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102 Colum. L. Rev. 903 (2002)
Toward a Smarter NEPA: Monitoring and Managing Government's Environmental Performance

handle is hein.journals/clr102 and id is 945 raw text is: ARTICLES TOWARD A SMARTER NEPA: MONITORING AND MANAGING GOVERNMENT'S ENVIRONMENTAL PERFORMANCE Bradley C. Karkkainen* The National Environmental Policy Act (NEPA) seeks to improve envi- ronmental outcomes by forcing comprehensive disclosure of expected conse- quences of agency actions. Some criticize this approach as weak and proce- dural, 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, pro- ducing 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 reporta- ble thresholds (mitigated FONSIs). Critics charge that mitigated FONSIs violate NEPA's spirit of full dis- closure. This Article argues that the EIS inadvertently functions as a pen- alty default, creating incentives to reduce environmental harm as an alter- native 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 NEPA by requiring follow-up monitoring, adaptive mitiga- tion, and an environmental management systems-oriented approach. Shift- ing from ex ante prediction to pragmatic, empirical monitoring would enable systematic error detection and better-informed management over a project's life. * Associate Professor, Columbia Law School. The author thanks Aaron Bielenberg for invaluable research assistance, and Jon Cannon, Jamie Colburn, Mike Dorf, Dan Farber, Archon Fung, Jim Liebman, Ed Lloyd, Dara O'Rourke, Chuck Sabel, Bill Simon, Peter Strauss, Susan Sturm, and participants in the Columbia Law School faculty lunch workshop for helpful comments on earlier drafts. 903

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