Defining the no-action alternative for national environmental policy act analyses of continuing actions

The Council on Environmental Quality (CEQ) regulations (40 CFR 1500–1508) for implementing the National Environmental Policy Act of 1969 (NEPA) do not define the “no-action alternative,” stating only that NEPA analyses shall “include the alternative of no action” (40 CFR 1502.14). The definition of the no-action alternative for newly proposed actions seems clear (i.e., the agency will not implement the proposed action or alternative actions). However, for continuing actions, the meaning of the no-action alternative is ambiguous (i.e., continue the activity without modification or discontinue the activity). This article examines the overall function of the no-action alternative for NEPA analyses of continuing actions. It begins with a discussion of the conflicting definitions of the no-action alternative for continuing activities, including CEQ regulations and guidelines related to the no-action alternative and legal decisions that have helped establish precedence for defining no action. A review of NEPA regulations and guidelines of 10 federal agencies shows how different agencies define no-action for continuing actions. Review of six recent NEPA documents on continuing actions reveals how their definitions of the no-action alternative promote or impede informed decision-making. This paper argues that for environmental analyses of continuing actions, both continue-the-activity-without-modification (continue) and discontinue-the-ongoing-activity (discontinue) versions of the no-action alternative should be analyzed. In addition, the article shows that there is a significant potential for distortion of the impact assessment results if historical information is used as a substitute for analysis of the no-action alternative.