The Ninth Circuit Addresses NEPA’s Goldilocks Problem: How Many Alternatives Are Just Enough?

One of the critical elements of NEPA is that project proponents must assess the feasibility and impacts of not only the preferred alternative, but also a range of alternatives.  However, there is a tension in NEPA, because it is widely understood that the proponent, and not either courts or opponents, get to define its own project.  On the other hand, the proponent may not define the project so narrowly that its preferred alternative is the only one remaining.

Earlier this week, in v. Federal Transit Administration, the 9th Circuit Court of Appeals addressed this tension and made clear that the project proponent still holds most of the cards; so long the proponent does not manipulate the analysis to eliminate all other alternatives, a court is likely to defer to the proponent’s analysis of the project’s purpose and need.  As the Court described the issue:

Agencies enjoy “considerable discretion” in defining the purpose and need of a project, but they may not define the project’s objectives in terms so “unreasonably narrow,” that only one alternative would accomplish the goals of the project.

Here, the FTA described the purpose:

(1) “to provide high-capacity rapid transit in the highly congested east-west transportation corridor between Kapolei and University of Hawaii Manoa;” (2) “to provide faster, more reliable public transportation service in the study corridor than can be achieved with buses operating in congested mixed-flow traffic;” (3) “to provide reliable mobility in areas of the study corridor where people of limited income and an aging population live;” (4) “to serve rapidly developing areas of the study corridor;” and (5) to “provide additional transit capacity [and] an alternative to private automobile travel, and [to] improve transit links within the study corridor.”

The court concluded that this statement of purpose was sufficiently broad so as not to foreclose all other alternatives.  Moreover, the Court also emphasized that the proponent has significant discretion in identifying alternatives that may achieve the project purpose.

An agency is under no obligation to consider every possible alternative to a proposed action, nor must it consider alternatives that are unlikely to be implemented or those inconsistent with its basic policy objectives.

Two final points.  First, the Court confirmed the proponent’s authority to rely on prior assessments in rejecting alternatives as infeasible.  Second, the Court made clear that the proponent is entitled to rely on its own experts; rejecting outside studies is not arbitrary and capricious if the proponent has a reasoned basis for doing so.

The primary lesson from the case?  Crafting the agency statement of purpose and need requires a very careful balance in order to ensure that the EIS can properly focus on reasonable alternatives without unduly narrowing those alternatives too early in the process.

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