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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).
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