DEFENDING NEPA FROM ASSAULT

The Bush administration has consistently sought to circumvent the basic protections afforded our environment by the three-decade-old National Environmental Policy Act.

The National Environmental Policy Act (NEPA) is a landmark environmental statute that has protected America's natural heritage on land and sea. For over 30 years, NEPA has provided an essential tool in helping federal managers do their jobs. When done right, it promotes sound and accepted decisions. Specifically, NEPA requires federal agencies to study and disclose the environmental effects of their actions and to include the public in their decision-making.

Opportunities exist to achieve NEPA's goals more effectively and efficiently. Yet the Bush administration and some in Congress are now acting to circumvent, rather than improve NEPA.

Congressional Task Force

The House Resources Committee has established a Task Force to review and purportedly "improve" NEPA. The Task Force is led by Rep. Cathy McMorris (R-WA), with Rep. Tom Udall (D-NM) serving as the ranking Democrat. Over the next several months, the Task Force intends to hold six field hearings -- the first was on April 23 in Spokane, Washington -- before issuing a report with its findings and recommendations in September.

White House Task Force

President Bush set up a NEPA task force in 2002, headed by the Council on Environmental Quality. Its stated mission is to "help federal agencies update their practices and procedures and better integrate NEPA into federal agency decision making" (67 Fed. Reg. 45511 (July 9, 2002)). The White House task force issued its initial report and recommendations on September 24, 2003, which concluded that no legislative changes to the law are needed.

Energy Policy

A basic tenet of the Bush energy plan is to speed up energy exploration and production (66 Fed. Reg. 28357 (May 22, 2001)) by curbing environmental review and public participation requirements. The current NEPA process plays an important role in safeguarding natural resources and public input. Recently, a federal appeals court invalidated several coalbed methane leases in Wyoming's Powder River Basin because of inadequate environmental review (Pennaco Energy, Inc. v. U.S. Dept. of Interior, 377 F.3d 1147 (10th Cir. 2004)). Previously, a federal judge blocked new oil and gas exploration in Utah near Arches National Park for failure to comply with NEPA (SUWA v. Norton, 237 F.Supp.2d 48 (D.D.C. 2002)).

In May 2001, just days after the Cheney Energy Task Force issued its recommendations, President Bush issued two executive orders designed to accelerate energy development. The first (E.O. 13211) requires agencies to identify the adverse effects of their actions on energy supply, distribution or use. The second (E.O. 13212) identifies "actions to expedite energy-related projects," including establishing an interagency task force chaired by CEQ to streamline energy projects.

Several provisions in energy legislation now being considered by Congress also would weaken environmental review and public participation. For example, Title V of H.R. 6 -- the bill recently passed by the House of Representatives -- would remove the application of federal laws, such as NEPA and the National Historic Preservation Act, from energy development decisions on tribal lands. The bill affects land both on and off reservations. The bill is designed to ease access to energy resources including oil, gas and coal.

Section 2055 of H.R. 6 waives public participation and environmental review under NEPA for numerous oil and gas activities, including well pads less than 5 acres in size, new wells in an existing oil and gas field, disposal of water from coalbed methane drilling and seismic exploration. The provision could affect development both on and off shore.

Section 1702 limits the consideration of alternatives by federal agencies to two: the alternative proposed by the industry that stands to benefit financially, and the "no action" alternative, even if other alternatives would be better for the environment or public health. The public is also precluded from commenting on any other alternatives. This provision for so-called "renewables," would exempt even solid waste incinerators and dams from meaningful environmental review.

Another piece of H.R. 6 (Secs. 1808, 2014) would allow oil and gas companies to conduct their own NEPA analysis of proposed projects -- and reimburse the companies for doing so. The bill offers no criteria to ensure that analyses would be unbiased and objective.

Section 2028 requires the Interior Secretary to approve applications for permits to drill within as little as 10 days of completion, restricting the ability of federal land managers to assess and address the environmental impacts of a proposed project.

Finally, Sections 371-79 would transfer authority for environmental permitting in so-called "Refinery Revitalization Zones" away from the Environmental Protection Agency and the states to the Department of Energy. The agency has neither the expertise, nor the interest, in controlling the harmful pollution that refineries emit.

National Forests

Both Congress and the Bush administration have exploited the fear of wildfires to push forward measures to waive NEPA environmental reviews and appeals. Rather than pursuing non-controversial policies proven to protect homes and communities, the administration's disingenuously named "Healthy Forests Initiative" waives NEPA for a broad category of logging projects, including commercial logging, even in remote, wild, roadless areas of national forests, through five new categorical exclusions.

The Forest Service and the Department of Interior have added these new exclusions to their procedures. 68 Fed. Reg. 33813 (June 5, 2003). The related Healthy Forests Restoration Act of 2003 (Pub. Law 108-148) undercuts NEPA review of fire-rationalized logging that does not qualify for one of the categorical exclusions. It sharply limits logging-minded federal agencies' obligation to review and disclose the effects of potentially superior approaches to fire hazard reduction. The law also authorizes the Forest Service to develop a new, hurried appeals process for hazardous fuels projects and creates a new category of NEPA-excluded insect-related logging projects.

In addition, the administration has proposed to eliminate the current EIS requirement for major amendments and revisions of forest management plans. This rule change could end environmental analysis for changes in the comprehensive blueprint that guides each national forest, including changes that threaten wildlife populations and sensitive wildlife habitats. Final action on the rule is expected soon.

Transportation

In an effort to accelerate the pace of transportation projects, highway proponents who blame the environmental review process for delays have suggested restricting public participation and imposing unrealistic deadlines on participating federal agencies. In fact, the data have shown that more often than not delays are caused by a lack of funding and project complexity -- not environmental review (Federal Highway Administration, Reasons for EIS Project Delays, September 2000).

The administration has identified priority projects for fast-track review. (See, Executive Order 13274, Environmental Stewardship and Transportation Infrastructure Project Reviews, 67 Fed. Reg. 59449 (September 23, 2002)). The Department of Transportation originally selected 13 priority projects, and added six more in August 2004. Only one of the projects involves expanding transit. The rest involve highway, bridge or airport construction. A federal court found the expedited process for one of the projects, a four-lane highway proposal near Burlington, Vermont, unlawful (Senville v. Peters, 327 F.Supp.2d 335 (D. Vt. 2004)(Federal Highway administration failed to consider cumulative impacts and protection of parks)).

Meanwhile, Congress is considering limits to environmental review and public participation for highway projects in legislation reauthorizing highway funding in the Transportation Equity Act for the 21st Century (TEA-21). This statute, which governs how transportation funds are spent, expired in September 2003, but has been extended temporarily. Both the Senate bill (S. 732) and the House bill (H.R. 3) contain provisions that would weaken NEPA's application to transportation projects, such as limiting the consideration of alternatives. The Bush administration has its own proposal that also contains language affecting environmental review of transportation projects.

In 2003, President Bush signed legislation that would sharply curtail the right of citizens and communities to influence expansion projects at the nation's largest airports. The law (Pub. Law 108-176) gives the Secretary of Transportation unilateral authority to determine a project's purpose and need, as well as the alternatives that will be considered. It limits the role of other federal agencies, such as the U.S. Environmental Protection Agency, as well as that of state agencies. (See Section 304, adding § 47171 to 49 U.S.C. Part 471.)

Another bill signed by the president last year, the FY04 Energy & Water appropriations bill (Pub. Law 108-137) contained a legislative provision (or "rider") mandating construction of a costly, environmentally damaging road into the Izembek National Wildlife Refuge at the southern tip of the Alaska Peninsula. The rider cut short a public environmental review process that was working. It mandated the construction of Alternative 1 "notwithstanding any other provision of law." The rider required the Secretary of the Army, acting through the Chief of Engineers, to ignore the public comments received regarding other less costly and less environmentally damaging alternatives for a road and marine link between King Cove (an Alaska Native community) and Cold Bay, which has a large, all-weather airport and runway (Sec. 115).

Water Resources Development

The Senate Appropriations Committee approved language on September 14, 2004, in the FY 2005 Interior appropriations bill (S. 2804), that would stop the Army Corps of Engineers from releasing water from reservoirs in Montana, North Dakota, and South Dakota into the Missouri River if the water level remains below 40 million acre-feet. Despite the significant potential harm to fish populations in the river, wildlife and other downstream uses, the rider (Sec. 338) requires the Corps to stop releasing water notwithstanding existing law, including the environmental review and public participation required by NEPA. The language was dropped before the bill was approved by Congress.

Last Congress, Rep. Young (R-AK) introduced legislation (H.R. 2557) that would concentrate authority for environmental review for dams, flood control and other water resource projects in the agency promoting these projects -- the U.S. Army Corps of Engineers. See Section 2028(k)(2). The bill also would limit the Corps' long-standing obligation to assess new information that may affect a project and its impact. Section 2028(h)(4). This bill would dramatically decrease scrutiny of Corps projects at a time when both the National Academy of Sciences and the Army Inspector General have called for an increase in scrutiny. Some improvements were made to the streamlining language while under consideration by the House Transportation and Infrastructure Committee. Although the House approved H.R. 2557 on September 24, 2003, the Senate did not complete action on the bill. Similar legislation is now under consideration.

Oceans

On April 14, 2005, the House Subcommittee on Fisheries and Oceans held a hearing on the relationship between NEPA and the Magnuson-Stevens Fisheries Conservation and Management Act (MSA). While some complain that NEPA's requirements in fisheries management are time-consuming and duplicative of what the MSA already requires, only NEPA mandates an alternatives and cumulative impact analysis. Congress is considering two proposals regarding NEPA compliance within the fisheries management regime. The first would include sufficiency language within the MSA to completely exempt fisheries management from complying with NEPA. The second proposal would amend the MSA to include NEPA-like requirements within the fisheries management process while exempting such activities from NEPA itself.

Federal courts have turned back several efforts by the Bush administration to limit the application of NEPA to ocean activities. In August 2003, a federal judge restricted the Navy's Low Frequency Active ("LFA") sonar program for failing to consider reasonable alternatives that could minimize damage to marine mammals and fish. NRDC v. Evans, Opinion and Order on Cross Motions for Summary Judgment, C-02-3805-EDL (N.D. Cal. August 26, 2003). In addition to violating NEPA, the court found that the Bush Administration had violated the Marine Mammal Protection Act and the Endangered Species Act. The court ordered the Navy to negotiate with NRDC to develop limits on where, when and how the Navy uses LFA for testing and training.

Previously, a different federal judge had rejected a legal argument advanced by the Bush administration that NEPA does not apply to the oceans beyond U.S. territorial waters -- 3 nautical miles from the nation's shorelines -- within the so-called exclusive economic zone (EEZ). NRDC v. U.S. Dept. of the Navy, Order on Cross Motions for Summary Judgment, CV-01-07781 CAS (RZX) (C.D. Ca. Sept. 19, 2002).

The EEZ is a vast area extending 200 nautical miles from shore, containing millions of square miles of rich ocean habitat where the U.S. exercises exclusive control over fisheries, endangered species, marine mammals, marine habitat and other natural resources. This case involved another aspect of the Navy's use of powerful sonar testing in the oceans, the Littoral Warfare Advanced Development Program ("LWAD"). Removing the application of NEPA from the EEZ would allow a variety of harmful activities to occur in the oceans -- including waste dumping, commercial fishing and oil and gas drilling -- without careful review of environmental impacts, assessment of alternatives, and opportunity for public scrutiny that NEPA currently provides.

Grazing

Thousands of grazing allotments have never had any environmental review completed under NEPA. While the Bureau of Land Management began to apply NEPA to grazing management in the 1980s, the Forest Service waited until the 1990s and has conducted environmental reviews on only a small percentage of individual allotments under its jurisdiction. For the past several years, Congress has allowed both agencies to renew grazing permits without environmental review, even when extensive resource damage is occurring. (See, e.g., Pub. Law 108-108 (Sec. 325), signed into law by President Bush on November 10, 2003.) Now, for the first time, up to 900 Forest Service grazing allotments through 2007 have been categorically excluded, exempting them completely from environmental review and public oversight. (See FY 2005 Interior appropriations bill (Pub. Law 108-447, Sec. 339)).

Terrorism/ National Security

Congress and the President have granted the Department of Homeland Security (DHS) unprecedented, sweeping authority to exempt itself from all federal, state and local laws when constructing walls, fences, roads and other barriers along U.S. borders. This exemption could include NEPA, thus eliminating the agency's responsibility to inform and involve communities in proposed construction projects along the border, as well as the duty to consider less harmful alternatives. The exemption was included in the Supplemental Appropriations bill signed into law by President Bush on May 11, 2005. (Pub. Law 109-13, Title I, Sec. 102).

On June 14, 2004, DHS issued a proposed directive governing the agency's implementation of NEPA. 69 Fed. Reg. 33043. The agency proposes to exempt from environmental review as categorical exclusions a long list of activities, including emergency response training and "routine transportation, ... use, storage, ... and disposal" of waste, including radiological waste and special hazards. DHS is expected to finalize the directive in the next few months.