Shaun A. Goho, NEPA and the “Beneficial Impact” EIS, 36 Wm. & Mary Envtl. L. & Pol’y Rev. 367 (2012).
Abstract: The National Environmental Policy Act (“NEPA”) requires that federal agencies prepare an environmental impact statement (“EIS”) for any major federal action “significantly affecting the quality of the human environment.” Some courts—in dicta—and some commentators have suggested that agencies must prepare an EIS for actions that will have significant beneficial impacts on the environment but no significant adverse impacts. In a recent case, the Ninth Circuit declined to address this question, but suggested that there was a circuit split on the issue. In this Article, I argue that agencies do not need to prepare such a “Beneficial Impact” EIS. First, there is actually no circuit split on the issue. All courts that have directly addressed the question have found that there is no Beneficial Impact EIS requirement. Cases that have been cited in support of such a requirement are either distinguishable or make such statements only in dicta. Second, while the statute does not directly address this question, some regulations and guidance indicate that an EIS should not be required under these circumstances. Third, the policies underlying NEPA are in tension with a Beneficial Impact EIS requirement. Such a requirement would produce unnecessary cost and delay for environmentally beneficial projects and create perverse incentives for federal agencies without any compensating informational benefits.