By Tom Budlong   |   In managing the public lands, the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.

This excerpt has become almost famous, even acquiring a common acronym, “UUD.” It’s from the 1976 Federal Land Policy Management Act (FLPMA) that, after long gestation in Congress, gave the Bureau of Land Management (BLM) its fundamental responsibilities. (“Secretary” refers to the Secretary of the Interior.)

National Environmental Protection Act (NEPA) regulations require that Environmental Impact Statements evaluate alternatives to proposed projects. They require evaluation of all reasonable alternatives, not just a few, or just alternatives comfortable to a project proponent. With full information at hand a decision maker can select from alternatives to prevent unnecessary or undue degradation.

Photo above: Plant life in Soda Mountains area. Photo by Tom Budlong

BLM Environmental Impact Statements commonly sidestep this lofty goal by evaluating only alternatives that project proponents suggest, ignoring NEPA’s “all reasonable alternatives” requirement. Considering only the applicant’s alternatives puts the best interests of the applicant in front of the country’s best interests.

The regulations that the BLM routinely ignores are derived from our 1969 National Environmental Protection Act, NEPA. The result of ignoring the regulations is that the BLM routinely chooses alternatives friendly to project proponents, since appropriate alternative solutions are often not considered.

Here’s how this works:

Title 40 Regulations
Title 40 of the Code of Federal Regulations (CFR) deals with protection of the environment. Part 1502 of Title 40 regulates the contents of an Environmental Impact Statement (EIS). In 1502 the CFR recognizes that decisions can’t be judged in a partial vacuum – the situation needs context. This is apparent in paragraph 14(a) of Part 1502. Specifically, this paragraph states that in Environmental Impact Statements:

… agencies shall rigorously explore and objectively evaluate all reasonable alternatives…

The important clause here is “all reasonable alternatives.” In my experience with renewable energy projects the BLM is inclined to look no further than alternatives suggested by project proponents. By implication, omitting other methods of generating energy from an EIS, the BLM is stating that all other methods are unreasonable.

Then regulation 1502.14(c) adds emphasis, stating that agencies shall:

Include reasonable alternatives not within the jurisdiction of the lead agency.

So, even alternatives outside BLM’s bailiwick must be included (provided they are reasonable).

Council on Environmental Quality
Enter the Council on Environmental Quality (CEQ). Established by NEPA, the CEQ helps agencies follow NEPA. Sensing some confusion, the CEQ researched the need for clarification. In 1981 it published answers to the 40 most asked questions. Questions 1 and 2 are applicable here:

CEQ Question 1a: What is meant by “range of alternatives”…?

A: …”range of alternatives” … includes all reasonable alternatives, which must be rigorously explored and objectively evaluated…

Here, the CEQ has clarified 1502.14(a) by stipulating that all reasonable alternatives, not just some, must be included. The CEQ understands that the “unnecessary” in FLPMA’s UUD clause requires consideration of more than a subset of reasonable alternatives.

CEQ Question 2a: Alternatives Outside the Capability of Applicant or Jurisdiction of Agency:

A:   …In determining the scope of alternatives to be considered, the emphasis is on what is “reasonable” rather than on whether the proponent or applicant likes or is itself capable of carrying out a particular alternative. Reasonable alternatives include those that are practical or feasible from the technical and economic standpoint and using common sense, rather than simply desirable from the standpoint of the applicant.

In answer 2a the CEQ reconfirmed, and expanded on, the “all reasonable alternatives” requirement of 1502.14(a). The only restrictions are technical, economic, and good old common sense. Pleasing the applicant is not a consideration.

CEQ Question 2b: Must the EIS analyze alternatives outside the jurisdiction or capability of the agency or beyond what Congress has authorized? (Emphasis in the original.)

This answer goes even further:

  1. An alternative that is outside the legal jurisdiction of the lead agency must still be analyzed in the EIS if it is reasonable. A potential conflict with local or federal law does not necessarily render an alternative unreasonable, although such conflicts must be considered. …Alternatives that are outside the scope of what Congress has approved or funded must still be evaluated in the EIS if they are reasonable, because the EIS may serve as the basis for modifying the Congressional approval or funding in light of NEPA’s goals and policies…

The requirements of the CFR are clear, and the CEQ questions reinforce and emphasize the clarity. An EIS must include all reasonable alternatives. Period. It appears the CEQ understood that the “unnecessary” in the UUD clause could not be objectively determined without knowing what other alternatives have to offer. Decision makers can’t operate in partial vacuum. Nor can the public. Ignorance of all alternatives invites guessing that a narrow range of alternatives includes the one that would be judged the preferred alternative.

BLM Omissions
Yet the BLM commonly restricts its range of alternatives in an EIS to those within the applicant’s area of expertise. Considering only the applicant’s alternatives puts the best interests of the applicant, not the country in control. We are open to being shortchanged.

Soda Mountains Solar
The recent (June, 2015) release of the Final Environmental Impact Statement for the Soda Mountains Solar project demonstrates this.

The earlier draft of this EIS drew many comments concerning the range of alternatives. Some comments, including mine, reminded the BLM of its “all reasonable alternatives” obligations. The final EIS made no attempt to include all reasonable alternatives. It included only variations of the proponent’s configuration. Among the possible alternatives that might have been considered are rooftop solar, distributed generation, and siting on already disturbed lands. These are technically feasible and economically sound, but they are not in the interest of the project proponent nor do they fall nicely on lands administered by the BLM.

The final EIS included responses to comments on the draft, but the responses do not mention the requirement to include all reasonable alternatives. Instead, the answer cites the EIS’s Purpose and Need statement. As is required, the EIS defines the Purpose and Need for the project. By omitting mention of purpose other than responding to the applicant’s proposal, the EIS used an incorrect Purpose and Need to justify omission of other alternatives. Here are excerpts from BLM’s response in the final EIS.

The BLM is not in the business of developing and operating production facilities; its responsibilities are to consider…issuance of a ROW [Right of Way] grant to a qualified individual, business…

Consistent with FLPMA, the BLM relies on project proponents to identify…project locations and configurations that are technically and economically viable…

Note that these statements do not recognize BLM’s responsibilities to consider all reasonable alternatives, including those not “desirable from the standpoint of the applicant.” By stating reliance on the proponent for project locations and configurations, it has abdicated its responsibility for identifying alternatives outside the desirability of the applicant. In another place, the EIS claims:

BLM has considerable discretion in defining the purpose and need of the proposed action (40 CFR 1502.13)

This is wrong. 40 CFR 1502.13 states:

The statement [Environmental Impact Statement] shall briefly specify the underlying purpose and need to which the agency is responding in proposing the alternatives including the proposed action. [emphasis added]

The CFR says nothing about discretion, considerable or otherwise. The BLM statement certainly does not have even a hint of 1502.14 (the very next regulation) about including all reasonable alternatives.

The BLM had substituted the proponent’s profit motive for its higher motive.

The BLM’s NEPA violation put the interests of the applicant in front of the country’s.


Tom Budlong is a desert activist on the CA/NV Desert Committee.