Wal-Mart in the Garden District: Does the Arbitrary and Capricious Standard of Review in NEPA Cases Undermine Citizen Participation?

The National Environmental Policy Act (NEPA), enacted in 1969, requires that agencies of the U.S. government or those seeking to use federal funds to construct projects study the environmental and social impacts of said projects. Under the provisions of NEPA, a first-level review must be conducted for all projects not otherwise exempted. If the entity conducting the review deems that the project will result in a significant impact on humans or the environment, an environmental impact statement (EIS) must be prepared. The decision about whether or not to prepare an EIS can be controversial due to the fact that the entity charged with preparing the initial review ultimately makes decisions regarding the necessity of the preparation of the EIS. This paper explains the NEPA review process and the controversy that may result when the entity preparing the EIS does not respond to public concerns that a proposed project has a significant impact on the environment. The legal history of Coliseum Square Ass'n, Inc. v. Jackson, 465 F.3d 215 (5th Cir. 2006), provides a glimpse of a growing concern that the standard of review employed in these cases undermines efforts to involve citizens in the public comment process. The paper concludes with a discussion of how NEPA might be modified to ensure that citizens are given an adequate opportunity to participate in NEPA review. [ABSTRACT FROM AUTHOR]