Mitigation measures in analyses under the National Environmental Policy Act

Effectiveness monitoring is a more challenging concept than enforcement monitoring in that it actually measures the effectiveness of particular mitigation measures over time. Effectiveness monitoring can be both qualitative and quantitative in nature. (30) It is important that the monitoring effort result in sufficient data and observations to make a meaningful analysis of the effectiveness of the mitigation. (31) Further guidance on effectiveness monitoring can be found at Appendix C of the Army NEPA regulation. (32)

One final issue for the environmental law practitioner to consider is the duration of the mitigation monitoring. The Army regulation states that if the mitigation is effective, monitoring should continue "as long as the mitigations are needed to address the impacts of the initial action." (33) Effective mitigation is the desired result and the easier case to deal with. Ineffective mitigation, however, presents a different and more difficult issue.

If mitigation is deemed ineffective, technical personnel must be consulted to resolve any inadequacies. Resolving inadequacies in cases involving mitigated FNSIs is particularly important, since the regulation states that "[i]f ineffective mitigations are identified which were required to reduce impact below significance levels ..., the proponent may be required to publish an NOI and prepare an EIS." (34) This could present a very unpleasant situation for the proponent, particularly if the action has already been initiated and possibly completed. This potentiality highlights the importance of carefully considering mitigation plans as the action is developed throughout the NEPA process. Poor planning and a mere listing of potential mitigation actions will not serve the interests of the proponent of the action if mitigation is ineffective and such ineffectiveness is recognized through the monitoring process.

In addition to the requirements of the Army NEPA regulation, some recent court decisions provide further incentive to ensure that mitigation is well thought out and executed by federal agencies. Regarding mitigation under NEPA, the Supreme Court has ruled, in the context of an EIS, that CEQ regulations require a federal agency to discuss possible mitigation measures in the scoping process, in discussing alternatives, in discussing consequences of the proposed action, and in explaining its ultimate decision. The Court stated, however, that "[t]here is a fundamental distinction between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted, on the other." (35) In the context of an EA, mitigation measures may clearly be taken into account in assessing whether a significant impact exists, (36) and "it is clear that an agency may condition its decision not to prepare a full EIS on adoption of mitigation measures." (37)