EPA’s most obvious violation of NEPA may be the EPA’s failure to meaningfully discuss reasonable alternatives to the proposed action

The substance of this morning’s comment is below.

In general, before approving the proposed regulation, NEPA requires EPA to prepare a thorough EIS for the project. In a discussion entitled: “What is included in an EIS?”, EPA outlines the EIS requirements. https://www.epa.gov/nepa/national-environmental-policy-act-review-process#EIS The requirements include: “Alternatives: Consideration of a reasonable range of alternatives that can accomplish the purpose and need of the proposed action.”

Although the documents that EPA presented in support of the proposed regulation fall far short of what NEPA requires in many ways, the most obvious deficit may be the EPA’s failure to meaningfully discuss reasonable alternatives to the proposed action. In the present case, as a consequence of “Anti-Environment” regulation’s extraordinary breadth, NEPA requires EPA to prepare an EIS which reviews and discusses the many reasonable (and often patently superior) alternatives to the proposed regulatory action.

While courts sometimes differ on the necessary scope of alternatives, it is clear that even a minimal EIS should discuss several alternatives. The proposed regulation lists 8 different statutes
(i.e., CAA, CWA, SDWA, RCRA, CERCLA, EPCRTKA, FIFRA, and TSCA ) it will impact. See proposed regulation Federal Register, Vol. 83, No. 83 pg. 18769. Clearly, a reasonable discussion of alternatives would compare the proposed action’s impacts with an alternative that impacts only 1 statute. Another alternative would apply to two of the listed statutes. Put simply each permutation of these statutes less than 8 statutes ought to be fully discussed in the EIS as a reasonable alternative. The EPA only has itself to blame for the complexity of the requisite EIS because it alone proposed a regulation that would affect 8 important statutes in one regulation.
Another alternative would be to authorize the EPA inspector general to expeditiously review any claims of bias.

Still another alternative that could be examined is to (at the regulated industries’ expense) have a shadow agency do an independent investigation of all proposed regulations. Depending on how the shadow agency was constructed it could be like shadow cabinets in Britain.

Given that the ostensible purpose of the proposed regulation is to increase the “transparency” in EPA decision making, a reasonable alternative would be to require each person expressing a position on a EPA action to disclose her or his salary and/or compensation for that statement and for any supporting study. This could be similar to what a party may discover about an expert witness offered in federal court. This would allow the public to act as more informed participants in any debate.

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