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Publication date: May 25, 2005

SPECIAL REPORT: KEY ENVIRONMENTAL LAW ERODING ON MANY FRONTS

The US federal government is in the midst of a broad campaign to revamp one of the bedrock US environmental laws, the National Environmental Policy Act (NEPA). A slew of developments are highlighted in this TipSheet, but there are more out there, and likely more to come.

Since the vast majority of these changes are new, or still in process, it's too early to tell how they will work out. But in general, many business groups are applauding, and many environmental groups are concerned.

Since 1969, NEPA has provided a way to gauge the effects of major development on public lands, look at alternatives, and give the public a chance to comment. In recent decades many business and industry interests have complained that NEPA has "morphed into an all-purpose delaying tactic," in the words of the Heritage Foundation's Ben Lieberman (202-608-6139).

But much less time could be spent in the environmental evaluation process if it were addressed upfront with initial project planning, as it often isn't, says the Sierra Club's Neha Bhatt (202-548-4596, NEPA page).

In addition, adequate review of projects saves time and money in the long run, since it lessens the need for difficult remedies to fix big mistakes, says the American Lands Alliance's Lisa Dix (202-547-9105).

The existing version of NEPA can probably allow for these and many other points of view, says Kirk Emerson, director of the Congressionally-authorized US Institute for Environmental Conflict Resolution (520-670-5299 x11, email, National ECR Advisory Committee, and Committee reports). But she said many agencies don't take full advantage of NEPA's language when they implement the law, leading to some of the subsequent gnashing of teeth on all sides.

FORMAL NEPA REVIEWS

In the past few years, the Bush administration has undertaken some initiatives to figure out what to do with NEPA. The White House's Council on Environmental Quality formed a Task Force and issued its findings in 2003. Contact: Michele St. Martin, 202-395-5750, NEPAnet.

The review provided a few nuggets of information that help put NEPA in some perspective. The number of environmental impact statements, a prominent part of NEPA, has remained in the same ballpark for the past 20 years, vacillating in a range from 370 to 607 per year. For 2002, the latest year provided, the federal departments and agencies that were the lead defendant in the most NEPA cases were, in descending order, Agriculture, Interior, Transportation, Corps of Engineers, Commerce, and Energy. The lead plaintiffs were public interest groups and individual citizens, followed by business groups, local governments, and state governments.

To keep up with the flow of NEPA-related agency actions, check out the NEPA blog.

Some formal recommendations based on CEQ's 2003 report may surface soon, possibly within weeks, says Robert Dreher, with the Georgetown Environmental Law and Policy Institute (202-662-9364, email). He is finishing up a paper, available by early June 2005, on the many recent challenges to NEPA.

In an effort that Dreher sees as separate from CEQ's review, another evaluation of NEPA is being run by the US House Resources Committee and its chairman, Richard Pombo (R-CA). The Task Force on Improving the National Environmental Policy Act, announced April 6, 2005, and chaired by Cathy McMorris (R-WA, release), is conducting a study that has five more public meetings planned in the next few months. A final report is tentatively scheduled for the fall of 2005.

The first meeting, covering the states of WA, OR, ID, MT, and AK, was held April 23, 2005, in Spokane, WA. The second meeting is falling behind schedule, possibly due to the support for NEPA expressed by some speakers, say some environmental groups, but simply due to scheduling difficulties, says Task Force spokesman Matt Streit (202-226-9019, email).

Regardless of the reason, the next meeting likely will be in the West, with an announcement expected by the end of May or beginning of June 2005, according to Streit. The public announcement for the Spokane meeting came just days before the actual event. The next four meetings should generally be in locations moving west to east, Streit says. The original plan had divvied up the remaining focal regions into the Southwest (CA, NV, AZ), Intermountain (WY, CO, NM, UT), South (TX, LA, MS, AL), Southeast (GA, FL, SC), and Mid-Atlantic (NC, VA, WV, MD).

The DC NEPA Coalition, which represents many different industries and has been looking at NEPA for years, had an opportunity to meet with the Task Force before its formation was announced, and to be briefed on its work and upcoming schedule. Bob Moran (American Petroleum Institute), 202-682-8424, and Dan Naatz (Independent Petroleum Association of America), 202-857-4722.

The National Mining Association enthusiastically endorses the efforts of the Task Force; April 6, 2005, release.

Legislation tied to the Task Force's findings could occur in the spring of 2006, Dreher says.

BLANK CHECK FOR SECURITY

In some cases, the Department of Homeland Security no longer has to follow NEPA or any other laws, or abide by most court actions, whether for environmental, health, safety, or other concerns. Attached to a 2005 supplemental bill continuing funding for the war in Iraq was a measure exempting DHS from obeying any laws when securing US borders (search U.S. Congress on the Internet for HR 1268).

Signed into law May 11, 2005, the exemption language was first crafted to address one small stretch of border near San Diego that had some environmental controversies ("Border Fence" background), but the language was expanded in the final version to include all US borders. All decisions are left to the discretion of the DHS Secretary, although such actions must be published in the Federal Register before they can go into effect, according to OMB Watch (Sean Moulton, 202-234-8494 x201, February 9, 2005, Citizens for Sensible Safeguards letter).

DHS is also determining how it should implement NEPA. Its draft proposal was announced June 14, 2004, and the public comment period closed Aug. 16, 2004 (DHS media, 202-282-8010). The agency had a small private follow-up meeting with a few invited public interest groups Oct. 12, 2004, but isn't talking about what it plans to do next, Moulton says. NRDC's Sharon Buccino (202-289-6868) says a new agency such as DHS typically has 18 months to submit a plan for addressing NEPA, and that deadline passed long ago. For more information, see the WatchDog of July 15, 2004.

NEPA-LITE FORESTS

The US Forest Service has adopted several new rules in the past few years that revise NEPA in "revolutionary" ways, Dreher says.

The Healthy Forests Initiative, approved Dec. 3, 2003, included several waivers of NEPA requirements (search U.S. Congress on the Internet for HR 1904). Proponents justified the waivers in part as being necessary to speed up wildfire prevention efforts, but many environmental groups challenge that argument and remain very concerned about the fallout from that decision.

On another front, USFS announced on Dec. 22, 2004, its final rule revising the planning process under the National Forest Management Act (Dan Jiron, 202-205-0896, NFMA/Planning, release, and NEPA group page). The new rule is projected by USFS to speed up the master planning process for 155 national forests and 20 grasslands, from the typical 5-7 years to 2-3 years. New plans are required every 15 years.

Critics say the increased speed will come in part by limiting the number of options that likely will be explored, reducing public participation, and providing more conditions under which plans need not prepare environmental impact statements. The rule also sets up two significant new processes (an "Environmental Management System" and a "Comprehensive Evaluation Report") that have their roots in the private sector and are mostly untested in the public realm. The Wilderness Society, Mike Anderson, 206-624-6430 x227, December 22, 2004, Wilderness Society letter.

Business groups such as the National Association of Home Builders are generally in favor of new forest management processes that reduce the "overburdensome environmental regulations and inconsistent federal timber management" they say have occurred under NEPA and other laws. Jason Lynn, 800-368-5242 x8307, NAHB policy.

It will be several years before the outcome of this planning shift will begin to become apparent. But planning under the new rule is already under way, as some of the 49 plans already in process around the country shift to the new approach, as allowed. Another 42 plans that will begin in the near future must use the new rule.

More details on how the new rule will be implemented are being developed. USFS announced March 23, 2005, a dozen "directives" that spell out some of the nitty gritty (Federal Register notice). The public comment period closes June 21, 2005. USFS has already gone through the public comment period for its determination of categorical exclusions for some plans, and expects to announce the final language by June or July 2005, says spokeswoman Heidi Valetkevitch (202-205-0914, email).

NEW ROADS FOR NEPA

Many changes in NEPA requirements are folded into the pending highway bill, the "Safe, Accountable, Flexible, and Efficient Transportation Equity Act of 2005" (SAFETEA), which sets up federal funding for transportation projects through 2009. The bill is expected to be in a conference committee soon, after both the House and Senate recently approved separate bills. For more information, see TipSheet of May 11, 2005, NRDC's NEPA web site, Sierra Club's "Public Involvement and the NEPA Process: Community Input Threatened," Federal Highway Administration's "Reasons for EIS Project Delays," and GAO abstract.

ENERGETIC WAIVERS

Numerous proposals in the Energy Bill once again under discussion in Congress would strip away some NEPA requirements, critics say (search U.S. Congress on the Internet for HR 6 for the House version. The Senate is debating its version).

For instance, language related to hydropower would alter NEPA by favoring power companies during the relicensing process and reducing the input of many others, says American Rivers (Robbin Marks, 202-347-7550, "Energy Bill's "Hydropower Title" is Bad News for Rivers"). The National Hydropower Association, which says that nearly 300 dams that supply more than half the country's hydropower will be up for relicensing by 2018, supports the new provisions (Mark Stover, 202-682-1700 x104).

Language supported by Rep. John Peterson (R-PA) and others would exempt a number of oil and gas drilling projects from NEPA review. Some environmental groups consider the exemptions very significant if approved (NRDC, NEPA web site, Sharon Buccino, 202-289-6868).

Proposed language would also allow some renewable energy projects to have more limited NEPA reviews, consistent with language supported by Rep. Pombo in the past. However, critics of the idea, such as Rep. Jay Inslee (D-WA), say that renewable energy projects can have significant detrimental effects and don't necessarily deserve less stringent review.

Other provisions would reduce NEPA reviews on tribal lands and for offshore drilling, and allow oil and gas companies to conduct their own NEPA analysis and be reimbursed for their work.

Rep. Nick Rahall (D-WV) is challenging the inclusion of any NEPA exemptions prior to the release of findings from the Pombo Task Force.

President Bush pushed for expedited reviews of all energy projects with two executive orders issued May 18, 2001 (Actions to Expedite Energy-Related Projects and Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use).

FINALIZING FISHERIES REGS

Congress has been struggling to reauthorize the decades-old Magnuson-Stevens Fishery Conservation and Management Act since its expiration in 1999. The Act is one of the main laws covering fishing in the zone extending from three to 200 miles


Last revised January 22, 2013

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