The Gap Between Informational Goals and the Duty to Gather Information: Challenging Piecemealed Review under the Washington State Environmental Policy Act
In 1971, Washington enacted the State Environmental Policy Act (SEPA), which requires agencies to make a threshold determination of whether a project is likely to significantly affect the environment and, where such impacts are likely, to produce an environmental impact statement (EIS). One problem faced in implementing the goals of SEPA is the practice of "piecemealing." Part I of this Article introduces the piecemeal problem by describing three common piecemeal situations. The first situation occurs when a project proposal is divided into such small parts that the environmental impacts from each individual part appear insignificant and the impact from the sum of the parts is ignored. The second situation arises when a project proposal is properly divided into phases of construction, but earlier phases avoid the speculative study of environmental impacts accumulating with later phases, and later phases are drawn narrowly to avoid study of the cumulative impacts from earlier phases. The final piecemeal situation arises when environmental review of land use legislation is deferred based on promises of site-specific review for projects subject to the proposed scheme, but project proponents subsequently disclaim responsibility for assessing the cumulative environmental impacts from that legislation. Part II will then demonstrate the legislative and regulatory intent that environmental impacts be examined in a thorough and comprehensive manner and confirm this requirement of comprehensive review with a brief examination of case law that establishes a prohibition against piecemealed review. After Parts I and II establish that the piecemeal problem should not exist, Part III will proceed to discuss the source of the continuing piecemeal problem, specifically addressing the continuing confusion in the application of two independent regulatory standards purporting to restrict piecemealed review—cumulative impact analysis and project connectivity. Part IV examines in detail the judicial confusion over the interpretation of these standards under both SEPA and its federal counterpart, the National Environmental Policy Act (NEPA). Having established that the interpretive confusion is unwarranted, Part V then considers whether practical concerns may justify the piecemeal loophole and concludes that such concerns are inimical to the purposes underlying SEPA. Finally, Part VI of this essay examines supplementary environmental studies as a potential, but questionable, solution to the piecemealing problem.
Keith H. Hirokawa, The Gap Between Informational Goals and the Duty to Gather Information: Challenging Piecemealed Review under the Washington State Environmental Policy Act, 25 SEATTLE U. L. REV. 343 (2001).