Environmental Compliance

The "Hard Look" Doctrine - A Lay Explanation

The National Environmental Policy Act (NEPA) states that all Federal agencies "to the fullest extent possible" must provide a detailed environmental impact statement (EIS) (42 U.S.C. 4332). Neither Congress nor the courts have indicated precisely how much detail an EIS must contain. However, courts consistently have held that, at a minimum, NEPA imposes a duty on Federal agencies to take a "hard look at environmental consequences" (Natural Resources Defense Council v. Morton, 458 F.2d 827, 838 (D.C. Cir., 1972). Hence, courts have carefully checked EIS's for completeness of information and detail, soundness of analysis, thorough discussion of alternatives, and disclosure of sources. Some court decisions have ordered agencies to prepare new statements if these criteria are not met.

The courts' interpretation is that the agency has the "requirement of a substantial, good faith effort at studying, analyzing, and expressing the environmental issues in the EIS and the decisionmaking process, and a recognition that a rule of reason must prevail because an EIS which fully explores every relevant environmental detail could never be drafted" (Natural Resources Defense Council v. Morton, 458 F.2d 827, 838 (D.C. Cir., 1972)). If the EIS provides good faith analysis and sufficient information to allow a firm basis for weighing the risks and benefits of a proposed action, the court will find the EIS to be sufficient (County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2nd Cir. 1977), cert. denied, 434 U.S. 1064 (1978)).