Prima Facie Burden and the Vanishing SEPA Threshold: Washington’s Emerging Preference for Efficiency over Accuracy

Keith H. Hirokawa, Prima Facie Burden and the Vanishing SEPA Threshold: Washington’s Emerging Preference for Efficiency over Accuracy, 37 Gonz. L. Rev. 403 (2002).

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The purpose of the Washington State Environmental Policy Act (“SEPA”) is simple: governmental action should be environmentally informed. This simple goal stands in contrast to a history of development, permitting, legislative proposals, and other governmental actions that are memorable for the lack of foresight with which the decisions were made. To preclude recurrences of such action, SEPA requires agencies to prepare “a detailed statement” that acts as “the basis upon which the responsible agency and officials can make the balancing judgment mandated by SEPA between the benefits to be gained by the proposed ‘major action’ and its impact upon the environment.” This detailed statement is a procedural means to ensure that decision makers have “sufficient information to make a reasoned decision” and requires a thorough, searching inquiry (environmental impact statement (“EIS”)) whenever the initial environmental review of a proposal (the threshold determination) indicates that the proposal will cause a “significant, adverse environmental impact.” This process does not mandate environmentally friendly decisions, but is intended to guarantee that the government will act in light of environmental consequences.

Although the informational goals of SEPA culminate with the EIS, the heart of agency efficiency and informed decision making lies in the threshold environmental determination. The threshold determination, which is required for every non-exempt proposal, requires the relevant agency to have a basic understanding of whether the proposal will significantly affect the environment; whether, based on context and intensity, a particular proposal will cause “a reasonable likelihood of more than a moderate adverse impact on environmental quality.” SEPA regulations require agencies to base their threshold determinations “upon information reasonably sufficient to evaluate the environmental impact of a proposal.”9 Furthermore, where any particular information would be essential to a reasoned decision and “the costs of obtaining it are not exorbitant, agencies shall obtain and include the information in their environmental documents.” Accordingly, the agency making the threshold determination must at least have a minimally adequate record of information, defined generally as that quantity and quality of facts required to make an informed decision. . . . Read More

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