Environmentalists' Fears Over NEPA 'Modernization' Fail To Materialize

John Krist on
May 1, 2004

Red flags went up in the environmental community during May 2002 when the Bush administration announced it was forming a task force to "modernize and improve" the National Environmental Policy Act (NEPA). Two years later, release of the task force’s final report suggests that many of the fears voiced by defenders of this landmark federal statute have yet to materialize.

Passed by Congress in 1969, NEPA requires the U.S. government to assess the environmental effect of any significant project undertaken by a federal agency, funded with federal money, or requiring a permit from a federal agency. It requires public disclosure of the results of that assessment and a public determination as to whether the benefits outweigh the consequences.

In broadest terms, it is the bedrock federal environmental law. It has served as the blueprint for similar laws adopted by half the states, including the California Environmental Quality Act (CEQA). So when James Connaughton, chairman of the White House Council on Environmental Quality (CEQ), authorized creation of the NEPA task force, the response of many environmental groups echoed that of William Snape III, vice president and chief counsel of Defenders of Wildlife.

"In sum," he wrote in a letter to the task force, "we believe that NEPA is perhaps the most critical of all federal environmental laws, and assert its procedures are effective and efficient when utilized in good faith. The adage ‘don’t fix what ain’t broken’ possesses poignant relevance here."

The CEQ, which operates in the Executive Office of the President, was established by NEPA and charged with promulgating NEPA regulations applicable to other federal agencies, and with resolving disputes among federal agencies regarding NEPA compliance. The council comprises three members appointed by the president and subject to Senate confirmation.

Critics of the Bush administration’s environmental policies grew alarmed when Connaughton — a former lobbyist for mining companies and the Chemical Manufacturers Association — directed the task force to look into expanding the use of "categorical exclusions" by which federal agencies can declare certain types of projects exempt from environmental analysis, and to review the "balancing of public involvement and information security" in the wake of the September 11, 2001 terrorist attacks (see CP&DR Environment Watch, November 2002).

Environmental organizations viewed the comment regarding the "balancing" of public involvement and security needs as an attempt to undermine NEPA and quash public involvement. In their view, the Bush administration had made its aims clear in this regard by seeking to exempt logging plans from analysis and public review under the guise of fire prevention, to expedite review of some transportation projects, and to exempt federal activities from NEPA if they occur in offshore waters.

Critics of the administration also were alarmed by the hurried nature of the task force’s work: It initially imposed a 45-day deadline to collect public testimony and was to issue its final report by the end of 2002.

The public comment period, however, was quickly extended another month. Ultimately, the task force received written comments from more than 650 individuals, organizations, agencies and tribes. And the final report was not released until September 24, 2003, after which the CEQ commenced a series of four, two-day regional public hearings at which it invited comment on the report’s recommendations. Those regional meetings were conducted on Squaxin Island in the state of Washington, and in Pennsylvania, Tennessee and Colorado between October 2003 and January of this year.

Rather than a blow to the heart of NEPA, the final report is largely a compilation of procedural minutiae. The recommendations include:

• Sponsoring meetings, conferences, and workshops to coordinate information sharing.

• Clarifying the appropriate role of technology in communicating during the NEPA process to enhance public involvement.

• Establishing a committee to advise CEQ on how it might improve training for government employees involved in NEPA activities.

• Developing a "Citizen’s Guide to NEPA."
• Emphasizing the importance of collaboration as agencies expand the use and scope of programmatic NEPA analyses.

• Developing criteria for agencies to use when evaluating whether a programmatic document has become outdated.

• Convening a work group to consider how adaptive management techniques might be incorporated into the NEPA process.

• Clarifying how to determine whether a new categorical exclusion is appropriate.

• Issuing new guidance to specify the requirements for environmental assessments (EAs) and findings of no significant impact (FONSIs).

Although they are not mandatory or legally binding, the task force recommendations may very well improve coordination of NEPA activities among various federal agencies, and improve public communication and involvement by taking advantage of technologies such as the Internet, which were unavailable (and perhaps unimaginable) when President Nixon signed NEPA into law in 1970.

Judging by the response that has greeted the report, however, it appears unlikely that the task force recommendations, even if incorporated into NEPA policy directives by CEQ, will have much effect on the day-to-day application of the law. Environmental groups have largely been silent regarding the final report, and the testimony collected during the public reviews indicates a wary endorsement of the task force’s general recommendations with respect to greater public involvement and clearer, more consistent application of NEPA requirements from one federal agency to another.

In public comments filed with CEQ separately from the regional meetings, the only mainstream environmental organization to respond to the final task force report, the National Parks Conservation Association, concluded that the recommendations, in general, are sound. The parks association specifically endorsed several of those findings, such as the development of a citizen NEPA handbook; clearer coordination of NEPA with other federal environmental statutes; more explicit guidelines for EAs, categorical exclusions and FONSIs; and greater public involvement in the NEPA process.

"If there is any clear, overarching message from Squaxin Island," the facilitator of the October meeting concluded in a final report on the proceedings, "it is that NEPA is an eloquent law that was perhaps ahead of its time. Although we were not trying to reach consensus on any of the issues, there was a clear consensus that the National Environmental Policy Act had served the nation well and needs no amendment. As one panelist noted, ‘NEPA is old, but so is the U.S. Constitution.’ "

Contacts:
NEPA task force final report: Council on Environmental Quality
National Parks Conservation Association, (202) 223-6722.