIS and received strong praise from the U.S. Environmental Protection Agency (EPA).