Article Title

Off-Site Mitigation and the EIS Threshold: NEPA's Faulty Framework

Publication Title

Washington University Journal of Urban and Contemporary Law


Only a comprehensive EIS will ensure that agencies adopt the safest and most effective off-site mitigation measures. The CEQ regulations support this view and discourage FONSIs justified by off-site mitigation except in limited circumstances. To encourage full disclosure and public participation in the NEPA process the CEQ, in "Forty Questions," mandates the preparation of an EIS whenever an action may have significant impacts on the environment regardless of mitigation unless such measures are imposed by law or included in the original proposal. Hopefully, the CEQ regulations will be amended so that the courts can regard this proposal as binding on the agencies.

The present NEPA procedural framework allows and even encourages both agencies and courts to engage in cursory and inadequate review of off-site mitigation. A legal distinction between on-site and offsite mitigation must be acknowledged in order to improve the decisionmaking process. While it is undeniable that mitigation should remain an agency option to be utilized to avoid preparing a FONSI, the circumstances under which this can be done need to be clearly outlined. Only then will judicial review of these proposals assure that NEPA's substantive mandate is satisfied.