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20 Envtl. L. 773 (1990)
The Myth of Mitigation under NEPA and SEPA

handle is hein.journals/envlnw20 and id is 803 raw text is: NEPA'S LEGACY BEYOND THE FEDERAL GOVERNMENT THE MYTH OF MITIGATION UNDER NEPA AND SEPA By PETER J. EGLICK* AND HENRYK J. HILLER** Should promised mitigating conditions be allowed to reduce a proposed project's environmental impacts to insignificance and, thus, obviate the need to write an EIS? The authors compare the response of the federal courts to mitigation promises under NEPA with that of the Washington courts under SEPA. Agencies typi- cally generate such conditions in response to public comment and apart from the original project proposal. Such conditions are con- troversial because they allow agencies to proceed with proposed projects on the basis of mitigating conditions generated without the detailed studies and public involvement characteristic of the EIS process. Moreover, the conditions are not always within the action agency's jurisdiction and, hence, may be unenforceable. The authors suggest that although federal courts have permitted mitigation conditions to excuse EIS preparation, the Ninth cir- cuit has carefully scrutinized both the effectiveness 'and enforce- * Peter J. Eglick & Associates, Seattle, Washington (concentrating on land use and environmental matters). J.D. 1975, Georgetown University law Center; B.A. 1972, University of Pennsylvania. ** Associate, Peter J. Eglick & Associates. J.D. 1986, Duke University School of Law; M.A. 1983, University of North Carolina at Chapel Hill; B.A. 1981, Vassar College.

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