[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
NEPA: LESSONS LEARNED AND NEXT STEPS
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
Thursday, November 17, 2005
__________
Serial No. 109-37
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.gpoaccess.gov/congress/
index.html
or
Committee address: http://resourcescommittee.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
24-682 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
Henry Brown, Jr., South Carolina Mark Udall, Colorado
Thelma Drake, Virginia Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
TASK FORCE ON UPDATING THE
NATIONAL ENVIRONMENTAL POLICY ACT
CATHY McMORRIS, Washington, Chairwoman
TOM UDALL, New Mexico, Ranking Democrat Member
Ken Calvert, California George Miller, California
George P. Radanovich, California Edward J. Markey, Massachusetts
Chris Cannon, Utah Frank Pallone, Jr., New Jersey
Jim Gibbons, Nevada Grace F. Napolitano, California
Greg Walden, Oregon Jay Inslee, Washington
Rick Renzi, Arizona Mark Udall, Colorado
Stevan Pearce, New Mexico Raul M. Grijalva, Arizona
Henry Brown, Jr., South Carolina Jim Costa, California
Thelma Drake, Virginia Nick J. Rahall II, West Virginia,
Louie Gohmert, Texas ex officio
Richard W. Pombo, California, ex
officio
------
C O N T E N T S
----------
Page
Hearing held on Thursday, November 17, 2005...................... 1
Statement of Members:
McMorris, Hon. Cathy, a Representative in Congress from the
State of Washington........................................ 1
Rahall, Hon. Nick J., II, a Representative in Congress from
the State of West Virginia, Prepared statement of.......... 17
Statement of Witnesses:
Connaughton, James L., Chairman, Council on Environmental
Quality.................................................... 2
Prepared statement of.................................... 4
Dreher, Robert G., Deputy Executive Director, Georgetown
Environmental Law and Policy Institute..................... 36
Prepared statement of.................................... 38
Goldstein, Nick, Staff Attorney, American Road and
Transportation Builders Association........................ 47
Prepared statement of.................................... 49
Response to questions submitted for the record........... 56
Harwood, Alan, Principal and Vice President, EDAW, Inc....... 57
Prepared statement of.................................... 59
Martin, John C., Attorney, Patton Boggs LLP.................. 62
Prepared statement of.................................... 63
Response to questions submitted for the record........... 71
Yost, Nicholas C., Partner, Sonnenschein, Nath & Rosenthal,
LLP........................................................ 20
Prepared statement of.................................... 22
Response to questions submitted for the record........... 33
OVERSIGHT HEARING ON NEPA: LESSONS LEARNED AND NEXT STEPS
----------
Thursday, November 17, 2005
U.S. House of Representatives
NEPA Task Force
Committee on Resources
Washington, D.C.
----------
The Task Force met, pursuant to call, at 10:37 a.m., in
Room 1324 Longworth House Office Building, Hon. Cathy McMorris
presiding.
Present: Representatives McMorris, Tom Udall, Gibbons,
Renzi, Brown, Drake, Gohmert, Inslee, and Grijalva.
STATEMENT OF HON. CATHY McMORRIS, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WASHINGTON
Miss McMorris. The hearing will come to order.
This is the second and final hearing of the Task Force on
Updating the National Environmental Policy Act. As I stated
previously, this Task Force will build upon the work of the
prior NEPA Task Force and put forth recommendations for
updating and improving NEPA.
Through the course of five field hearings and one hearing
here in Washington, the Task Force has conducted an
unprecedented examination of NEPA and its impact. Witnesses
have represented nearly every sector of industry; national and
regional environmental groups; tribal interests; as well as
Federal, State, and local governments. We have heard countless
times and in countless ways that NEPA is a good law born of
good intentions. I completely agree.
However, the Task Force has also heard that NEPA needs some
measure of reform. The reform ideas have not been to eliminate
or gut the law. On the contrary, there have been reasonable
proposals aimed at providing certainty and clarity to the NEPA
process.
Despite what those who fear change would suggest, Congress
has a burden to ensure that the laws we create, like NEPA,
continue to meet their intent. Sometimes that means the laws
need to be reviewed and revisited no matter how controversial
that might be. It has been the mission of this and the previous
NEPA Task Force to gather information and take a measured
approach before embarking on the task of reforming NEPA.
This hearing will serve two purposes. The first is to
understand what lessons can be learned from previous hearings.
The second is to explore the possible effects of implementing
the recommendations put forth by the Task Force.
One of the key elements of NEPA is public participation. In
keeping with that practice, even though we only have six
witnesses here today, we want to hear from everyone; and I
encourage anyone who is interested to submit comments to the
Resources Committee so that we can take all thoughts and
recommendations into consideration.
Do you have any opening remarks you would like to make?
Miss McMorris. OK, at this time, I would like to introduce
our first panelist. To give us CEQ's perspective on NEPA is
James Connaughton, Chairman of the Council on Environmental
Quality. I thank you for joining us here today.
It is the policy of the Resources Committee to swear in
witnesses, so if you would stand and raise your right hand.
[Witness sworn.]
Miss McMorris. Let the record reflect that the witness
answered in the affirmative.
Miss McMorris. So at this time--if or when Congressman
Udall arrives, we are going to give him the chance to make some
opening remarks, but at this point we are going to go ahead. So
if you would share with us your thoughts, we really appreciate
you taking the time to be here.
STATEMENT OF JAMES L. CONNAUGHTON,
CHAIRMAN, COUNCIL ON ENVIRONMENTAL QUALITY
Mr. Connaughton. Great. Thank you very much, Chairwoman
McMorris, Congressman and distinguished members of the
Committee. I am pleased to be here today to discuss the
implementation and improvement of the National Environmental
Policy Act.
I think I need to begin, Madam Chairman, Chairwoman
McMorris, reflecting on the time I spent in Walla Walla, in
your home district, where they are working on a project of
national resource restoration that is a testament to the local
involvement and collaboration and broad interest group activity
that leads to solutions rather than obstacles. So I think you
have in your own backyard an example of the kind of process we
want to replicate over and over again in the implementation of
NEPA.
That is why I was pleased to spend some time with you as
you launched your effort, and I am really delighted to be here
as we get to the back end of your public hearing process and
look forward as we move toward taking into account everything
that you have learned, and hopefully we can continue to provide
you the strong assistance that we have thus far.
Now, as the first modern environmental statute, NEPA is
remarkable for its simplicity. Its foundational objectives,
especially those found in Section 101, are as relevant today as
when Congress passed it. As I am sure you are discovering in
your review, the implementation and management of NEPA is a
story of innovation and success and one of challenges, hurdles,
and barriers.
At CEQ, we are working to replicate the successes and
address the challenges through practical steps to increase the
efficiency, the effectiveness, and the timeliness of NEPA
implementation. Let me highlight a few examples.
First, CEQ now requires as a matter of policy that Federal
agencies offer affirmatively tribal, State, and local agencies
formal cooperating agency status when appropriate. Through
increased training, we are increasing the positive benefits of
intergovernmental dialog.
Second, CEQ is working systematically to increase the
internal capacity of our Federal agencies to engage interested
parties earlier in the process and to use alternative dispute
resolution techniques to seek common ground.
I think it should be mentioned that the Morris K. Udall
Foundation is working closely with us to help advance that
capacity in our agencies.
Third, in response to concerns from the field about
judicial decisions that have created uncertainties about
cumulative effects analysis, CEQ recently issued guidance that
reemphasized our focus on using relevant, useful, available
information about the potential effects of proposed actions.
And, again, bringing things back home, Chairwoman McMorris,
Federal District Judge Shay in your home district recently
cited the CEQ guidance in upholding the adequacy of an
environmental assessment prepared by the Forest Service for
salvage sales.
Fourth, on May 18th, 2001, President Bush established the
Energy Project Streamlining Task Force, which has been
available to facilitate particularly challenging energy
projects and to develop more effective processes for NEPA
analysis for certain categories of energy-related projects such
as liquefied natural gas terminal siting and pipeline
infrastructure. A memorandum of understanding we developed for
pipelines was recently codified in the energy bill that
President Bush was proud to sign a few short months ago.
Finally, CEQ established a NEPA Task Force of experienced
senior career agency NEPA practitioners who produced the report
modernizing NEPA implementation. The Task Force and CEQ held
public roundtables around the country over the course of about
2 years, which generated a significant level of consensus and
common ground about important next steps to improve NEPA
implementation.
With the Chairwoman's permission, I would like to introduce
the report into your record as well as the stack of public
materials, which is--this is just a portion of them. In keeping
with our goal of using modern information techniques, we
actually will simplify it through the provision of digital
versions of the very voluminous record that we compiled that I
think would be a strong contribution to the record that you
yourself compiled.
Miss McMorris. Wonderful.
[NOTE: The information submitted for the record has been
retained in the Committee's official files.]
Mr. Connaughton. About a dozen interagency work groups have
now been established to develop guidance for implementing the
key recommendations from the Task Force report. For example,
they are working on a proposal to implement a GIS--Global
Information System--enabled mapping of past and ongoing NEPA
analyses in order to provide a rich and publicly accessible
data base of information. We have 35 years of information
sitting on a shelf, and we need to make that available and find
efficiencies in its future use.
Another example from the Task Force is recent guidance that
is grounded in the CEQ regulations calling for concise
environmental assessments. By concise, we mean short. The
original 15 environmental assessments that implemented this
guidance involve timber harvests. Interestingly, only two ended
up being administratively challenged, and none were litigated.
So we have found a template that has achieved some measure of
confidence and consensus.
Another innovative effort--and this is a modern tool that
is not familiar to many even up here in Congress--is the
increased use of environmental management systems as a
mechanism to help meet NEPA objectives and assure compliance
with the substantive statutes. An agency can effectively
implement and use an environmental management system to retool
its NEPA program and better integrate it into their day-to-day
management and policy and provisions, rather than have the NEPA
process run forward as a stand-alone sort of a silo-based
process.
Now based on the experience of 35 years and based on our
recent effort in the last several years working with the
Congress, we know that we can and we must do better when it
comes to the implementation of NEPA. While the statute has not
changed in 35 years, the statute itself requires that its
implementation continually evolve and improve; and that is why
we look forward to this fresh look that the Committee and the
Task Force is bringing to NEPA in the spirit of making sure we
take advantage of what works really well and replicate it
massively and we begin to untie the knots of what is not
working well.
So, to that end, Madam Chairwoman and distinguished members
of the Committee, I look forward to a very constructive dialog.
Miss McMorris. Thank you. I really appreciate you being
here this morning.
[The prepared statement of Mr. Connaughton follows:]
Statement of James L. Connaughton, Chairman,
Council on Environmental Quality
Madame Chairman and distinguished Members, I am pleased to be here
today to discuss the implementation of the National Environmental
Policy Act (NEPA), and the lessons we have learned over the past 35
years. I appreciate the Task Force's efforts to take a hard look at
NEPA, and I welcome the opportunity to review the Task Force's findings
and recommendations as a result of this process.
Today I want to reflect on the basic principles of NEPA, describe
several steps we are taking today to improve NEPA practice, and share
some thoughts on NEPA's future and our goals at CEQ.
Basic Principles
As the first modern environmental statute, NEPA is remarkable for
its simplicity. It does not set forth overly detailed procedural
requirements or regulations, but instead provides the foundation for a
process intended to deliver better performance. NEPA is a landmark
statute that is as relevant today as when Congress passed it in 1969.
At its core, Section 101 of NEPA lays out a clear bipartisan vision of
sustainable development:
``(...) it is the continuing policy of the Federal Government,
in cooperation with State and local governments, and other
concerned public and private organizations, to use all
practicable means and measures, including financial and
technical assistance, in a manner calculated to foster and
promote the general welfare, to create and maintain conditions
under which man and nature can exist in productive harmony, and
fulfill the social, economic, and other requirements of present
and future generations of Americans. [42 USC 4331]
President Bush is committed to making consideration of the
environment an integral part of how we conduct the people's business.
He continues to challenge us to find new ways to improve our
cooperative efforts to achieve our goals of enhanced quality of life,
environmental quality, and stewardship.
In my capacity as Chairman of the President's Council on
Environmental Quality, one of my main responsibilities is to oversee
implementation of NEPA. By focusing on modernizing agency NEPA
implementation, the President's goal is to ensure that federal
decision-making is more effective, efficient and timely and that the
goals and objectives of NEPA are better aligned with that decision-
making.
At CEQ, we have translated the President's charge into five goals
by which we can measure our success in modernizing NEPA implementation:
1. Stewardship: We must empower ground level resource managers to
be responsible and accountable for our nation's natural, cultural and
historic resources. NEPA processes should empower local federal
employees and their tribal, state and local counterparts to identify
and address all environmental aspects, and provide for the future
management of those resources. The NEPA process must provide
opportunities for public involvement early in the process and
throughout.
2. Science based decision-making: NEPA analyses and documents must
continue to provide a solid scientific basis for managing environmental
risks. Modern technology can reduce duplicative efforts, by enabling
agencies to use existing datasets and analyses as a basis for future
efforts.
3. Public involvement: Local involvement is the key. We emphasize
efforts to engage state, tribal and local agencies as cooperating
agencies to extend and expand public involvement.
Cooperating Agency status is the most formal way to provide
opportunities for tribal, state and local involvement. CEQ has required
as a matter of policy that federal agencies offer tribal, state and
local government formal cooperating agency status. I would like to
attach to my testimony a copy of CEQ's Memorandum to the Heads of All
Federal Agencies on Cooperating Agencies in Implementing the Procedural
Provisions of NEPA (January 30, 2002).
In addition, we have increased our training for tribal, state
and local government officials that have an interest in formal
cooperating agency status. Our efforts have had the effect of
increasing the intergovernmental dialogue with tribal, state and local
governments. Indeed, even agencies that would rather not assume the
responsibility for a formal role have taken the opportunity to enhance
effective and timely participation.
4. Innovation: Market forces, incentives and research and
development are three ways to refocus our thinking about how future
actions can protect our resources. NEPA analyses should include
innovative mitigation and protection measures that can take evolving
technologies and practices into account.
5. Compliance: NEPA's goal to enhance and protect the human
environment includes the need to comply with environmental laws,
regulations, and directives. As directed in CEQ's implementing
regulations for NEPA, we must, to the fullest extent possible,
integrate compliance with all environmental requirements into a single
set of directives and then translate that into our resource management
operations and activities.
NEPA has been the subject of a comprehensive review in this and
almost every prior administration. One fact stands clear, the
challenges, hurdles, or barriers to effective NEPA implementation
typically are not with the Act. In fact, it is how NEPA regulations are
implemented that most needs improving and modernization.
The efficiency and effectiveness of NEPA implementation has been
and is the focus of numerous practical steps CEQ has undertaken to
modernize NEPA practice. We are now implementing recommendations made
by the CEQ NEPA Task Force in its 2003 report to CEQ, Modernizing NEPA
Implementation. Let me highlight several consequential examples.
Public Involvement
The NEPA process brings together interested parties with various
perspectives and views. NEPA provides all interested parties a voice
and a role in framing our decisions. This aspect of NEPA has proven
successful in avoiding, resolving, or at least lowering the temperature
of the conflicts that can complicate environmental and natural resource
management and policy.
CEQ regulations call for public involvement in all NEPA analyses,
and we continue to encourage agencies to be proactive in engaging the
public in NEPA activities at all levels. Early involvement by a better
informed public narrows potential conflicts--we know this from 35 years
of practice and experience.
Conflict Resolution
To further minimize potential conflicts, we must also ensure that
interested parties participate in the ongoing dialogue and are closely
associated with our decisions. In doing so, we ensure that interested
parties have a sense of ownership of the outcome, even if the outcome
is not exactly as they want.
While litigation is one subset of the ways conflicts can be
addressed, it can be costly and time consuming, and is not the only way
in which conflicts can be resolved. CEQ is working with the Institute
for Environmental Conflict Resolution at the Morris K. Udall Foundation
to systematically increase the internal capacity of federal agencies to
use alternative dispute resolution techniques early in the process,
bringing parties together to seek common ground and accept compromise.
We have referred specific matters to the Institute for assessment and
mediation, and I would commend the Institute's work to this Committee.
We are now in the process of implementing changes designed to
improve and focus the NEPA process. I especially want to highlight
today the work of the CEQ NEPA Task Force, and thank them for more than
three years of efforts on this important topic. The task force included
seasoned, experienced agency NEPA practitioners who sought input and
advice from every sector.
Their report, Modernizing NEPA Implementation, was issued in
September 2003. Subsequently, public roundtables were held around the
country to review the report and its more than 50 recommendations. I
ask that the full report, public comment records, and reports from the
public roundtables be entered into the hearing record along with my
testimony.
Cumulative Effects
Recently, there has been concern at the ground level over the
increasing scope of cumulative effects analysis being required by the
courts. In response, CEQ recently issued guidance on consideration of
past actions in agencies' cumulative effects analysis. That guidance
re-emphasized our focus on using relevant, useful, available
information about the potential effects of proposed actions. Judge Shea
in the Federal District Court for the Eastern District of Washington
recently cited CEQ's guidance in upholding the adequacy of an
environmental assessment prepared by the Forest Service for salvage
sales in the Conservation Northwest v. Forest Service (Case 2:05-cv-
002200-EFS, filed 08/26/2005).
Energy Projects
On May 18, 2001, pursuant to a recommendation contained in the
Administration's National Energy Policy, the President signed Executive
Order 13212, establishing an interagency Task Force on Energy Project
Streamlining (``Energy Project Task Force'') to monitor and assist
federal agencies in their efforts to expedite their review of permits
and actions. The Task Force sought to accelerate the completion of
energy-related projects, increase energy production and conservation,
and improve transmission of energy. Operating under direction from CEQ,
the Energy Project Task Force originally focused on both specific
proposed projects and broader management issues. The Energy Project
Task Force is still active today with responsibility for specific
proposed projects now lying with the lead agencies, and CEQ focused on
providing guidance and developing processes to address the effective,
efficient and timely preparation of NEPA analyses and documents for
energy-related projects.
Liquified natural gas (LNG) terminals and pipeline infrastructure
are two areas where, as a result of the work of the Energy Project Task
Force, we have taken great strides in developing a timely,
collaborative NEPA framework. We developed Memoranda of Understanding
(MOU) that call for early coordination among all federal agencies with
a role in making and implementing the proposed actions involving
pipelines and LNG ports and terminals. This process calls for
developing and adhering to timelines as well as providing opportunities
for tribal, state and local involvement.
Healthy Forests
In carrying out the President's Healthy Forest Initiative, a large
part of the administrative response to the threat of increased
devastation from wildfires involved categorical exclusions and
environmental assessments. Categorical exclusion is a term that I find
implies an exemption or exclusion from NEPA. In fact, a categorical
exclusion is based on the administrative record that demonstrates
through reasoned analysis and consideration of past activities that
certain classes of actions typically do not individually or
cumulatively have significant effects on the human environment.
This application of NEPA requires that the analysis be done up
front to identify those forest hazardous fuel reduction activities that
merit exclusion from further analysis in an environmental assessment or
environmental impact. Of course, under CEQ's NEPA regulations, agencies
must allow for ``extraordinary circumstances in which a normally
excluded action may have a significant environmental effect'' when
applying a categorical exclusion to a specific proposal. Use of
categorical exclusions allows agencies to focus on activities that do
have the potential for significant environmental impacts.
Similarly, CEQ provided guidance grounded in our regulations that
called for focused, concise and timely environmental assessments.
Although 15 environmental assessments were originally prepared for the
first hazardous fuels reduction forest thinning projects that involved
timber harvests, only two were administratively challenged,
unsuccessfully, and none were litigated.
Information Technology
Another set of recommendations is focused on improving our use of
information technology. My alma mater, Northwestern University, houses
the most complete library of Environmental Impact Statements (EIS) in
the country. We are working with partners to develop a proposal to
implement interagency GIS-enabled mapping of past and ongoing analyses
to provide a rich database of existing information, facilitate timely
access to information by decision makers and the public, and provide
perspective on the number, extent and cumulative effects of proposed
actions nationwide. It is now time to use today's technologies to make
the wealth of information in NEPA documents more readily available.
The Task Force report also calls for guidance that empowers
agencies to prepare concise, focused environmental assessments.
Implementing these recommendations will help focus decision-makers on
analyzing and documenting the types of proposed actions likely to have
significant environmental impacts and merit documentation in an EIS.
Environmental Management Systems
The Task Force also recommended increased use of environmental
management systems as a tool to help meet our objectives under NEPA. An
Environmental Management System (EMS) is a set of processes and
practices that enable an organization (like a federal agency) to reduce
its environmental impacts and increase its operating efficiency.
Building on EMS concepts, an agency can retool its entire NEPA program
to include:
Procedures to identify an agency or facility's
environmental impacts and set objectives and targets for improved
environmental performance;
NEPA implementation and operation systems that set
responsibilities, require training and awareness from everyone
according to their responsibilities, and use NEPA for documentation and
operational controls;
Practical programs for checking and corrective actions,
including monitoring and measuring performance towards continual
improvement targets; and
Management review requirement, not just for the signature
on a decision document, but also to ensure that the NEPA program is
suited and continually adapted to changing conditions and information
This process can help translate the general concepts of NEPA into
day-to-day management and policy decisions that reflect our commitment
to continual improvement, pollution prevention, compliance with
relevant environmental laws, and additional requirements that an
agency-has voluntarily adopted.
We encourage federal agencies to look at EMS as their main tool to
implement NEPA. Agencies must still apply the statutes and regulations
because EMS requires agencies to assess all environmental aspects
including compliance obligations. It therefore does not avoid elements
of NEPA; it actually embraces and amplifies the philosophy of NEPA.
Conclusion
It is a testament to the vitality of NEPA that the statute has not
been changed in 35 years in any substantial measure. CEQ regulations
themselves have stood the test of time. NEPA has however undergone
comprehensive review in this and almost every prior administration. To
put the Act in perspective, federal agencies prepare annually
approximately 50,000 Environmental Assessments and 350 Environmental
Impact Statements. Between 2001 and 2004, approximately 140 cases were
filed annually involving a NEPA-based challenge, and approximately 13
injunctions were issued each year.
We take great pride at the federal level that 20 states have
adopted a State-level environmental planning process that is similar to
NEPA. Furthermore, many countries around the world have taken NEPA as a
model for their own environmental review practices.
But we can and we must do better. We must renew our efforts to
provide decision makers and the public with relevant and timely
environmental analyses that add value to the way federal agencies go
about their business. By returning to the core principles of NEPA
practice as it was intended and learning from the past 35 years of
implementation activities, we can modernize NEPA practices for the new
millennium.
I am committed to working with you and all interested parties
involved to continue a living NEPA process. Senator John Chafee, one of
the greatest environmental statesmen of the Senate, described NEPA as a
``tall order, but an important one.'' I agree and look forward to the
Committee's report and recommendations.
Thank you very much.
______
Miss McMorris. If you would just take a moment, I would
like to hear a little bit more about CEQ's Task Force; and if
you would just share some of what have been some of the
successes and then also some of the challenges in implementing
the recommendations that you were able to gather in your
efforts around the country with the Task Force.
Mr. Connaughton. Thank you very much.
When I came into my job in June, I inherited a couple of
decades of NEPA problem statements. So NEPA is constantly being
under review, there is constant questions and concerns about
its implementation, and we have a fairly good and long record
of a lot of the challenges in its implementation.
Sitting down with my senior career staff, who have
collectively probably a century's worth of NEPA experience--
maybe I'm dating them too much--that they strongly recommended
that we pull over to the White House some of the most seasoned
NEPA experts from the agencies. Some of these professionals
have been working on NEPA since its inception, so a few of them
have been at it for 35 years.
We brought them to the White House; and we said, we don't
want to tell you what needs to work best. We would like you to
do a process, canvassing your agencies, canvassing outside
parties, and tell us what we think can help you do your job
better.
It was a wonderful process. We had open houses for the
public to come in. Everything we did is posted on the--was
posted on the Web site. In fact, I think we innovated anything
FOIA-ble we put on the Web site. So there was no--we didn't
need the statute FOIA. We just made the information available
as it came in to us so everybody could see what was coming in.
And then we received a whole series, 50--more than 50 groupings
of recommendations from the Task Force.
Now we didn't stop there. We then went out and had about I
think it was six public hearings about the recommendations from
the Task Force to be sure that we--you know, did we get it
right? Did we not get it right? All for the purpose of then
coming back into CEQ to say, all right, we have the senior
officials, we have the public, they have commented on the
recommendations. Now how can we go forward? So we now have a
blueprint for action in this Task Force evidence.
What is great is the Task Force members are now back at
their agencies, and they own their work product. So they are
very excited about carrying forward what they have achieved,
and that has led to these subinteragency groups that I
mentioned.
A few items just to give you an example. We are pushing
environmental management systems throughout the Federal
Government. We are on target to the implementation of 1,800
environmental management systems at Federal facilities and
Federal lands operations. We have a very specific focus on
collaboration and cooperative conservation as an ethic to the
agencies that will assure earlier public engagement and
involvement in the NEPA process, which tends to minimize
disputes.
Then we also have very specific, good old-fashioned roll-
up-your-sleeve type stuff, which is a lot of the greater use of
information technology, how to use Web-based resources, how we
share information technology. These are the kinds of things
that--you know, what happens within the NEPA process if you do
a big EIS, you sort of wipe your brow and say, thank goodness,
I'm done with that; and it sits on the shelf. Well, we want to
translate this historical record into a living record, and we
want to translate future processes into a living process of
adaptation as we've learned from our experience in carrying out
the Federal activities that give rise to NEPA to begin with.
So it's a--you know, I have given you just a quick
snapshot. But we have strong consensus on the recommendations.
In fact, I am pleased that I can only report a few naysayers on
just a few issues. I mean, that's how strong this foundation
is.
I think it's the kind of record that we hope the Committee
will look closely at, because I think there are a number of
areas, whether it's in the context of NEPA itself or the
context of the statutes that govern agency activities, a lot of
these recommendations could use the force of congressional
approval.
Miss McMorris. From my perspective, the effort by this Task
Force is to complement what you have already started and just
to take a look at where we can even maybe do some more work to
encourage further improvement of the process.
Mr. Connaughton. Well, and the example I would give is the
pipeline memorandum of understanding which now found its way
into the energy bill. So we now have--it's statutory, which is
fabulous. Also, in the healthy forest context, we made a number
of very effective improvements to the NEPA process for forest
restoration work, and that found its way in with additional
concepts and ideas from the Congress in the Healthy Forest Act
which earned tremendous bipartisan support.
Miss McMorris. Would you just--while you are on those two
subjects, because there were NEPA-related provisions in both
the Healthy Forest Restoration Act and the energy bill, would
you comment on those who suggest that this is death by a
thousand cuts to NEPA?
Mr. Connaughton. Actually, it's improvements by many
measures to NEPA. We have 35 years of experience, and you are
supposed to learn from your experience. And when you learn from
your experience about something that works better--you know,
it's the job of the Administration and it's the job of the
Congress to make things better. And I think when you look at
the breadth of support for the healthy forest provisions on
NEPA, the bipartisan support in the Senate was 81 votes, for
example. I think that gives you a good sign that this is a net
improvement to environmental protection and a net improvement
to good government.
So I can talk about this highly qualitatively. You know, if
you want, I can get into the wonky weeds as well.
Miss McMorris. No, that is good, very good.
Congressman Gohmert, do you have any questions?
Mr. Gohmert. Yes, thank you, Madam Chairwoman.
I appreciate your testimony here today, Mr. Connaughton.
Following up on the last line of questioning, you had
mentioned that some of the regulations had found their way in
the energy bill and the healthy forest bill, and you had said
that was fabulous. There are, of course, some commentators that
believe the CEQ regulations and guidance are somewhat ignored
by agencies and courts. Since you felt that was fabulous that
those were included, why not amend the NEPA Act itself or NEPA
itself to put more teeth into the CEQ regulations?
Mr. Connaughton. Well, there are two categories of
potential statutory improvements. So one is what we talked
about, which is where the overall framework of NEPA and the
flexibility of the CEQ regulations, which are just 20 pages
long, they are not very intensive, where what is needed is how
you tailor that broad guidance to a specific subject matter,
such as forest management or energy projects, for example. Or,
for that matter, we just had a recent highway bill that had
some very useful NEPA provisions in it.
So there is a category where what is actually not at
issue--NEPA is not at issue, the statute; and the CEQ regs
aren't at issue. What's at issue are implementing mechanisms
which it's helpful to codify the statute so we don't have
litigation that delays our ability to put them into effect. You
know, people fear change, although NEPA compels change, the
statute itself. It's--the whole implication of it is we have
change and improvement.
Now there is the category of are there places where you can
improve or enhance the CEQ regulations? Are there places where
you can add to the NEPA statute? And I think that's what the
subject of this Task Force activity has been.
I have seen a number of very interesting ideas coming out
of the public process that you have engaged in on subjects such
as timelines, on subjects such as cooperating agencies, on some
of these what I would call horizontal subjects that would apply
across the government; and I think that would be a place where
we would want to look.
I would want to be careful about using a NEPA statutory
amendment process to deal with what really are subject matter
implementation issues, because we should focus this broader
NEPA effort on these things that will have horizontal benefit
to all these.
Mr. Gohmert. You yourself indicated that litigation was a
problem; and if you have seen the chart showing the rise in
litigation over the years since NEPA has been in effect,
clearly something needs to be addressed. And, yes, NEPA does
have a lot of overall flexibility.
The problem with that is that not all judges had the
philosophy that I did that I believed was part of the
Constitution, that you shouldn't legislate from the bench. So
flexibility to some judges is seen with great glee, meaning I'm
going to do the legislating myself from the bench. Some of us
left the bench and ran for the legislature to get to do that;
others just go ahead and take their robe as a right to do that.
That is why I'm concerned that we need to take some of the
flexibility out and make it more rigid so even the more
ignorant judges--of the Constitution, that is--would understand
what the law says when it's in black and white.
But there have been some recommendations that CEQ itself
might be an arbitrator in helping resolve some disputes. What
are your thoughts on that?
Mr. Connaughton. That is an activity that we engage in
frequently. Usually, it tends to focus on the higher-profile
and highly complex issues; and the NEPA statute and the
regulations itself has a process built in for bringing issues
of interagency conflict to the Council for resolution.
What we found is the built-in process is a bit formalistic
when we can achieve mediated or arbitrary outcomes in a more
collaborative fashion, and so that would be a very good area
for us to talk about.
But I would also underline, even more importantly, building
capacity in the agencies to engage in dispute resolution is
probably a bigger long-term benefit than putting a huge focus
on bringing all of those to the White House. Because what
happens is if you get agencies in disagreement or they are in
disagreement with the States, people stake their ground waiting
for the judge and the White House, and it ups the stakes. When
what we really want is local accountability and local
responsibility for reaching reasonable outcomes. So I would
look at both.
Mr. Gohmert. Thank you.
Miss McMorris. Representative Grijalva.
Mr. Grijalva. Thank you very much, Madam Chair. If I could,
for the Chairman, let me go into your written testimony; and I
apologize for not being here for your oral testimony.
In part of your written testimony, you make the statement:
NEPA has been the subject of a comprehensive review in this and
almost every other prior administration. One fact stands clear,
the challenges, hurdles, or barriers to effective NEPA
implementation typically are not with the Act. In fact, it is
how NEPA regulations are implemented that most needs improving
and modernization.
Could you elaborate on that point?
Mr. Connaughton. Yeah, I could.
If you take the NEPA as it was enacted, which has broad
general guidance and then a number of administrative
provisions, the general guidance in the statute itself, I
haven't seen any recommendations to change what's there, OK,
what's in the statute. So that's stood the test of time.
What we do see is, on implementation, which is things that
are either, one, missing from the statute or things that are
the subject of how the agencies implement what the guidance
that comes from the statute and from the CEQ regs.
So, to give you a concrete example, an issue that's emerged
has been the issue of timelines for statutes of limitations,
for example, or the need for setting clear timelines and
management plans for when you do a NEPA. That is an issue of
horizontal interests. You know, it would fall under the broad
umbrella of the statute, and that could be a useful addition to
the NEPA statute.
Then there's other categories that are best addressed as
they were in the energy bill and the highway bill and in the
healthy forest legislation.
Mr. Grijalva. But the substance of the Act, based on your
writing that the Act is not the problem, and so--and as I
understand your testimony, you don't really have any concrete,
specific recommendations from your office as to the kinds of
discussions that we're having about NEPA and what needs to be
changed there. Am I correct in that assumption?
Mr. Connaughton. Well, actually, our office has identified,
through the Task Force report, which I mentioned in my oral
testimony which I would encourage you to----
Mr. Grijalva. For Congress to adopt.
Mr. Connaughton. There are elements in this that could be
useful if codified, because it would assure that this is not
just something being advanced by the executive branch but is
something that the Congress has wholly endorsed and supports
and would get behind in terms of moving the agencies forward.
This activity deals with the issues of NEPA implementation that
cut across agencies. So therefore----
Mr. Grijalva. But not specific to an action that Congress
needs to take in terms of the Act.
Mr. Connaughton. I think it's a useful foundation for areas
that Congress--we would welcome congressional--a hard look by
Congress.
Mr. Grijalva. In the conclusion of your written testimony--
and that will be my last point--and we have heard a lot of
discussion about how NEPA is burdened some in terms of its
regulation, how it slows things down, how the challenges
occurred legally and how that has been--that is the central
problem that theoretically this Task Force is looking at. In
your written testimony, you say: To put the Act in perspective,
Federal agencies prepare annually approximately 50,000
environmental assessments, 350 environmental impact statements.
Between 2001 and 2004, approximately 140 cases were filed
annually involving a NEPA-based challenge, and approximately 13
injunctions were issued each year.
It begs the question about, is this really theoretically
the kind of burden that we have been hearing from some of the
witnesses during this Task Force hearing?
Mr. Connaughton. Well, actually--so let me amplify on the
point in my testimony. I emphasize in my oral testimony that we
have a rich experience of highly successful and innovative NEPA
implementation. It doesn't produce conflict. Agencies go about
their business. The local communities are well satisfied. We
need to take those successes and figure out how to apply them
in the places where we do hit train wrecks, and we've had some
big train wrecks under NEPA.
If you think of the way litigation works, 140 cases a year,
you know, over 20 to 30 years, and then behind that are all the
cases that didn't get filed or the NEPA processes that got
unduly delayed or were just dropped, you know, that's a pretty
sizable effort of conflict in government.
Now--so we can look to this area that works really well and
say, hey, so what's going on there that's working well and how
do we apply it in the situation where we do hit some pretty big
roadblocks?
You know, if you have highway projects delayed for 10 years
because of NEPA, that's a real burden to that community. And,
by the way, NEPA applies on the community level, and so I
wouldn't want to discount the challenges and obstacles that
this process can create. So our goal is how do we make it more
effective, more timely, reduce the potential for conflict?
That's the kind of thing that presumably everyone should be
able to get behind, and we've got some good ideas for how to do
that.
Mr. Grijalva. Thank you, Madam Chairwoman. I don't think
you eliminate controversy by undoing public process----
Mr. Connaughton. Not at all.
Mr. Grijalva.--and I would hope that's not the intent of
the testimony.
Mr. Connaughton. No.
I would note, in the Task Force recommendations and
guidance that CEQ has done in the last several years, we have
actually worked to amplify public involvement by cooperating
agency status by--and also by specific direction of earlier
public involvement in planning and decisionmaking and through
integrating the NEPA process into those planning efforts,
rather than have it occur in some separate process. So our goal
has actually been to amplify and bring public involvement
sooner as a way of reducing conflict.
Mr. Grijalva. Thank you, sir. Thank you.
Miss McMorris. Mr. Renzi.
Mr. Renzi. Thank you very much.
Thank you for your testimony. I want to continue along this
line of questioning just with a little maybe clarification and
teaching from you to me so I can understand a little bit
better.
I can remember back when we voted out of this Committee the
Forest Health Initiative, the new standard that would be put in
place that a judge who issues an injunction would have 45 days
to then have to take up that injunction. It was meant to be a
resource and an asset to the communities that were affected,
particularly like in my district the wildfires that we had, or
those that were of the opinion that sometimes the litigation
process was being used as a delay tactic more than anything
else.
It is interesting to hear you talk about arbitration, maybe
binding arbitration, before a person goes to court. Is there
any recommendations or thoughts that you have on having a new
NEPA reform policy that would include some sort of a factor or
a day limit or an ability for a judge, if he does issue an
injunction, for him to have to take it up in his own court
within a certain time frame? Now I know the 45 days was
eventually compromised in the Senate version, but do you have
any thoughts on that?
Mr. Connaughton. Yes. Let me speak specifically to the
example you have raised, Congressman. In that instance, the
process was designed such that, if there was a conflict, we
would get to court faster. Because in that case a decision
delayed would be a decision denied because you would lose the
environmental benefit of the forest restoration. So by delaying
the process it would no longer become viable or valuable to do
the forest restoration work if you had to wait a year until the
next season.
So that's one of those examples where we encouraged early
public involvement and then very early--if there's going to be
a conflict, very early judicial review and then very prompt
judicial decisionmaking. Because our concern was we would lose
the environmental benefit of the restoration project.
So that's a clear example where a tighter process and a
more clearly defined process would produce a significantly
greater environmental benefit on a long-term scale. So this is
an area that is very worthy of looking at.
What we would want to be cautious about is the question of:
Could you do it on a one-size-fits-all basis? A forest
restoration project to remove some dead wood and restore the
ecological foundation is one set of activities. A major highway
project is something different entirely. So there are some
areas where we could I think shape a horizontal approach. There
are others where we would have to figure out how to tailor it
to meet differing needs.
Mr. Renzi. I had a major highway project, and the cost of
concrete was skyrocketing daily. Do we have a time element
there?
Mr. Connaughton. To me, it's not whether you would do it.
It is how you structure the time element. You know, 45 days for
a forest project may be different in a highway context. That's
the only caution I would raise.
I would note, though, under another executive order we have
a Highway Task Force to streamline the NEPA process there, and
we've actually been able to cut years off the planning and
implementation process. That goes directly to the point you
raise. We can save the taxpayer millions of dollars in costs to
achieve a desired project if we do this process more
effectively. And we have some very good examples now--we've
been at it for a couple of years. We've got some very
interesting examples that would be a model for how to do it in
other highway projects. And I think, you know, if you're
interested in that, we have a pretty good record that relates
to that as well.
Mr. Renzi. Excellent. Thank you for your comments.
Thank you, Chairwoman.
Miss McMorris. At this time, I would like to welcome Mr.
Udall to make any comments, opening statements you would like
to make, and then proceed with questions.
Mr. Tom Udall. Thank you very much, Madam Chair; and let me
apologize for being late. We had a caucus meeting with
Congressman Jack Murtha, who is one of our major leaders on
policy in Iraq. He is making a major statement today to the
press as to how we should proceed, and I just came from there.
So I apologize for the lateness.
Madam Chair, we join you in welcoming our panel of
witnesses and thank them for their time and effort to be with
us today. In particular, we are pleased to be joined by James
Connaughton, Chairman of the Council on Environmental Quality;
and we look forward to hearing from him regarding the Bush
Administration's--on some of the allegations that have come up
during previous hearings.
Let me also say I have enjoyed working with you and other
members of the Task Force. It has become apparent that the
lessons we will take away from this process may be very
different, but I have appreciated your cordial and fair
approach to our work together, and I thank you for that.
As I indicated, it now seems clear that my view of NEPA
differs significantly from the views of those who have come
before the Task Force to criticize the statute. Where they see
delay, I see deliberation. Where they see postponed profits, I
see public input. Where they see frivolous litigation, I see
citizens requiring their government to live up to its
responsibilities. And where they see a barrier to development,
I see a shield that protects average Americans from the short-
sightedness of a massive Federal bureaucracy.
The characterization of NEPA put forth by critics is at
odds not only by the record developed by this Task Force but
also with the history of the statute. NEPA is the brain child
of environmental moderates, many of them westerners like the
great Scoop Jackson of Washington who championed the
deliberative public process included in NEPA. The law operates
as an antidote to the arrogance of big government and thus
should be embraced by anyone who trusts the American people to
take part in managing their public resources.
We look forward to hearing from our witnesses today during
this wrap-up hearing and await a final report of this Task
Force. And if I may proceed to a question at this point, Madam
Chair, since I still have some of my time left, with your
permission.
Miss McMorris. If you would just give him 5 minutes of
time.
Mr. Tom Udall. Thank you.
Mr. Connaughton, I notice in your testimony--and this is at
page 4--you talk about NEPA has been the subject of a
comprehensive review in this and almost every prior
administration. And you say: One fact stands clear. The
challenges, hurdles, or barriers to effective NEPA
implementation are typically not with the Act. In fact, it is
now NEPA regulations--in fact, it is how NEPA regulations are
implemented that most needs improving and modernization.
Could you talk to us a little bit about the thrust of that
statement, that it's the NEPA regulations and what you're
intending to do and how you're moving on that?
And can you tell us in a definitive way that you don't want
changes to the statute, as I'm sure your staff and others have
heard from our hearings that we have had that some have called
for outright repeal of NEPA, others have called for various
changes in the statute. Is the Administration position that
this is a good statute and it should be left in place and that
what we want to see--what you, as the Administration, want to
see is a movement to make it a more effective statute rather
than repeal? Please.
Mr. Connaughton. I will expand a little bit on some remarks
I gave to an earlier question, Congressman.
The record--first of all, I talk about reviews over time. I
indicated in my oral testimony that we have a lot of problem
statements that have been produced over time and some movement
on solving the problems. But in all of those episodes--and I
think it's true of the record of this Task Force, that there is
a broad core of activity under NEPA that is working great, OK?
And I think, in my conversation with Members from both sides
and from east and west, there's a recognition of where it's
doing really good work and working well. And then there is a
subset----
Mr. Tom Udall. Your report--your Administration report
basically said that, did it not?
Mr. Connaughton. That's correct. So what we are really
focusing on here, Congressman, are the areas where we are
facing challenges and some hurdles and maybe some
inconsistencies. So from, you know, where I sit, I'm actually
very pleased at how well the statute's working because it
allows us to take then a much more deliberate and focused look
at the places where we do have big challenges. And we do have
big challenges. We've encountered them in the energy area,
we've encountered them in the forest area. And the nice thing,
though, is the bundle that we need to look at is small in
relation to the overall operation of the program and its
successes.
Now, in terms of the statute, also from what I have seen,
including from the record of this Task Force, is the current
text of the statute, nobody is taking issue with it. I mean--
and so in that sense the original goal--but as you know,
Congressman, it's broad aspirational text, and that has stood
the test of time. In fact, it is my view we actually need to go
back to the future on that text, because it calls for a level
of adaptation of thinking and flexibility and public
involvement that we still do not realize in its implementation.
So when I go over the record of our Task Force activity,
which was done by senior career officials from across the
government, and when I look at what this Task Force has
conveyed, what I see are some opportunities for additions to
the NEPA statute that would provide very helpful guidance and,
by the way, some additional inspiration to the government
actors who are charged with the very mission that you described
so eloquently in your opening statement. And we shouldn't be
afraid of that.
If we found the ability to provide some more specific
direction on timelines, to provide some more specific direction
on the nature of public involvement, and we know from
experience that these processes are very good, we shouldn't be
afraid to then take something that could be more ambiguous or
subject to litigation in the administrative context and
clarifying it and solidifying it in the legislative context.
Which is why we did it in the energy bill. We did it in the
highway bill, again, with strong bipartisan support. We did it
in the healthy forest bill with strong bipartisan support.
I think there should be bipartisan interest in these very
specific--and these are good-government type of recommendations
we're looking at. There should be strong bipartisan interest in
continuing that improvement cycle.
Mr. Tom Udall. There is--and I see my time is out. But are
there any specifics that you can share with us today on
additions to the statutes, as you put it, or the--I don't see
anything in your testimony that--where you talk about specific
changes or additions to the statute. Are you prepared to do
that today?
Mr. Connaughton. This hearing is in the information
collection mode, and we are waiting for the report of the Task
Force itself to comment on what they've zeroed in on.
I would just note that in preparing this process through
our Task Force, which deals with these issues I described as
horizontal, that would apply across all agencies, we have 54
categories of recommendations. And we've commended this to the
Task Force for consideration as we look at ways of improving
the direction that comes from the statute. So I wouldn't want
to cherry-pick at this moment.
I would be--we are making progress administratively to
carry this forward. Some of this will go forward without any
problem, some of this may be subject to processes that would
delay it, and, therefore, to get a legislative lift to it would
be highly welcome. But I don't want to prejudge that right now.
I think we are in a good, constructive dialog mode, and I don't
want to leave things out, I don't want to say things must be
in, because I see some good consensus around some themes, and I
wouldn't want to prejudice that.
Mr. Tom Udall. Thank you.
And, Madam Chair, I thank you for your courtesies; and I
would just ask unanimous consent to put the opening statement
of Representative Nick Rahall, our Ranking Member on the
Resources Committee, into the record.
Miss McMorris. Without objection.
[The prepared statement of Mr. Rahall follows:]
Statement of The Honorable Nick J. Rahall, a Representative in Congress
from the State of West Virginia
Madame Chairwoman, thank you.
Let me thank the Ranking Democrat on this Task Force for his
excellent work. Tom Udall understands that most Americans whose lives
and livelihoods are directly impacted by federal land management
decisions want more information about those decisions and more public
input into them, not less. Congressman Udall has been an advocate for
NEPA and, therefore, an advocate for open, responsible and
representative government and we thank him for his efforts.
In addition, I would like to thank the other Members of the Task
Force from our side of the aisle for their work, in particular
Representatives Jay Inslee and Raul Grijalva, both of whom provided
leadership, as well as insight and energy to this process.
Madame Chairwoman, the record developed by this Task Force is
extensive, but it is not sufficient. To the extent this Task Force was
designed to provide a body evidence for the need to amend NEPA, it has
failed.
Perhaps this is because this Task Force plowed very little new
ground. Both the Clinton and current Bush Administrations conducted
comprehensive reviews of the law and made specific recommendations for
improving implementation without amending the statute.
Or perhaps it is because the argument put forth by industry
witnesses--that federal agencies should act less deliberately and
enable more rapid public lands profiteering--failed to resonate with an
American public stung in the wallet by huge energy conglomerates,
likely the greatest beneficiaries of NEPA changes, that are now
enjoying the largest profits in American history.
Or perhaps it is because the credibility of this Task Force was
repeatedly undercut by this Committee when it made sweeping changes to
NEPA in the energy and budget reconciliation bills despite the fact
that this Task Force had not completed its work.
Regardless, the burden of proof rested squarely on those proposing
to change NEPA and that burden has not been met.
Now we fully expect those proponents to pursue legislation to amend
NEPA despite the lack of justification. That is their prerogative.
But any such legislation must be seen for what it is--an attempt to
limit public input into federal decision-making and to weaken judicial
enforcement of the law--rather than as the solution to some poorly
defined problem with NEPA this Task Force was unable to uncover.
And we would caution our colleagues that such legislation will
almost certainly defeat its stated purpose. Through collaboration and
good planning, NEPA avoids more litigation and delay than it causes. We
face the ironic probability that ``fixing'' NEPA will create the very
problems proponents of change claim to want to resolve.
Madame Chairwoman, this Task Force set out to reveal problems with
NEPA, but in the end, the record it developed simply proves what we
have argued all along: NEPA is not broken and does not need fixing,
particularly not the kind of ``fix'' we fear proponents have in mind.
Thank you.
______
Miss McMorris. Mr. Brown.
Mr. Brown. Madam Chair, thank you very much. I notice that
we have a vote coming up at 11:30 to 12:00, so I just want to
ask these questions. But I do welcome and certainly enjoy the
dialog. Thank you, Madam Chairman.
Miss McMorris. Would you just--there has been some
conversation about codifying some of these NEPA
recommendations, some of the Task Force recommendations. Would
you just--as I'm hearing you speak, you do believe that there
is opportunities--I like the idea of additional inspiration,
that there may be opportunities where we could actually
strengthen and improve by clarifying, adding to the statute
when it comes to NEPA in such a way that would improve the
process. Is that what I'm hearing you saying?
Mr. Connaughton. That's correct.
I think, Chairwoman, you use the words clarity and
certainty. You know, certainly some of the timeline issues that
have emerged are issues that have created hesitancy out in the
field, some of these issues related to dispute resolution.
I would note, Congressman Udall, the institute that bears
your name is doing leading work with the Federal agencies to
teach them how to engage in broader public involvement
processes earlier and then to teach them how to access dispute
resolution processes before we find our way into courts. You
know, that is something that was not even considered in 1969.
But certainly the institute has done landmark work not just
nationally but globally in how to expand that capacity. And
it's not something our agencies budget for as much as they
could, it's not something that the State and local actors are
used to participating in, and so these are the places that I
think about in terms of improvement.
And it's also the case on this integration issue it's very
important. Because when NEPA was created we didn't have all of
our modern environmental statutes. You know, we didn't have the
Clean Air Act yet, we didn't have the Clean Water Act, we
didn't have RCRA, we didn't have some of the more recent
improvements to our natural resource management laws, all of
which have added new processes to deal with the substantive
elements of those statutes that then run in parallel with the
NEPA process.
Really what we need to find is to find a way to converge
those processes. Because that's really what NEPA intended. You
know, NEPA was ahead of time. I use the phrase we need to go
back to the future, take its central mission and figure out now
how to bring in a better coordinated and a more efficient
process. Because by fundamental is: If we are using up taxpayer
resources on process and not producing a good environmental
outcome, those are resources that are not being utilized in
other places. So the more we can take off the shelf things that
aren't creating impacts and streamline those processes and
dedicate our resources to the areas that require real
deliberation and, in fact, a higher investment in information
collection and information dissemination, then as a Nation we
are better off.
You know, this is efficiency, this is productivity, and--
but we cannot lose sight of the original mission of NEPA, which
is productive harmony. Productive harmony is a very important
phrase from that statute.
Miss McMorris. One of the concerns that has been raised is
that there is a difference in implementation among the
agencies, and I'm interested in your efforts with the
environmental management systems. And you mentioned that
there's 1,800, I think you said in your testimony.
Mr. Connaughton. We are on our way.
Miss McMorris. OK.
Mr. Connaughton. We have a lot of work to do, but we're on
our way.
Miss McMorris. Would you just elaborate a little bit more
on how many agencies have these systems in place and how would
these systems be affected by changes to NEPA or its
regulations?
Mr. Connaughton. More than--it's probably about two dozen
agencies are working on one or more EMSs. Obviously, the
Department of Defense is working on many of them, environmental
management systems. Where the environmental management system
approach has its greatest application in NEPA context is for
ongoing Federal operations, you know, the operation of a base,
a forest plan. You know, these are ongoing operations. Where,
if we could enhance their capacity to do an environmental
management system, which is a plan--it's a planning by
objective, and then it has a management review cycle to it and
has ongoing improvement, that whole philosophy and approach is
actually broader and more effective than the NEPA process. So
it can be used to harness the NEPA process and also then
harness in all of these other substantive statutory
requirements into a more orderly system of management. It also
gives you the confidence that there will be ongoing management
review.
One of the issues with NEPA that makes the litigation such
high stakes is the sense that this is your last shot at it, you
know. And so everybody says, boy, if this NEPA goes down, then
the whole project's over. But the environmental management
system can turn the NEPA process into a living process, which
is where you could actually agree that, you know what, this is
an issue that warrants further study, and we have an agreed
process to get the information we need and adapt our decisions
in keeping with the decision without waiting for 5 years for
the next big plan or the next big EIS.
So the adaptability and the breadth of the EMS for ongoing
operations could be a very, very powerful future outcome that
again, in my view, would expand on what NEPA was trying to
achieve and make it more certain for the public and also then
minimize the concern of courts about the accountability of
government. So I hope we can spend some time on that one.
Miss McMorris. Very good.
We should probably head over to the Floor. We have a couple
of votes. Thank you again for being here. I really appreciate
you taking the time.
We have a 15-minute vote and a 5-minute vote, and then we
will be returning. I would ask the next panel, if you can just
wait. We appreciate your patience. And everyone else, please
return. We will see you in a few minutes.
Mr. Connaughton. Thank you.
[Recess.]
Ms. McMorris. I will call the hearing back to order. Thank
you very much for waiting for us. I need to ask you to stand
and raise your right hand to be sworn in.
[Witnesses sworn.]
Miss McMorris. Let the record reflect that the witnesses
answered in the affirmative.
So we have a timer. We have asked each of these folks to
present for 5 minutes and then we'll open it up for questions.
And in the interests of time, we will just get started. So, Mr.
Yost, if you would begin.
STATEMENT OF NICHOLAS YOST,
SONNENSCHEIN, NATH & ROSENTHAL, LLP
Mr. Yost. Thank you, Madam Chairwoman, for inviting me
here, and thanks to you and to the other members of the
Committee.
As you know, I am Nicholas Yost from Sonnenschein Nath &
Rosenthal in San Francisco. I was, during the Carter
Administration, the general counsel for CEQ, and was the lead
draftsperson of the CEQ and NEPA regulations which remain in
effect today, with only--after some 25 years, with only one
amendment to one section, they have stood the test of time.
Madam Chairwoman, you said earlier that if we can make the
NEPA process more timely and more efficient, that would be a
win. I agree. And in order to streamline NEPA, to reduce delay
while preserving the benefits of the law, there are steps that
can legitimately be taken which I will address today.
Now, I will try and speak on four different issues,
briefly: one, the question whether there is, at times,
unwarranted delay in the NEPA process; two, the causes of that
delay; three, and elaborating on this, measures that can be
taken to reduce delay and otherwise streamline the NEPA
process; and four, discussion of measures that should not be
adopted in the name of streamlining NEPA, measures which would
instead undercut the action to the detriment of the Nation's
environmental protection.
I strongly believe that NEPA and its basic message, look
before you leap environmentally, serves the American people
immensely well. This statute has been a environmental success
story. It's been replicated in about half of our States, and it
has served as a model for environmental impact assessment laws
in more than 100 countries and may be the most imitated law in
American history. Also I should point out that I have spent
much of the last 20 years assisting clients through the NEPA
process and have had my own share of frustration with unneeded
delay in that process.
The goal should be to cut the fat but not the muscle.
Is there a problem with delay under NEPA? My impression is
that, on occasion, there is such delay. And it is most often
associated with applicant sponsored projects.
I think also that Chairman Connaughton was very sensible
today in stressing that in the vast number of projects that go
through NEPA review, there is no enormous controversy. NEPA is
doing its job. The project is becoming more sensitive as a
result of what is done.
What is responsible for delays in the NEPA process? Lack of
deadlines. And I will come back to that. But the absence of
deadlines, milestones and schedules in many NEPA processes
enables delay. I think this is the single most important
deficiency to be addressed.
Second, lack of determination, lack of drive within
agencies to do what is necessary to complete the process in a
reasonable amount of time.
Three, lack of resources. Quite simply, if agency personnel
aren't there, they can't do the job properly.
Four, fear of litigation leads to an overcaution which I
think can lead to delay.
And I should emphasize that the fear is more a matter of
perception than of reality. In the last year, for which CEQ has
public statistics last year, there were 156 NEPA cases filed,
and in only 11 of those did a judge grant injunction. By way of
larger comparison, in that same year, 281,338 civil cases were
filed in U.S. District courts.
In brief, NEPA actions and NEPA litigation, taking the
average number of NEPA documents filed annually and the 2004
NEPA injunction figures, is a 99.97 percent rate of NEPA
actions successfully completed without injunctions.
Now, I don't think that that provides a factual basis to
prompt excessive caution on the part of agency personnel.
Next, lack of cooperation by other agencies can contribute
to delay. And there are difficult substantive areas, wetlands,
clean air, some having nothing to do with NEPA and some NEPA
related. What can be done to reduce delay?
I make two suggestions in the statement which you have in
both its long form and its short form. But I think this is the
single most important area to address. One, by simply adopting
limits which can insert deadlines on the NEPA process. And I
make two suggestions: one for a series of presumptive limits;
and the other for Congress to repeat what it recently adopted
in its Safe, Accountable, Flexible, Efficient Transportation
Equity Act, or SAFETEA, which was addressed in the
transportation area at the same issue.
Next, implementing NEPA earlier in the process. Concurrent
reviews, getting cooperating agencies to cooperate, ensuring
adequate resources. Simply, if somebody doesn't have the
resources, they can't do the job. Making sure that they are a
well-trained agency and decisive agency personnel, those with
the capacity to make decisions.
Early assurance of legal compliance. And I suggested in my
presentation, in the written presentation, that the Justice
Department be involved as a means of getting an outside look
before the document becomes final, which helps bulletproof it
and, therefore, makes judicial review less probable and less
probable of success.
Miss McMorris. Mr. Yost, would you summarize, and then--
just because we are going to run out of time. And then we'll
get to the rest of the panelists and we can come back for
questions.
Mr. Yost. I will not go through the other recommendations
that I have there, but at the same time, it is important while
making those delay-removing recommendations to keep in mind
that the basics of NEPA, not having--not exempting things from
NEPA, not cutting down on the review of alternatives, not
cutting the public out of the process, and not cutting back on
judicial review, which is the only reason why NEPA is--how NEPA
is enforced and why people pay attention to NEPA are important
for this Task Force to consider.
Thank you for the opportunity.
Miss McMorris. Good. Thank you.
[The prepared statement of Mr. Yost follows:]
Statement of Nicholas C. Yost, Partner, Sonnenschein Nath & Rosenthal
LLP, San Francisco, and Former General Counsel, Council on
Environmental Quality
Introduction.
Rep. Cathy McMorris (R-Wash.), the Chairwoman of the House NEPA
Task Force, said, ``If we can make [the NEPA] process more timely and
more efficient, I think that would be a win.'' I agree. In order to
streamline NEPA--to reduce delay while preserving the benefits of the
law--there are steps that can legitimately be taken. As you will see, I
make specific proposals to reduce delay, which include:
time limits on the NEPA process--two potential mechanisms
implementing NEPA early in the approval process
concurrent agency reviews
getting cooperating agencies to cooperate
adequate resources
well-trained and decisive agency personnel
top down direction to expedite
early assurance of legal compliance
availability of agency headquarters personnel to expedite
NEPA process
regular meetings among those responsible for the NEPA
process
getting the right level of NEPA documentation
maximum coordination with State mini-NEPAs, and
expediting judicial review, including;
> statutes of limitations,
> expediting preparation of the administrative record,
> priority for NEPA suits, and
> the joinder of NEPA and comparable state claims.
There are also other measures which it would be a mistake to adopt,
which would gut NEPA rather than streamline it. Specifically:
Congress should not exempt actions from NEPA.
Congress should not eliminate or reduce the obligation to
consider alternatives.
Congress should not squeeze the public out of the NEPA
process.
Congress should not curtail judicial review.
Throughout I respectfully suggest that we keep in mind the original
intent of the drafters. The Senate's lead author, Henry Jackson of
Washington, characterized NEPA as ``the most important and far-reaching
environmental and conservation measure ever enacted.'' The ranking
Republican, Gordon Allott of Colorado, called it ``truly landmark
legislation.'' The lead House author, Congressman John Dingell of
Michigan, stressed that ``we must consider the natural environment as a
whole and assess its quality continuously if we really wish to make
strides in improving and preserving it.'' President Nixon chose January
1, 1970, to sign NEPA into law--as his first official act of the new
decade. In Senator Jackson's words,
The basic principle of the [national environmental] policy is
that we must strive in all that we do, to achieve a standard of
excellence in man's relationship to his physical surroundings.
If there are to be departures from this standard of excellence,
they should be exceptions to the rule and the policy. And as
exceptions they will have to be justified in light of the
public scrutiny required by section 102.
I would respectfully suggest that we would do well to continue to
be guided by the framers' words.
In this presentation I will address the issues confronting the Task
Force as follows:
(1) the question whether there is unwarranted delay in the NEPA
process;
(2) the causes of that delay;
(3) measures that can be taken to reduce delay and otherwise
streamline the NEPA process, and;
(4) discussion of the measures that should not be adopted in the
name of streamlining NEPA, measures which would instead undercut the
act to the detriment of the nation's environmental protection.
Throughout I should emphasize that as General Counsel of the
Council on Environmental Quality I was the lead author of the Federal
Government's CEQ NEPA Regulations, which remain in effect a quarter
century later after five Presidents with only one amendment to one
section. I strongly believe that NEPA and its basic message--look
before you leap environmentally--serves the American people immensely
well. This statute has been an environmental success story. It has been
replicated in about half our states, and having served as the model for
environmental impact assessment legislation in more than 100 countries,
it may be the most imitated American law in history. However, I should
also add that I have spent much of the last twenty years assisting
clients through the NEPA process and have had my own share of
frustrations with unneeded delay in that process. The goal should be to
cut the fat but not the muscle.
1. Is there a problem with delay under NEPA? In many cases there is
for the reasons I set out below. My impression is that such
delay is most often associated with applicant-sponsored
projects (when timeliness may be critical) as distinct from
agency-sponsored ones, where timeliness is often less urgent,
such as with respect to long-term actions involving planning.
By way of anecdotal example, a principal in a highly
regarded consulting firm told me of a draft EIS he had prepared for an
agency within the Interior Department that had been sitting on an
agency official's desk for 3 months awaiting review and that the
official had said it would be another 3 months before she could get to
it. I happen to know the agency official, and she is a highly
competent, responsible professional, but her workload is overwhelming.
It is, however, the applicant to the government whose project is the
subject of the EIS who suffers.
By way of a more pervasive illustration of delay, a
couple of years ago the Federal Highway Administration set a goal of
reducing its median Environmental Impact Statement (EIS) preparation
time from 4 1/2 years to 3 years, and its Environmental Assessment (EA)
preparation time from 1 1/2 years to 1 year. While admirably
intentioned and while the FHWA has been a leader in addressing issues
of delay under NEPA, even the goals appear to me to assume excessive
time. The President's Council on Environmental Quality (CEQ), the
agency charged with overseeing NEPA's implementation throughout the
government, has issued guidance saying that agencies' EISs should not
take over one year to prepare and process and EAs not more than three
months. These are far shorter times than the goals the FHWA has set for
itself.
2. What is responsible for delays in the NEPA process? I would suggest
several answers:
Lack of deadlines. The absence of time deadlines,
milestones, and schedules in many NEPA processes enables delay. As I
will discuss, I think this the single most important deficiency to be
addressed.
Lack of determination. The simple lack of drive within
agencies to do what is necessary to complete the process in a
reasonable amount of time. I will return to this subject later, but the
lack of command direction to move the process rapidly is critical.
Lack of resources. Quite simply, if the agency personnel
aren't there, they can't do the job in a timely fashion. A 2002 study
(Smythe and Isber, NEPA in the Agencies-2002) stated that the Army
Corps of Engineers cut its Headquarters environmental staff from 12 to
3; the Department of Energy cut its comparable staff from 26 to 14; and
the Environmental Protection Agency reduced its headquarters NEPA staff
by 20% over a 10 year period. Fewer staff members to do the work--any
work--will mean that it takes longer to do it. The ones who suffer from
the Federal staff shortages are the private businesses or the State or
local governments or Indian Tribes which are trying to move projects
through the Federal process.
Fear of litigation can lead to an overcaution which can
lead to delay. I should emphasis that this fear is more a matter of
perception than of reality. In fact only a small proportion of NEPA
actions result in judicial challenges, and experienced agency NEPA
counsel can make informed judgments as to which actions are potentially
vulnerable and which are not, thereby eliminating needless delay
associated with excessive time on non-problematic matters. Each year
approximately 450 EISs and 45,000 EAs are prepared on Federal actions.
(The EIS numbers cover both Draft and Final EISs, so the number of
actions represented is approximately half the total number.) In the
last year for which CEQ has made public statistics on NEPA litigation
dispositions (which it assembles in collaboration with the Justice
Department)--2004--156 NEPA cases were filed, and in only 11 of those
cases did the judge grant an injunction. In 2002 150 NEPA cases were
filed, and injunctions were issued in 27 of them. In 2003 128 NEPA
cases were filed, of which 6 resulted in injunctions. By way of larger
comparison, in that same year, 2004, 281,338 civil cases were filed in
the U.S. District Courts. During the same year 998 cases were filed in
District Courts involving environmental matters. Of these, 548 involved
private parties only (i.e., not the U.S. Government), and of the
balance, which involved suits to which the United States was a party,
the government was the plaintiff in 171 cases and defendant in 279.
Environmental cases therefore represent a minuscule portion of
the Federal court caseload, and NEPA cases a modest part of even that
small fraction. In summary, with respect to NEPA actions and NEPA
litigation, taking the average number of NEPA documents filed annually
and the 2004 NEPA injunction figures, a 99.97% rate of NEPA actions
successfully completed without injunctions does not provide a factual
basis to prompt an excessive caution on the part of agency personnel.
Even looking at the relatively modest number of NEPA cases filed, in
2004 in 93% of them the judge did not issue an injunction. Federal
judges on the whole use good judgment and do not act in unwarranted
manner.
Lack of cooperation by other agencies can contribute to
delay. In NEPA's early days the agencies charged with safeguarding
natural resources and environmental protection (typically the
Environmental Protection Agency, the Fish and Wildlife Service, and
what was then the National Marine Fisheries Service (now NOAA
Fisheries)) were sometimes perceived as withholding their contribution
while an EIS was being prepared and then, when the time came for public
comments, castigating the lead agency for an inadequate job and
requesting that the document be redone. In an effort to turn this
adversarial--and time consuming--interaction into a more constructive
approach, CEQ in its 1978 NEPA Regulations devised the concept of
``cooperating agency,'' requiring agencies not to withhold their input
until the comment stage, but to get involved early on when the EIS was
being prepared, contributing their expertise to it and even taking the
lead on the portions on which they had a special knowledge. Everybody
benefited--the lead agencies and project proponents saw a constructive
collaboration instead of an adversarial comment process. Project
proponents also saw objections to their proposals being surfaced early
in the process, so they could be evaluated and the project adapted to
reflect meritorious objections, ultimately saving time. Those concerned
with the environment saw their concerns being interjected into the NEPA
process early on, with an EIS reflecting a fuller range of
environmental inputs and values, rather than being treated as an add-on
at the end.
However, it is fair to say that this emphasis on cooperation
needs constant oversight and consistent reinforcement. The natural
tendency of agencies to hold off their involvement and husband their
resources must be resisted. Top down direction from the highest levels
of the Executive Branch to participate in working through the NEPA
process--not avoiding environmental allegiances and responsibilities,
but embracing them by insistence on the early involvement of the
resource agencies--is vital. To emphasize--the purpose is not to
silence those agencies--quite the opposite, it is to ensure their
meaningful contribution by insisting on their early involvement.
Difficult substantive areas. Some environmental problems
are complex and--often quite apart from NEPA--take time to figure out
how wisely to deal with them. Examples include:
> Air quality conformity. Under the Clean Air Act Congress has
provided that EPA adopt national air quality standards which stand as
healthy air goals for all Americans. States are then charged with
devising State Implementation Plans (SIPs) setting out the steps to be
taken in that state to attain those goals. In an appropriate effort to
ensure that Federal agencies do not by their own actions within a given
state subvert that state's planning, Congress has also provided that
Federal agencies' actions must ``conform'' to the state's SIP. Such
conformity often leads to hard choices, such as how to offset an
increase in air emissions--which may be time-consuming.
> Wetlands. Congress has provided that permits must be obtained
to dredge or fill ``waters of the United States.'' More particularly,
wetlands are safeguarded in part by requiring that there can be no fill
when there is an upland (i.e., non-wetland) alternative available. This
is an ``alternatives'' requirement independent of NEPA, and it is one
which imposes a substantive requirement--you must avoid the wetland if
there is another, upland alternative available. Additionally, both
Presidents Bush and President Clinton have followed a policy of ``no
net loss'' of wetlands--if you fill a wetland, you must create or
foster a wetland elsewhere. This leads to a hunt for suitable sites,
sometimes using a so-called ``mitigation bank,'' which can also take
time.
> Section 4(f). Similarly in section 4(f) of the Transportation
Act, which applies to transportation facilities--most commonly highways
and airports--Congress has provided that the agency must pursue
alternatives which avoid parks and historic structures. Again--Congress
had created an alternatives requirement independent of NEPA, and one
with real bite.
> Indirect impacts. Sometimes the most consequential
environmental impacts are not the most immediate ones. For instance,
when a new highway is built in an undeveloped area, there will be
immediate impacts as part of the construction, typically involving
noise and dust. Then there will be the impacts of operating the highway
once it is built--again noise and the air emissions of the vehicles
using the road. And, in an undeveloped area, there will be still
further impacts as the highway opens a new area to development. These
so-called ``growth-inducing'' impacts may be a good thing--that may be
precisely why the highway was built--or they may not be--the
inadvertent consequences of a highway built for other purposes. But
NEPA at minimum requires that these impacts be examined such that the
public can be aware of and responsible authorities can plan for what is
to come. The analytical work of Federal agencies is made available to
the affected local government.
> Cumulative impacts encompass another set of effects that NEPA
examines. For instance, if the Department of Veterans Affairs were
building a hospital for the nation's veterans on a road that could just
accommodate the traffic of the patients coming to the hospital, and
simultaneously the local government was approving a Home Depot across
the street, which would also generate considerable traffic, NEPA's
cumulative effects analysis will alert everybody concerned that there
is a problem. NEPA does not solve the problem, but it provides the
occasion and the traffic data which will lead the Federal agency and
the local government and perhaps the state highway agency to sit down
together and figure out what is necessary to deal with the problem of
the cumulative impacts of the combined effects of the new hospital and
the new megastore. Future traffic jams are averted.
Cumulative impacts consist of past, present, and reasonably
foreseeable future impacts of the same type. (40 CFR 1508.7). For
instance, the FHWA in preparing an EIS on a highway into a newly
developing valley (with its attendant air and noise impacts) in
analyzing the capacity of the highway will need to analyze the past
impacts (e.g., the number of people and destinations already in the
valley), the present proposals (e.g., any new projects which are the
immediate occasion for building the highway), and the ``reasonably
foreseeable'' future projects (e.g., other developments which are known
to be planned for the valley). Only through an accurate analysis of
cumulative impacts will the agency be able to get a complete picture of
what is in store for the valley in terms of traffic, air, and noise and
so that the highway can be appropriately sized.
> Often an agency simply does not follow the law, creating
problems for itself. I know you have heard testimony--often
conflicting--about a NEPA case in the 1970s against the Corps of
Engineers in New Orleans involving flood control issues. I have no
personal familiarity with that case, but in the 1980s I was privileged
to represent the State of Louisiana in NEPA litigation against the
Corps of Engineers over the dredging of oyster shell reefs--which act
as a natural barrier to coastal erosion--off the Louisiana coast. The
Corps, having found that the impacts of the dredging were
``significant,'' still refused to prepare an Environmental Impact
Statement analyzing the impact. In order to safeguard its coast, the
State of Louisiana had to go to court to prevent the Corps from
flaunting the Congressional command. The State was successful in the
U.S. Court of Appeals for the 5th Circuit in New Orleans in enforcing
NEPA. State of Louisiana v. Lee, 758 F.2d 1081 (5th Cir. 1985). In
brief, agency recalcitrance in following the law can be and is itself
often a cause of delay.
> I set out these examples--some of which arise under NEPA and
some under other Congressional enactments--as only that--examples
chosen from among many to illustrate that there may be complex
environmental issues to resolve and what takes time is not necessarily
NEPA but the reality of people working together to solve complex
problems. ( See the excellent testimony presented before the Task Force
by Thomas C. Jensen, Chairman, National Environmental Conflict
Resolution Advisory Committee, on the importance of collaborative
decision-making.)
3. What can be done to reduce delay?
Time limits. Agencies must be encouraged--perhaps
directed--to set time limits on the NEPA process (and on individual
aspects of the process). If delay is the issue--and it often is--then
time limits are the one answer that directly addresses and reduces the
problem.
> With precisely that in mind, when CEQ adopted its NEPA
Regulations it provided that an agency must, when requested by an
applicant, adopt time limits. 40 CFR Sec. 1501.8. (``The agency shall
set time limits if an applicant for the proposed action requests
them....'') (The full text of Sec. 1508.8 is set out as Attachment A to
the presentation.) At the same time CEQ did not impose a single
universal time limit because the various actions to be evaluated differ
so much in their magnitudes. For instance, it simply takes more effort
and time to evaluate a trans-Alaska pipeline than it does to examine a
single Interstate highway interchange.
> That said, the provision has been grossly underutilized,
largely, I believe, because applicants are reluctant to antagonize
agencies by exercising their right to demand that time limits be set.
> As one trade association from the aviation industry put it in
urging reform in agency implementation of NEPA, the agency procedures
could ``instill greater urgency in the process if it integrated words
such as ``schedule,'' and ``milestones'' and ``deadlines'' into the
process....'' (Comments submitted by Airports Council International --
North America to FAA (2004).)
> By way of constructive example, the FHWA, as part of its
``Vital Few Environmental Goal,'' has adopted a policy of ``negotiated
timeframes'' to expedite the NEPA process. The new Safe, Accountable,
Flexible, Efficient Transportation Equity Act will accelerate that
process.
> I believe that new innovations are needed to emphasize time
limits. Let me make two suggestions for dealing with the very real
problem of delay (which are not mutually exclusive):
(a) The most direct solution would be to require the adoption of
presumptive time limits, through CEQ or legislatively, such that EISs
are required to be completed in a discrete period of time absent
special circumstances warranting lesser or greater time periods. For
instance, either CEQ could impose by Regulation or Congress could
impose by law a set of 3 or 4 presumptive time limits for the NEPA
process (for EISs; same could be done for EAs). (Or, either CEQ or
Congress could require each agency to prescribe such categories).
Category A might involve 10 months for an EIS process (running from the
Notice of Intent (NOI) through the Record of Decision (ROD)); Category
B 15 months, and so on. At the outset of the process, perhaps as part
of scoping, the lead agency would (in consultation with the applicant
(if any) and with agencies with jurisdiction by law or special
expertise, and in the case of actions with the potential for
controversy, the public), assign the action to one of the time limit
categories. Some sort of flexibility for unforeseen circumstances or
unusual situations would be needed, but as a general rule those
affected by the NEPA process will have a predictable schedule for the
completion of the process. The fact of having a time limit will drive
the process. This is the single most important measure needed to reduce
delay.
(b) Alternatively or additionally Congress could repeat the
approach it has recently adopted in the newly enacted ``Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy
for Users'' (SAFETEA). This year Congress enacted and the President
signed legislation which contains detailed and well-considered
provisions for expediting the NEPA process for transportation projects.
23 U.S.C. Sec. 6002. There is no reason why those provision--already
considered and adopted by Congress--could not be adapted to non-
transportation projects. (It should be noted that there are some
provisions in the SAFETEA which do not lend themselves to replication
for all other activities subject to NEPA. For instance, the Act allows
the lead agency to develop the preferred alternative to a higher level
of detail than other projects (23 U.S.C. Sec. 6002(8)(4)(D)), which is
generally not a good idea because it tilts the decisionmaking
prematurely in favor of the particular, preferred alternative.) In
general those provisions, under the statutory title, ``Efficient
Environmental Reviews for Project Decisionmaking'' (Id.) direct the
Secretary (of Transportation, but that can be adapted to other
agencies) to take charge of an interagency NEPA process and establish a
schedule for the completion of the environmental review process for the
project under consideration. 23 U.S.C. Sec. 6002(g)(1)(B). To ensure
that other laws and the agencies charged with their implementation do
not take time beyond the NEPA schedule, the law provides that the
Secretary is to deliver a progress report to the relevant Congressional
Committee (in the SAFETEA the Senate Committee on Environment and
Public Works and the House Committee on Transportation and
Infrastructure) on the occasion of the later of 180 days after the
application was submitted or the date on which the Secretary made all
final decisions on the project. Additional reports are due every 60
days.
Implementing NEPA earlier in the approval process.
Insofar as NEPA's consideration of environmental matters is integrated
early in an approval process--as distinct from being an add-on at the
end--NEPA takes less time, and the values it represents are better
integrated into the action being taken.
> CEQ has long emphasized this goal (40 CFR
Sec. Sec. 1500.5(a), 1501.2), but the mandate needs constant
reinforcement.
Concurrent reviews. Often many Federal agencies have a
say in a project's approval process. It is essential that these
agencies undertake their environmental responsibilities concurrently
rather than sequentially. That cuts down on delay.
> CEQ has also tried to make this happen (40 CFR
Sec. Sec. 1502.25, 1500.5), but consistent insistence is needed.
Getting cooperating agencies to cooperate. Insofar as
agencies other than the lead agency have either special expertise or
jurisdiction by law, they too have a role to play in the NEPA process
(NEPA, Sec. 102(2)(C); 40 CFR Sec. Sec. 1501.6 and 1508.5). Any
tardiness in their taking action has the potential to delay the whole
process.
> CEQ has recently and quite laudably spent considerable effort
in making the cooperating agency concept work well.
> In many cases, resource shortages (discussed below) play a
role in cooperating agency contributions to delay (which can be
alleviated if the lead agency augments the resources available to the
cooperating agency). SAFETEA specifically provides for transportation
funds to be made available to State agencies and Indian Tribes which
are participating in the environmental review process for activities
which contribute to expediting and improving transportation planning
and project delivery.
> That said, facilitating and expediting the cooperating agency
role has promise for accelerating the whole process.
Adequate resources. As I noted above, no job can be
performed if there are not adequate personnel assigned to do it.
> The expedition with which an agency undertakes its NEPA
responsibilities is often directly proportional to the availability of
experienced staff to undertake and complete the job promptly.
> By way of illustration of action to reduce delay, the Federal
Aviation Administration (FAA), an agency with an exceptionally high
success rate in defending its NEPA documents in court, acting in
response to the Department of Transportation FY 2003 Appropriations Act
and to the requests of affected airports brought on 44 more personnel--
31 environmental specialists and 13 lawyers--with the avowed purpose of
cutting delay. That was a constructive step.
> I am fully aware that resources are in short supply these
days--that the many demands on the Nation's exchequer, both foreign and
domestic, from Iraq to Katrina, diminish the prospect of additional
resources. But that recognition does not make the problem go away. If
there is nobody there to do the job, the job doesn't get done, whether
the job is NEPA implementation or any other function. In some measure,
particularly with projects for which there is a project sponsor, this
lack of resources can be addressed by having the project sponsor pay
the cost of environmental review. For the sponsor that additional cost
may well be dwarfed by the cost of delay. It is to everybody's
advantage to allow sponsors to advance the cost of evaluating these
applications, understanding, of course, that expedited analysis does
not guarantee approval but rather only rapid evaluation. Congressional
authorization would make clear that agencies can accept funds for this
purpose.
> By way of example, some agencies choose to rely in part on
outside private contractors to prepare NEPA documents under the
supervision of core agency staff. (40 CFR Sec. 1506.5). Under so-called
``third party contracts'' the agency may select and supervise the
consultant, but the applicant--whose interests are furthered by prompt
action--foots the bill. This works to mobilize the resources necessary
to do the job promptly, especially when the agency lacks sufficient
experienced personnel. It internalizes within the project cost the
external cost of environmental evaluation.
Well-trained and decisive agency personnel. The FAA, an
agency with a particularly high record of success in court with its
NEPA documents, says quite simply: ``A highly skilled FAA EIS project
manager is the greatest asset for a successful EIS.'' FAA, Best
Practices Guide (in my experience the single best guidance put out by
any Federal agency on expediting the NEPA process.) I would suggest
several attributes that are needed for agency personnel to deal
effectively with and appropriately expedite the NEPA process:
> They must be trained such that they produce or review NEPA
documents that fully implement the law's intent, that protect the
public, and that will withstand legal challenge.
> They must--and this is difficult to legislate or to mandate,
but is exceedingly important--have the capacity to make decisions, to
say ``yes'' as well as ``no'' (or ``I need more information''). There
must be agency incentives built in for agency officials to move quickly
and decisively.
> There must, as I said earlier, not only be qualified,
decisive personnel, but there must be enough of them. (Generally see
CEQ, The NEPA Task Force Report to the Council on Environmental
Quality, Modernizing NEPA Implementation (Sept. 2003) for detailed
recommendations prepared by experienced practitioners within the
Federal government concerning how better to make the internal process
work more smoothly.)
Top-down direction to expedite. There must be command
direction from above--within both the lead and cooperating agencies--to
move the NEPA process expeditiously. Wholehearted implementation of
NEPA's mandates is essential, but timelines are also a vital ingredient
of a successful process. (The newly-enacted SAFETEA, President Bush's
Executive Order 13274 (Sept. 18, 2002), and guidance promulgated by
DOT, the FAA, and the FHWA provides worthwhile examples of such top-
down direction to expedite.)
Early assurance of legal compliance. Delay can come from
either an overreaction due to fear of litigation, which stymies
decisive action, or from sloppy environmental analysis which results in
having to go back and do the job over. Doing it right--and legally--
saves time. A stitch in time does save nine. As the NEPA process
progresses, an agency should be having its legal staff, which must be
experienced with NEPA litigation and associated other environmental
requirements, consistently giving prompt advice on what is needed for
an adequate NEPA document--neither too much nor too little. Again to
quote an aviation industry reform proposal, what is needed by the
agency are ``procedures for very fast decisions by experienced
litigators on legal risk associated with time-consuming elements of
NEPA analysis,....'' (Airports Council International comments.) Quite
simply, it is possible accurately to forecast the litigation
vulnerabilities of a NEPA document and remedy the deficiencies to
reduce those vulnerabilities (and at the same time to see that useless
time and effort is not devoted to detailed study of issues not critical
to the decision). I have participated in the preparation of many NEPA
documents representing applicants (including among others energy
companies, highway builders, land developers, airports, and Indian
Tribes), and no document on which I have worked has ever been
overturned by a court. It can be done. There is no trick. The message
is to follow the law and the regulations faithfully. That will serve
the law in the manner that Congress intended. Experienced NEPA
litigators sometimes get the feeling that much of the carping about
NEPA comes from those who have done inadequate jobs in preparing NEPA
documents and would like to blame somebody else--or the statute
itself--when their work is found unacceptable.
> To the extent that agencies do not have qualified NEPA
lawyers with litigation expertise available in house, the agencies
could be required to consult with the U.S. Justice Department prior to
finalization of NEPA documents in potentially controversial cases. It
is, after all, the lawyers of Justice's Environment and Natural
Resources Division who will ultimately be defending these NEPA
documents in court. If they are afforded the opportunity to review the
documents before their finalization (rather than after a potentially
inadequate document has been finalized and becomes the subject of a
lawsuit), much aggravation and delay can be headed off. Of course, time
limits would be needed for DOJ review (as for every other part of the
NEPA process).
By way of analogy, in the Carter Administration all Justice
Department NEPA pleadings were reviewed by CEQ's legal staff to ensure
consistency throughout the government and to ensure the views of the
client agency responsible for interpreting NEPA were brought to bear as
Justice crafted its pleadings (rather than simply reflecting the views
of the agency being sued). CEQ was given a 48 hour turnaround to
transmit its views to Justice. This salutary practice has not been
followed, unwisely, I believe, by subsequent administrations.
Headquarters personnel available to step in to expedite.
Different agencies have different organizational means of doing their
business, which is totally appropriate. But to the extent that an
agency relies on a regional or district office to do its NEPA work,
having somebody--informed, empowered, and decisive--at the headquarters
level to whom recourse can be had to break logjams and get a project
moving is extraordinarily helpful.
Regular meetings. With complex projects no mechanism
works more effectively to move the project along and to involve all the
agencies which will ultimately be involved in the permitting than
regular meetings--usually led by the lead agency--to set and achieve
milestones and to evaluate progress.
> I have personally been involved in such sets of meetings in
projects ranging from a successfully completed expansion of the
Philadelphia International Airport to a land development on the Potomac
River in Maryland. This system can and does work.
> The dynamics of every agency having to show progress every
month--to show what it has done, to state what further information it
needs--function to make projects move at a rapid clip.
> That said, such meetings are resource-consumptive and are
best used for complex projects with the potential for controversy.
Needless to say, assigning a high priority to such projects--which may
be most appropriate given their importance--does result in less
priority for the other projects.
Get the right level of NEPA documentation. As you know,
there are three possible levels of NEPA documentation--(1) a
Categorical Exclusion (which, for a qualifying project--one of a type
found by the agency (with the approval of CEQ) not to have significant
environmental impacts either individually or cumulatively--simply says
no more NEPA documentation is needed); (2) an Environmental Assessment
(EA) (which is supposed to be a brief study to see if a more extensive
EIS is needed and which also functions, in the vast majority of cases,
as the mini-analysis which is the only NEPA document and which builds
environmental factors into decision making; and (3) an Environmental
Impact Statement (EIS) (which is the most thorough analysis required
under NEPA--reserved by Congress for those proposals which may
significantly impact the human environment). Getting the appropriate
level of NEPA documentation right is important--both to avoid a more
complex, lengthier process than the action warrants, and, conversely,
to be sure there is adequate analysis such that it will not be
necessary to come back and start over.
> Current agency practices are widely disparate. For instance,
in one year the Federal Highway Administration categorically excluded
90% of its projects, prepared Environmental Assessments /Findings of No
Significant Impact (EA/FONSI) on 7%, and EISs on 3%, while the Corps of
Engineers prepares 75 to 100 EISs each year and 4,400 EAs, and the
Department of Energy prepared 11 Final EISs and 49 EAs over a 2 year
period.
> Opportunities exist for improvement. For instance, the Food
and Drug Administration used to require an Environmental Assessment for
each new drug before it came on the market. This involved several
hundred thousands of expenditure and several months delay in making the
drug available to the public. The primary purpose of an EA, of course,
is to determine whether an EIS is needed. Over many years in only one
case did the FDA decide such an EIS was warranted (and adopted one
prepared by another agency). That record established a firm basis on
which the FDA was able to broaden its categorical exclusions to most
new drugs. In brief, actual experience over a period of years showed a
lack of significant environmental impact and therefore supported
broader categorical exclusions.
Insure maximum coordination with State NEPA analogues.
About half of the states have some sort of statute or order based on
NEPA, and a smaller number of these states have analogous laws whose
reach is more pervasive than NEPA, including Chairwoman McMorris' home
State of Washington and Chairman Pombo's and my home State of
California. Many actions will be subject to both laws. Duplication can
be avoided if the Federal and State (or local) agencies collaborate to
prepare one document to comply with both laws. The CEQ NEPA Regulations
require exactly that on behalf of Federal agencies. 40 CFR Sec. 1506.2.
And, indeed, I drafted a comparable state provision for the Council of
State Governments which became part of the Council's suggested model
legislation and which was adopted by a number of states. Still--
agencies often avoid such cooperation. A firmer push to make them
collaborate would be helpful.
> I should note that some of the State enactments are
considerably more demanding than NEPA. For instance, the California
Environmental Quality Act (CEQA) requires not only identifying
potential mitigation, but substantively adopting it to remove all
significant impacts as a condition of project approval. California's
``little NEPA'' includes the provision that:
The Legislature finds and declares that it is the policy of the
state that public agencies should not approve projects as
proposed if there are feasible alternatives or feasible
mitigation measures available which would substantially lessen
the significant environmental effects of such projects, ....
Cal. Public Resources Code Sec. 21002. Also see the provisions
from Massachusetts (Mass. Gen. Laws ch. 30, Sec. 61, requiring ``a
finding that all feasible measures have been taken to avoid or minimize
said impact.'') and New York (N.Y. Envtl. Conserv. Law Sec. 8-0109(8),
requiring a finding that ``adverse environmental effects identified in
the environmental impact statement will be minimized or avoided'').
These State requirements go well beyond NEPA in their requirements for
the protection of the environment, but with flexibility Federal
managers and their State and local counterparts can work successfully
to meld the processes under both Federal and State laws. From the point
of view of an applicant who must comply with both acts anyway, one
process and one document is more efficient than two.
Expediting judicial review. As I discuss later, judicial
review is essential to NEPA's effectiveness and should not be
curtailed. That said, there are good reasons for expediting that
judicial review. Potential measures include:
> Statute of Limitations. NEPA has no statute of limitations--
no period within which judicial challenges must be filed. Many courts
look to the general statute of limitations for civil suits against the
United States, which is six years. The vast majority of NEPA actions
are completed well before that time. Some agencies, however, have in
their own authorizing legislation statutes of limitations for any
challenge against the agency's action which then function as NEPA
statutes of limitation. For instance, all actions challenging an Order
by the FAA must be brought within 60 days. An action to challenge the
decision of the Secretary of the Interior to take land into trust for
an Indian Tribe must be brought within 30 days, which similarly equates
to a NEPA statute of limitations. The newly enacted Safe, Accountable,
Flexible, Efficient Transportation Equity Act provides a 180 day
statute of limitations for transportation projects. My own State,
California, has a 30-day statute of limitations for its NEPA analogue,
the California Environmental Quality Act (CEQA). My own impression is
that this relatively short statute does not imperil the opportunity for
judicial review in that litigation under CEQA is both more frequent and
more successful than that litigation under NEPA. I should note,
however, that those experienced in working with citizens' groups in
litigation make the valid point that it often can take such groups more
than 30 days to get their acts together to bring a lawsuit. Finally--a
note of practicality. Judicial review under NEPA is ``administrative
record review,'' which is to say the judge usually does not take
testimony or receive evidence but rather reviews the administrative
record that was before the agency to see that it took a ``hard look''
at the environmental consequences of its proposal. That means there can
be no judicial review until the administrative record (discussed
below)--often many thousands of pages--is compiled by the agency. That
usually is not completed within 30 days, so a statute that short is
probably not practically effective in reducing delay. A statute in the
90 to 180 day range would be more realistic.
> Administrative Record. I should add that expediting that
compilation of the administrative record--which is within the authority
of the preparing agency, working with the Justice Department--is an
essential part of expediting judicial review. Specifically enabling the
agencies to call upon applicants for assistance in expediting
compilation of the administrative record would be a useful step
(perhaps coupled with a provision ensuring that applicants can
participate in the litigation affecting the future of their projects).
> Priority to NEPA suits. Both District Courts and Courts of
Appeal have dockets to manage and must assign priorities. Congressional
direction to give priority to NEPA cases will expedite the disposition
of those cases. California has such a legislative requirement for
priority to CEQA cases. (It is worth noting, however, that the
judiciary can be expected to oppose such a measure, preferring to
control its own dockets.)
> Joinder of NEPA and comparable State claims. In those states
which have their own environmental impact assessment laws, the
possibility exists for two judicial reviews--in Federal court and in
State court--of what may be one document prepared to comply with both
laws. There is no reason for a plaintiff to have two judicial bites at
the apple. One makes sense. Two does not. While a State court lacks
jurisdiction to apply a Federal law, such as NEPA, against a Federal
agency, a Federal court can, using the concept of pendant jurisdiction,
hear both the NEPA claim and the related State claim. While I am
convinced this can happen under existing law, a Congressional
clarification--even encouragement--would be useful.
4. Measures that should not be adopted to reduce delay.
I have discussed at length measures that can and perhaps should be
adopted to reduce delay in the NEPA process. There are also other
measures--some embodied in legislative proposals--which should not be
adopted to deal with issues of delay. These proposals cut not fat but
muscle. They imperil NEPA and all the good that it does.
Congress should not exempt actions from NEPA. A proposed
action either does or does not significantly impact the environment. If
it does not, under existing law no lengthy studies are needed. If the
action does significantly impact the environment, that is what NEPA is
there for. There is no reason to exempt actions from the scrutiny
Congress has so wisely otherwise ordered.
Congress should not eliminate or reduce the requirement
to examine alternatives. The alternatives analysis is what NEPA is
about--looking for better ways of doing things, usually both enabling a
project proponent to pursue its goal, but at the same time forcing a
search for reasonable alternative means of accomplishing it.
``Reasonable alternatives'' is existing law--no more and no less. To
look at no alternatives or to look at fewer than ``reasonable
alternatives'' or to focus on one alternative and skimp on others is to
negate what NEPA is all about--the search for better, less
environmentally intrusive ways of doing things. For instance, you can
build a highway, but look for the alternate route that avoids an
endangered species habitat. You can meet an energy need, but find the
least polluting alternative means of doing so. Alternatives are the
heart of NEPA and should not be curtailed.
Congress should not squeeze the public out of the NEPA
process. The public plays a major role in the NEPA process--commenting
and suggesting and otherwise exercising its opportunity to make the
Federal government more responsive to citizen concerns. NEPA, after
all, provides the most conspicuous example of when the Federal
government must explain the consequences of its actions to its citizens
before undertaking those actions. And--those citizens, often closer to
the on-the-ground impacts that are to be evaluated than a
geographically remote official or consultant, can have real-world
observations to make which can beneficially influence the decision.
Measures which are designed to exclude the public or to create time
schedules which do not allow for meaningful public involvement further
estrange the American public from those in Washington who are its
servants. The public's role should not be curtailed.
Congress should not curtail judicial review. Currently
the courts--as commanded by the U.S. Supreme Court--review Federal
agency actions under NEPA under the highly deferential ``arbitrary or
capricious standard,'' which gives the agency the benefit of the doubt.
This opportunity for judicial review should not be curtailed. Congress,
after all, provided no alternate enforcement mechanism for NEPA. Only
judicial review under the Administrative Procedure Act (the same
statute under which most Federal agency action is reviewable) insures
the enforcement of NEPA. If judicial review were not there--and in the
absence of creating some gargantuan independent Federal bureaucracy to
oversee the adequacy of other agencies' NEPA documents--NEPA would be
unenforced and would wither away. To remove or curtail judicial review
would be to remove or curtail NEPA itself.
Conclusion and Summary
In conclusion, I suspect some of NEPA's critics treat the statute
as the proverbial bearer of bad news with the ``shoot the messenger''
syndrome. Some are unhappy when a NEPA document shows significant
adverse environmental impacts and their reaction is ``shoot the
messenger--kill NEPA.'' But making public the bad news--the adverse
environmental impacts--is NEPA's job. That is what it is supposed to
do. The solution is not to shoot the messenger or to kill NEPA. The
appropriate solution is to address the environmental problem.
In summary, NEPA is a statute which works well and which serves the
American people immensely well. Sometimes, and often in cases involving
applicants to the Federal government, its processes take too long.
There are measures that could and should be taken to correct that.
There are also measures which should not be adopted--measures which
would gut NEPA. It is time to adopt the former but not the latter.
Thank you for the opportunity to appear before the Task Force. I
hope and trust my suggestions for improving but not undermining the
NEPA process have been helpful, and I stand ready to be of assistance
to the Task Force in any other way that might be useful.
ATTACHMENT A
(excerpted from the existing ceq nepa regulations)
40 CFR Sec. 1501.8 Time limits.
Although the Council has decided that prescribed universal time
limits for the entire NEPA process are too inflexible, Federal agencies
are encouraged to set time limits appropriate to individual actions
(consistent with the time intervals required by Sec. 1506.10). When
multiple agencies are involved the reference to agency below means lead
agency.
(a) The agency shall set time limits if an applicant for the
proposed action requests them: Provided, That the limits are consistent
with the purposes of NEPA and other essential considerations of
national policy.
(b) The agency may:
(1) Consider the following factors in determining time
limits:
(i) Potential for environmental harm.
(ii) Size of the proposed action.
(iii) State of the art of analytic techniques.
(iv) Degree of public need for the proposed action,
including the consequences of delay.
(v) Number of persons and agencies affected.
(vi) Degree to which relevant information is known and
if not known the time required for obtaining it.
(vii) Degree to which the action is controversial.
(viii) Other time limits imposed on the agency by law,
regulations, or executive order.
(2) Set overall time limits or limits for each constituent
part of the NEPA process, which may include:
(i) Decision on whether to prepare an environmental
impact statement (if not already decided).
(ii) Determination of the scope of the environmental
impact statement.
(iii) Preparation of the draft environmental impact
statement.
(iv) Review of any comments on the draft environmental
impact statement from the public and agencies.
(v) Preparation of the final environmental impact
statement.
(vi) Review of any comments on the final environmental
impact statement.
(vii) Decision on the action based in part on the
environmental impact statement.
(3) Designate a person (such as the project manager or a
person in the agency's office with NEPA responsibilities) to
expedite the NEPA process.
(c) State or local agencies or members of the public may request a
Federal Agency to set time limits.
______
[Response to questions submitted for the record by Mr. Yost
follows:]
Nicholas C. Yost
Sonnenschein Nath & Rosenthal LLP
415.882.2440
[email protected]
December 2, 2005
VIA FEDERAL EXPRESS and e-mail
Honorable Cathy McMorris
Chairwoman, Task Force on Updating NEPA
Committee on Resources
House of Representatives
Washington, DC 20515
Re: Response to Your Letter of November 22, 2005Dear Chairwoman
McMorris:
I write in response to your letter of November 22 in which you pose
two questions to which you invited my responses.
The questions and responses follow:
Q.1. Can you give us a sense of what would be ``adequate resources''?
How much funding, how many people, what kind of skills should
these people have?
I will respond in two ways--by reference to agencies generally and
with respect to the Council on Environmental Quality specifically.
a. Agencies generally.
The personnel should be trained in the range of environmental
disciplines, in Congress' own words in NEPA itself, ``a systematic
interdisciplinary approach which will insure the integrated use of the
natural and social sciences, and the environmental design arts....''
Sec. 102(2)(A), 42 USC Sec. 4332(2)(A). That says it well.
In brief, the scientific, technical, and sometimes
aesthetic bases for decisions must be there.
Capable managers are needed. As I noted in my testimony,
a well-trained and decisive project leader is critical to making the
NEPA process move, both comprehensively and promptly. A I urged in my
testimony, the capacity for decision--to be unafraid to make decisions
and to impose deadlines--is critical. Good managers should be rewarded.
There must be somebody involved who can write (or edit)
clearly such that lay decisionmakers and members of the public can
understand what is being said. In the words of the CEQ NEPA
Regulations, ``Agencies should employ writers of clear prose or editors
to write, review, or edit statements, which will be based upon the
analysis and supporting data from the natural and social sciences of
the environmental design arts.'' 40 CFR Sec. 1502.8.
As I also noted in my testimony, insofar as potential
litigation is a concern (and it often is, especially on controversial
actions), good legal advice on what is necessary to ``bulletproof'' (or
come as close as one can) a NEPA document is the best guarantee of
either deterring litigation (because potential plaintiffs will realize
they have little prospect of success) or prevailing should a lawsuit be
filed. Such legal reviewers (who ideally should have litigation
experience), can be (a) staff lawyers at the agency, (b) outside
counsel retained by the agency (or in the case of applicants, outside
counsel retained by the applicant to cooperate with the agency in
helping bulletproof a document), or (c) as I suggested in my testimony,
involving the Justice Department lawyers who would be defending the
decision in court in an earlier, predecisional capacity to review and
assist in bulletproofing the NEPA documents. 1
---------------------------------------------------------------------------
\1\ This will have implications for staffing within the Environment
and Natural Resources Division of the Justice Department.
---------------------------------------------------------------------------
With respect to numbers of personnel and funding, the
answers are really highly specific to the agency. You will recall from
my testimony that the Federal Aviation Administration, with the support
of the regulated aviation industry, brought on 44 more personnel--31
environmental specialists and 13 lawyers--with the avowed purpose of
cutting delay. (The FAA has what is perhaps the highest success rate
within the Federal government of successfully defending its very
thorough and professional NEPA documents).
In addition to the staffing and budgeting needs of the
lead agency which is in charge of preparing a NEPA document, there are
requirements on other Federal agencies (typically the so-called
``resource agencies'' in the Interior and Commerce (NOAA) Departments
and at EPA) to act as cooperating agencies (40 CFR Sec. Sec. 1501.6 and
1508.5) or commenting agencies (40 CFR Part 1503) whereby they lend
their expertise to assist the lead agency. Similarly State agencies and
Indian Tribes may play such a role. By way of constructive approach, in
my testimony I invited the Task Force's attention to the newly enacted
Safe, Accountable, Flexible, Efficient Transportation Equity Act
(SAFETEA), which specifically provides for transportation funds to be
made available to State agencies and Indian Tribes which are
participating in the environmental review process for activities which
contribute to expediting and improving transportation planning and
project delivery.
Let me suggest three means of getting a handle on numbers
and budgets specific to each agency: 2
---------------------------------------------------------------------------
\2\ Please bear in mind that an agency can (1) prepare all NEPA
documents in-house with its own staff (which assures reliability and
build the environment into agency decisionmaking, but involves
personnel costs), (2) use a third-part contract whereby the agency
selects and supervises a consultant, but the applicant pays, or (3) in
the case of the Environmental Assessment (but for conflict of interest
reasons not an Environmental Impact Statement) allow an applicant to
prepare the document subject to scrutiny and revision by agency
personnel. See 40 CFR Sec. 1506.5.
---------------------------------------------------------------------------
1. The Task Force (or the Resources Committee) writes the head
of each agency and requests information on the number of personnel
deemed necessary to fulfill its NEPA obligations in an efficient but
thorough manner.
2. The Task Force directs CEQ to make such an inquiry.
3. The Congress statutorily directs the agencies to report back
by a date certain. 3
---------------------------------------------------------------------------
\3\ By way of analogy, in NEPA as it was originally enacted,
Congress directed each agency to review its authority and policies to
determine whether any hindered full compliance with NEPA and to report
to the President within 1 1/2 years. That section, NEPA Sec. 103, 42
USC Sec. 4333, reads as follows:
All agencies of the Federal government shall review their present
statutory authority, administrative regulations, and current policies
and procedures for the purpose of determining whether there are any
deficiencies or inconsistencies therein which prohibit full compliance
with the purposes and provisions of this Act and shall propose to the
President no later than July 1, 1971, such measures as may be necessary
to bring their authority and policies into conformity with the intent,
purposes, and procedures set forth in this Act.
Given the more discrete subject of this inquiry, a considerably
shorter reporting-back date would be warranted for personnel and
funding estimates.
---------------------------------------------------------------------------
Environmental Protection Agency staffing presents a
unique problem. In addition to its own direct NEPA responsibilities
(e.g., EPA EISs for sewage treatment plants funded by EPA), Congress
has imposed upon EPA the duty of reviewing and commenting on other
agencies' EISs. 4 Clean Air Act Sec. 309, 42 USC Sec. 4609.
5 I understand that today--despite the Congressional
command--EPA lacks the resources to perform the required reviews in all
cases.
---------------------------------------------------------------------------
\4\ This was part of an historic compromise between Senators
Jackson and Muskie whereby the latter was acting to link the scientific
resources of EPA to the implementation of NEPA governmentwide. This
function is largely implemented by EPA's 10 regional offices.
\5\ CAA Sec. 309, 42 USC Sec. 4609, reads as follows:
(a) The Administrator [of EPA] shall review and comment in
writing on the environmental impact of any matter relating to duties
and responsibilities granted pursuant to this chapter or other
provisions of the authority of the Administrator, contained in any (1)
legislation proposed by any Federal department or agency, (2) newly
authorized Federal projects for construction and any major Federal
agency action (other than a project for construction) to which section
4332(2)(C) of this title applies, and (3) proposed regulations
published by any department or agency of the Federal Government. Such
written comment shall be made public at the conclusion of any such
review.
(b) In the event the Administrator determines that any such
legislation, action, or regulation is unsatisfactory from the
standpoint of public health or welfare or environmental quality, he
shall publish his determination and the matter shall be referred to the
Council on Environmental Quality.
---------------------------------------------------------------------------
CEQ. CEQ, created by NEPA, oversees the implementation of
the Act. Without appropriate resources, it cannot do a rigorous job of
ensuring compliance with the CEQ NEPA Regulations. It is my
recollection that during the Nixon, Ford, and Carter Administrations
CEQ had a staff (including detailees from other agencies) in the 60 to
70 person range. I believe that it is now about 20. When I was General
Counsel, about 5 people spent most of their time on NEPA oversight and
another 6 to 8 (who were responsible for liaison with individual
agencies on behalf of the White House) spent a good portion of their
time on NEPA issues (with respect to the agencies for which they were
responsible). I understand that today CEQ has one person dedicated to
NEPA oversight and that two others each spend about half their time on
NEPA. Despite a high level of professional capability, that is
insufficient capacity effectively to oversee the implementation of the
law nationwide.
Q.2. Your comments about Federal and State cooperation provide another
example of CEQ regulations not being followed. You suggest that
Federal and State agencies ``avoid such cooperation'' that
could reduce duplication. /Two-part question: Why is
cooperation avoided and can cooperation be encouraged by
changes to NEPA?
I think the Federal-State cooperation is avoided for a number of
reasons, most of them having to do with a reluctance to do things
differently from the way people are used to doing them.
For instance, some of the state acts (as I noted in my
testimony) impose more far-reaching obligations that does NEPA, such as
the duty to mitigate adverse environmental impacts found in the
California, Massachusetts, and New York laws. Similarly, Montana's NEPA
analogue is linked to that State's Sunshine law, which imposes
obligations to do business in a more open manner than Federal officials
are accustomed. NEPA's regulations require that growth-inducing impacts
be evaluated, while California's CEQA does the same thing by
legislative enactment, and I understand some Federal officials think
(wrongly, I believe) that therefore the California requirement imposes
something additional to the Federal requirement. Federal officials are
sometimes reluctant to participate in a cooperative Federal-State
process which adds any requirement to or departs from the accustomed
NEPA process.
Sometimes there are simply different ways of doing things. On
one occasion I dealt with two Federal agencies, in one of which it was
the practice for the agency to sign a Draft EA before it went out for
public review, and in the other it was the practice to sign it only
after it had been revised to reflect public input. It took a certain
degree of pushing to get them to compromise. Sometime there are local
political considerations which a Federal official is reluctant to
acknowledge. I know of one instance in which a California city was
proposing an expansion of its airport, which needed both CEQA and NEPA
compliance. A majority of the City Council was in favor of the new
runway, but was unsure what would happen in the next election and
wanted the expansion approved in time so that it would not be an issue
in the election (and the runway potentially scuttled). The election
drove the local time table, but the Federal agency refused to commit
itself to the same timetable, with the result that duplicative CEQA and
NEPA documents were prepared under two separate processes with the CEQA
document being completed before the election and the nearly identical
NEPA document being completed after it.
All these problems should be non-issues. It is quite possible
with goodwill to deal with and solve them. There is no reason why both
Federal and State officials cannot be flexible and mutually respectful
of each other's sovereignty and statutory obligations and collaborate
to prepare one document to satisfy both laws (even if it has to contain
extra sections or chapters that might not be needed if only one law was
governing). From the point of view of an applicant to the two
governments, it is going to have to comply with both laws anyway, and
one process and one document is more efficient, more rapid, and less
costly than two.
In response to the second part of your question--yes, cooperation
can be encouraged by changes to NEPA. While I believe that the existing
CEQ Regulation mandating cooperation (40 CFR Sec. 1506.2 6)
provides what ought to be the necessary direction, a still firmer
Congressional directive can reinforce that direction, specifying that
Federal officials participating in joint NEPA-State mini-NEPA documents
shall so draft the documents to satisfy the requirements of both
Federal and State laws (even if that requires some analysis additional
to what would be done if the State was not participating) and similarly
requiring a sensitivity to the time constraints under which the State
or local agency is operating. 7
---------------------------------------------------------------------------
\6\ Sec. 1502.2, Elimination of duplication with State and local
procedures, reads as follows:
(a) Agencies authorized by law to cooperate with State
agencies of statewide jurisdiction pursuant to sections 102(2)(D) of
the Act may do so.
(b) Agencies shall cooperate with State and local agencies to
the fullest extent possible to reduce duplication between NEPA and
State and local requirements, unless the agencies are specifically
barred from doing so by some other law. Except for cases covered by
paragraph (a) of this section, such cooperation shall to the fullest
extent possible include:
(1) Joint planning processes.
(2) Joint environmental research and studies.
(3) Joint public hearings (except where otherwise provided
by statues).
(4) Joint environmental assessments.
(c) Agencies shall cooperate with State and local agencies the
fullest extent possible to reduce duplication between NEPA and
comparable State and local requirements, unless the agencies are
specifically barred from doing so by some other law. Except for cases
covered by paragraph (a) of this section, such cooperation shall to the
fullest extent possible include joint environmental impact statements.
In such cases one or more Federal agencies and one or more State or
local agencies shall be joint lead agencies. Where State laws or local
ordinances have environmental impact statement requirements in addition
to but not in conflict with those in NEPA, Federal agencies shall
cooperate in fulfilling these requirements as well as those of Federal
laws so that one document will comply with all applicable laws.
(d) To better integrate environmental impact statements in
State or local planning processes, statements shall discuss any
inconsistency of a proposed action with any approved State or local
plan and laws (whether or not federally sanctioned). Where an
inconsistency exists, the statement should describe the extent to which
the agency would reconcile its proposed action with the plan or law.
As may be evident, paragraph (a) applies essentially to State
transportation agencies; (b) applies to all State and local agencies;
(c) applies to State and local agencies when the State has a ``mini-
NEPA'' (about half the states); and (d) applies generally.
\7\ Of course Congress can direct the behavior of the Federal
officials and not that of State and local officials, but doing so would
solve half the problem and provide an incentive for States to take
comparable action.
---------------------------------------------------------------------------
I trust this is useful to the Task Force and stand ready to be of
further assistance should you so desire.
Respectfully submitted,
Nicholas C. Yost
cc: Vince Sampson
______
Miss McMorris. Mr. Dreher.
STATEMENT OF ROBERT G. DREHER,
GEORGETOWN UNIVERSITY LAW CENTER
Mr. Dreher. Good morning, Madam Chairwoman and members of
the Committee. The National Environmental Policy Act is this
Nation'S basic charter for protection of the environment. It is
also this Nation's environmental conscience. It is the model
for laws enacted around the world because it establishes the
basic principle that governments must consider the effects of
their actions on the human environment and consult with the
people affected by those actions. It is properly regarded as
one of America's great public policy successes.
NEPA is, first and foremost, a government accountability
statute. It is a law that empowers people--conservationists,
yes, but also businessmen, ranchers, State and local
governments, and ordinary citizens and gives them a voice in
Federal decisions that affect their lives in their communities.
And it has been broadly successful in integrating environmental
values into the Federal Government's decisionmaking.
My written testimony offers compelling examples of NEPA
success, including the survival of the ivory billed woodpecker,
whose habitat was protected by a citizen's lawsuit under the
act. NEPA thus functions as Congress intended: as a critical
tool for democratic diagnosis making.
Unfortunately, NEPA has been besieged in recent years by
piecemeal proposals in Congress and in the Federal agencies to
exempt Federal activities, to limit environmental reviews, or
to restrict public participation. The Task Force's review,
undertaken on NEPA's 35th anniversary, presented a critical
opportunity to recall the core values that the act serves and
to assess how the act serves those values today.
The Task Force received a letter signed by every former
chair of the Council on Environmental Quality, outlining three
principles central in NEPA: consideration of environmental
impact is essential to responsible government decisionmaking;
alternatives analysis is the heart of such review; and public
involvement is indispensable.
The Task Force should embrace those principles and use them
to measure the act's success and to assess whether changes like
those being proposed here today truly serve the act's goals.
Regrettably, the Task Force is focused almost exclusively
on complaints about the alleged burden that NEPA imposes on the
business communities. It has shown little apparent interest in
how well the act protects the environmental values in
fulfillment of Congress' mandate. The complaints that the Task
Force has heard about NEPA do not remotely warrant legislative
changes. The original objective of NEPA, after all, was
precisely to make agency decisionmaking more deliberate, more
careful, and more open to public debate.
Federal agencies have already gone to great lengths to
streamline the NEPA process. Thousands of minor governmental
functions are categorically exempted or considered in short
environmental assessments every year. Studies by the Federal
Highway Administration and others disprove the claim that the
need for review process causes inordinate delays in
decisionmaking. That is not to say that NEPA's implementation
cannot be improved. But there is no evidence that NEPA
generally imposes burdens and delays beyond what is necessary
to accomplish Congress' goal of responsible Federal
decisionmaking.
Critics of litigation overlook the essential role that the
independent Federal judiciary plays under NEPA. When Federal
agencies fall short, citizen suits are the only mechanism that
enforce the act's commands for environmental review and public
consultation. Critics often complain that the risks of
litigation creates pressure on agencies to create bulletproof
EISs. I think it might be more illuminating to ask what these
EISs would look like if there were no citizen enforcement. If
citizens did not have the right to go to court to enforce NEPA,
the law would quickly become a dead letter.
In any event, NEPA's critics greatly exaggerate the volume
of litigation under NEPA. As Mr. Yost has pointed out,
plaintiffs bring around 100 NEPA lawsuits per year,
representing only two-tenths of 1 percent of the 50,000 or so
actions that Federal agencies document each year under NEPA.
Only a few of those cases result in court orders blocking
government action. And those cases invariably involve serious
failures by Federal agencies to assess environmental impacts
responsibly or to listen to public concerns.
Business interests often characterize environmental
plaintiffs as improperly seeking near delay in Federal projects
they oppose. There is no basis for such ad hominem attacks. No
court has ever sanctioned a NEPA plaintiff for bringing a
frivolous complaint or for filing suit for improper purpose,
such as mere delay.
Litigation is expensive and time-consuming. It is generally
the last resort citizens and conservation groups invoke after
serious problems in the agency's environmental review have gone
unaddressed.
For these reasons, the procedural barriers some have
suggested to limit the public's right to enforce NEPA are
unwarranted. Such barriers would serve only to insulate Federal
agencies from accountability, for mistakes in their
environmental reviews, contrary to the basic principles of the
rule of law. A bond requirement, for example, like a poll tax
or a literacy test, would effectively exclude the poor,
minorities, and ordinary citizens from vindicating their
rights.
Now, the NEPA process can be improved in important ways to
better protect environmental values without legislative change.
First, promises to mitigate the adverse effects of Federal
actions should be recognized as binding commitments.
Second, agencies should monitor the environmental effects
of projects after they are completed. And, finally, Federal
agencies need increased training, staff and guidance to fulfill
their NEPA duties effectively and efficiently. Unfortunately,
virtually every Federal agency, including CEQ, faces a mounting
shortfall in its NEPA resources.
NEPA is a simple but profound guarantee of good government,
government that cares about the effects of its actions on the
human environment, on its citizens and on future generations.
Each of your constituents depends on NEPA for information about
what the Federal Government is doing that will affect their
lives and communities. NEPA should be celebrated, in my view,
on its 30th anniversary, not undermined. Thank you.
Miss McMorris. Thank you very much.
[The prepared statement of Mr. Dreher follows:]
Statement of Robert Dreher, Deputy Executive Director,
Georgetown Environmental Law & Policy Institute
I. INTRODUCTION
Good morning. My name is Robert Dreher. I am Deputy Executive
Director of the Georgetown Environmental Law & Policy Institute, a
component of Georgetown University Law Center that conducts research
and education on legal and policy issues relating to the protection of
the environment and conservation of natural resources. Thank you for
the opportunity to testify about the National Environmental Policy Act
(``NEPA'').
The National Environmental Policy Act is this Nation's basic
national charter for protection of the environment. It is also this
Nation's environmental conscience. It is the model for laws enacted in
states and nations around the world, because it establishes the basic
principle that governments must consider the effects of their actions
on the quality of the human environment, and consult with the people
who will be affected by those actions.
It is first and foremost a government accountability statute, and a
public disclosure law. It is the primary law that requires public
involvement, and public participation, and public disclosure of the
effects of government actions on ordinary people. It is a law that
empowers little people. It empowers business people. It empowers
individuals. It empowers Native Americans. It empowers minorities. It
empowers all of your constituents. And every case that has been brought
to enforce this law has been brought by your constituents against the
Federal government, to try to ensure that the Federal government looks
carefully at the consequences of its actions on those people. In that
sense, it is, indeed, the nation's environmental conscience.
My testimony today will address the broad questions facing this
Task Force as it completes its review of the Act's implementation:
1. What values does NEPA serve?
2. Is there persuasive evidence that the Act as implemented today
does not appropriately serve the purposes Congress envisioned?
3. How can the Act's implementation be improved?
My testimony draws upon my experience in litigation, in counseling
clients, and in academic research and teaching regarding environmental
impact analysis under NEPA. As a staff attorney for the Sierra Club
Legal Defense Fund (now Earthjustice), I represented citizens and
environmental organizations in litigation under that statute and other
environmental laws for more than 10 years. From 1996-2000, I served as
Deputy General Counsel to the U.S. Environmental Protection Agency; in
that capacity I advised agency officials on matters related to NEPA and
represented EPA in interagency discussions concerning the federal
government's compliance with the Act. After my service at EPA, I
counseled companies and government agencies on NEPA compliance in
private practice with the firm Troutman Sanders. At the Georgetown
Environmental Law & Policy Institute, I authored a report that
identifies the many current legislative and administrative threats to
NEPA's integrity and survival, offers a critical evaluation of the
rationales advanced by NEPA's opponents for these attacks on the law,
and suggests several meaningful improvements in how NEPA functions.
NEPA Under Siege (available at www.law.georgetown.edu/gelpi/news/
documents/NEPAUnderSiegeFinal--000.pdf). I have taught Federal Natural
Resources Law, including NEPA compliance, at the George Washington
University Law School for 13 years, and also at the Georgetown
University Law Center this year. I would note that my testimony
expresses my views; it does not necessarily reflect the views of the
Institute's board of advisors or Georgetown University.
II. THE NARROW SCOPE OF THE TASK FORCE'S REVIEW OF NEPA
I would note at the outset that the Task Force has compiled an
oddly limited record to approach these important questions. Indeed, the
Task Force's review may be notable as much for voices not listened to
and questions not asked as for the concerns it in fact has focused on
regarding NEPA's implementation. The Task Force's review, undertaken on
NEPA's 35th anniversary, presented the opportunity to re-examine the
core values that the Act serves, and to assess the extent to which the
Act as implemented today effectively serves those principles. To
understand whether NEPA continues to serve the public well, the Task
Force must ask what values it serves and how well it serves them.
The Task Force received a letter this fall from every living former
chair of the Council on Environmental Quality, respected environmental
leaders who served Presidents Nixon, Ford, Carter, George H.W. Bush,
and Clinton. That letter identified three basic principles underlying
NEPA:
(1) ``consideration of the impacts of proposed government actions
on the quality of the human environment is essential to responsible
government decision-making,''
(2) ``analysis of alternatives to an agency's proposed course of
action is the heart of meaningful environmental review,'' and
(3) ``the public plays an indispensable role in the NEPA
process.''
Letter from Russell E. Train, Russell W. Peterson, John Busterud,
Charles W. Warren, J. Gustave Speth, Michael R. Deland, Kathleen A.
McGinty, George T. Frampton, Jr., Gary Widman, and Nick Yost to The
Honorable Cathy McMorris (September 19, 2005). Those principles of bi-
partisan good government should be embraced by the Task Force. They
should serve as the basic measuring stick to assess whether NEPA is
being properly implemented today, and to evaluate any proposals for
changes in the law or in its implementation.
Unfortunately, the Task Force to date has focused on a narrow, and
almost uniformly negative, set of concerns: complaints raised by
representatives of businesses that use federal public lands and natural
resources for economic benefit that compliance with the Act's
procedures imposes burdens and delays on their activities. The Task
Force has shown little apparent interest in how NEPA protects
environmental values, in fulfillment of Congress's original goals for
the Act. Perhaps for that reason, the Task Force appears not to have
been particularly interested in the views of conservationists and
recreationists who, not surprisingly, see the value of NEPA and other
environmental laws in a very different light from business users of
federal lands and resources. Moreover, the Task Force virtually ignored
the people with the most hands-on experience in implementing NEPA:
federal officials responsible for complying with the Act.
Apart from a single regional Forest Service official, and today's
testimony from James Connaughton, Chairman of the Council on
Environmental Quality, the Task Force has shown no interest in learning
how federal agencies view NEPA, or how they think the Act's
implementation can be improved. The Department of Energy, for example,
conducts hundreds of NEPA analyses each year; its highest environmental
official, Assistant Secretary John Spitaleri Shaw, recently observed
that ``NEPA is an essential platform for providing useful information
to decisionmakers and the public, supporting good decisionmaking, and
thus advancing DOE's mission.'' Department of Energy, NEPA Lessons
Learned (March 1, 2005) at 1, at http://www.eh.doe.gov/neap/
lessons.html. Why would the Task Force not want to hear his views? Or
the views of experienced Justice Department litigators on the extent to
which NEPA litigation reflects real problems in agency compliance? By
contrast, CEQ's recent Interagency NEPA Task Force drew heavily upon
the expertise and perspective of experienced federal NEPA managers in
conducting a sober assessment of the Act's implementation and in
developing meaningful recommendations for improving the NEPA process.
None of the CEQ Task Force's recommendations, significantly, suggest a
need for changes in the Act itself or in the CEQ regulations that serve
effectively as the bible for federal agencies complying with NEPA.
Perhaps the most glaring omission in the Task Force's deliberations
has been its failure even to address the urgent threat to NEPA's
integrity and future arising from the actions of Congress, and of
certain administrative agencies, seeking to carve out piece-meal
exemptions from the Act's requirements. My report, NEPA Under Siege,
describes these assaults on the Act, ranging from measures in the 2003
Healthy Forests Restoration Act that restrict analysis of alternatives
and limit public participation in forest thinning projects to the
``rebuttable presumption'' established by the recent Energy Policy Act
of 2005 that numerous oil and gas activities are categorically excluded
from NEPA analysis. The most disturbing of these measures (1) exempt
large categories of government activity from the NEPA environmental
review process, (2) restrict the substance of environmental analysis
under NEPA, in particular by allowing federal agencies to ignore
environmentally superior alternatives to a proposed action, and (3)
limit opportunities for the public to comment on and challenge agency
environmental reviews. Cumulatively, these proposals threaten to kill
the NEPA process with a thousand cuts.
The Chairman of the Committee on Resources has identified the
proliferation of these ad hoc exemptions as one reason for the Task
Force to undertake a comprehensive review of the Act's working. Yet the
Task Force has not examined the justification for and impact of such ad
hoc exemptions from the Act's procedures, has not considered whether
such exemptions serve or disserve NEPA's purposes, and has not called
for a moratorium on such measures pending the completion of the Task
Force's review. To the contrary, members of the House Resources
Committee have themselves repeatedly advanced proposals to limit NEPA's
application, such as Representative Pombo's proposal to eliminate
alternatives analysis for renewable energy projects, even while the
Task Force has been engaged in this review.
The Task Force has thus assembled a regrettably poor foundation, in
my view, for a balanced, responsible assessment of NEPA's role in
government decision-making or the ways in which its implementation
could be improved.
III. THE VALUES NEPA SERVES
Congress enacted the National Environmental Policy Act in 1969 by
overwhelming bipartisan majorities. The Senate committee report on NEPA
stated: ``It is the unanimous view of the members of the Y Committee
that our Nation's present state of knowledge, our established public
policies, and our existing governmental institutions are not adequate
to deal with the growing environmental problems and crises the Nation
faces.'' Much of the problem, the Senate committee concluded, lay in
the fact that federal agencies lacked clear statutory direction to
incorporate environmental values into their decision-making: ``One
major factor contributing to environmental abuse and deterioration is
that actions--often actions having irreversible consequences--are
undertaken without adequate consideration of, or knowledge about, their
impact on the environment.'' NEPA was acclaimed by ranking Republicans
and Democrats in Congress as ``landmark legislation'' and ``the most
important and far-reaching environmental and conservation measure ever
enacted.'' When President Nixon signed NEPA into law on New Year's Day,
1970, he hailed the Act as providing the ``direction'' for the country
to ``regain[] a productive harmony between man and nature.''
NEPA has three visionary elements: a far-sighted declaration of
national environmental policy, an action-forcing mechanism to ensure
that the federal government achieves the Act's environmental goals, and
a broad recognition of the importance of public participation in
government decision-making that affects the human environment.
First, the Act declares a national policy for environmental
protection. Recognizing the ``profound impact of man's activity on
the--natural environment,'' and the ``critical importance of restoring
and maintaining environmental quality to the overall welfare and
development of man,'' Section 101 of NEPA commits the federal
government to ``use all practicable means and measures, Y in a manner
calculated to foster and promote the general welfare, to create and
maintain conditions under which man and nature can exist in productive
harmony, and fulfill the social, economic, and other requirements of
present and future generations of Americans.'' Congress directed that
``to the fullest extent possible'' the policies, regulations, and laws
of the United States be interpreted and administered in accordance with
the Act's environmental policies.
Second, NEPA creates an ``action-forcing'' mechanism to reduce the
environmental damage caused by federal actions ``undertaken without
adequate consideration of, or knowledge about, their impact on the
environment.'' The Act directs federal agencies, before proceeding with
any ``major Federal action,'' to prepare a ``detailed statement''
addressing how such action may affect the environment. The statement,
now known as an ``environmental impact statement'' or ``EIS,'' must
consider and disclose to the public the environmental impact of the
proposed action, alternatives to the proposed action, and the
relationship between short-term benefits from the action and long-term
environmental productivity. In addition to EISs, agencies prepare less-
extensive ``environmental assessments,'' or ``EAs,'' under NEPA to help
them determine whether proposed actions will have significant impacts
warranting preparation of an EIS, and may adopt rules excluding from
analysis categories of minor federal actions that have been found not
to have significant effects, either individually or cumulatively.
NEPA thus gives effect to the common-sense axiom ``look before you
leap.'' The Act does not require federal agencies to choose an
environmentally-friendly course over a less environmentally-friendly
option. But, as a practical matter, the requirement to prepare an EIS
ensures that agency decisions will reflect environmental values. As the
Supreme Court has observed:
Simply by focusing the agency's attention on the environmental
consequences of a proposed project, NEPA ensures that important
effects will not be overlooked or underestimated only to be
discovered after resources have been committed or the die
otherwise cast. Moreover, the strong precatory language
of...the Act and the requirement that agencies prepare detailed
impact statements inevitably bring pressure to bear on agencies
to respond to the needs of environmental quality.
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989).
Analysis of alternatives is the ``heart'' of an EIS, as the CEQ
regulations recognize. Comparing the environmental impacts of an agency
plan with the impacts of alternative courses of action helps define the
relevant issues and provides a clear basis for choosing among options.
By considering and, where appropriate, adopting reasonable alternatives
that meet agency objectives with less environmental impact, federal
agencies can achieve NEPA's environmental protection goals while
implementing their primary missions.
The third visionary element of NEPA is its creation of broad
opportunities for members of the public to participate in government
decisions that affect their environment. Congresswoman McMorris
suggested at the November 10th hearing that public participation in the
NEPA process comes only at the end, when a final document is
circulated. Nothing could be further from the truth. Opportunities for
public participation in the NEPA process start at the very beginning,
when agencies conduct ``scoping'' meetings to determine what
environmental issues and concerns should be studied. The public can
propose alternative approaches for the agency to evaluate, and can
later comment on gaps and misunderstandings in the agency's analysis at
the draft stage of the EIS. The circulation of the final EIS typically
includes another period for public scrutiny, but it is only the end of
a long public process. And ``the public'' includes not only individual
citizens, but businesses, charitable organizations, towns and other
local governments, tribes, state agencies, and even other federal
agencies affected by a proposed action.
Public participation in the NEPA process serves two functions.
First, individual citizens and communities affected by a proposed
federal agency action can be a valuable source of information and
ideas, improving the quality of environmental analysis in NEPA
documents as well as the quality of agency decisions. Second, allowing
citizens to communicate and engage with federal decision-makers serves
fundamental principles of democratic governance. NEPA reflects the
belief that citizens have a right to know, and to be heard, when their
government proposes actions that may affect them. For many individuals
and communities who understandably perceive federal agencies as remote
and insensitive, public participation in the NEPA process creates a
valuable crack in the bureaucratic wall. Indeed, for many federal
agencies the process of broad public involvement established under NEPA
is the primary avenue for communicating with and engaging the public
regarding their activities and for fulfilling more general requirements
in their governing statutes for public participation.
NEPA has been extraordinarily successful in accomplishing these
goals over its 35-year history. First, NEPA has unquestionably improved
the quality of federal agency decision-making in terms of its
sensitivity to environmental concerns. Examples are legion in which
proposed federal actions that would have had serious environmental
consequences were dramatically improved, or even in some instances
abandoned, as a result of the NEPA process. To cite just a few
instances:
In the early 1990s, mounting problems with obsolescent
nuclear reactors at its Savannah River site put the Department of
Energy under pressure to build enormously expensive new reactors to
produce tritium, a key constituent of nuclear warheads. A programmatic
EIS allowed DOE to evaluate alternative technologies, including using a
particle accelerator or existing commercial reactors, leading
ultimately to cancellation of the tritium production reactors.
Secretary of Energy James Watkins testified before the House Armed
Services Committee: ``Looking back on it, thank God for NEPA because
there were so many pressures to make a selection for a technology that
it might have been forced upon us, and that would have been wrong for
the country.''
The NEPA process led to improvements in a land management
plan for the Los Alamos National Laboratory that averted a potentially
serious release of radiation when the sensitive nuclear laboratory was
swept by wildfire in May 2000. The laboratory's initial management plan
did not address the risk of wildfire, but comments on the draft EIS
alerted the Los Alamos staff to that risk. The laboratory prepared a
fire contingency plan, cut back trees and underbrush around its
buildings, and replaced wooden pallets holding drums of radioactive
waste with aluminum. Those preparations turned out to be invaluable
when a major wildfire swept Los Alamos the following year.
In 1997, the Federal Energy Regulatory Commission was
considering issuance of a license for construction of a major new
hydropower dam on the Penobscot River in Maine. The EIS disclosed that
the proposed Basin Mills Dam would undermine long-standing federal,
state and tribal efforts to restore wild Atlantic salmon populations to
the Penobscot River. FERC received strong comments in opposition to the
project from federal and state fishery managers and the Penobscot
Indian Nation, among others, and concluded that the public interest was
best served by denial of the license.
The Ivory-billed woodpecker, recently rediscovered to
great public celebration, owes its survival in large part to NEPA. In
1971, shortly after NEPA's enactment, the Army Corps of Engineers
proposed to channelize the Cache River for flood control, threatening
the bottomland hardwood wetlands in the river basin on which the
woodpecker and many other species of wildlife depended.
Environmentalists challenged the adequacy of the Corps' NEPA analysis
in court, pointing out that the Corps had failed to evaluate
alternatives to its massive dredging program that would cause less
damage to wetland habitat. The court enjoined the Corps from proceeding
until it fully considered alternatives, and public outcry subsequently
led to the abandonment of the dredging project and the creation of the
national wildlife refuge where the Ivory-billed woodpecker was recently
sighted.
A massive timber sale proposed for the Gifford Pinchot
National Forest in Oregon, stalled by controversy over impacts on
sensitive forest habitat, was entirely rethought as a result of the
NEPA process. A coalition of environmentalists, the timber industry,
labor representatives and local citizens worked together to develop a
plan to use timber harvest to restore the forest's natural ecosystem.
Instead of clearcuts, the new proposal focuses on thinning dense stands
of Douglas fir (the result of previous clearcutting) to recreate a more
natural, diverse forest structure, while still yielding 5.2 million
board feet of commercial timber. The citizen alternative was adopted by
the Forest Service and implemented without appeals or litigation. A
local resident involved in the process says: ``It's a win, win, win.''
In Michigan, communities concerned about the impacts of a
proposed new four-lane freeway successfully used the NEPA process to
force the state highway agency to consider alternatives for expanding
and improving an existing highway, avoiding the largest wetland loss in
Michigan's history and saving taxpayers $1.5 billion. Similarly, a
proposed freeway in Kentucky's scenic bluegrass region was redesigned
to protect historic, aesthetic and natural values thanks to public
input and legal action during the NEPA planning process. The National
Trust for Historic Preservation acclaimed the Paris Pike as a project
that ``celebrates the spirit of place instead of obliterating it.''
These and other similar examples only begin to tell the story of
NEPA's success, however. One of NEPA's most significant effects has
likely been to deter federal agencies from bringing forward proposed
projects that could not withstand public examination and debate. Prior
to NEPA, federal agencies could embark on massive dam- or road-building
projects, for example, without public consultation and with virtually
no advance notice. As a result, family farms, valuable habitat, and
sometimes whole communities were destroyed without the opportunity for
full and fair debate. One dramatic example is Operation Plowshare, the
proposal by the Atomic Energy Commission in the 1950s and 60s to use
nuclear weapons to excavate harbors, dig canals, and create quarries.
Such projects could never survive public scrutiny under NEPA, and today
simply never get off the drawing boards.
More broadly, NEPA has had pervasive effects on the conduct and
thinking of federal administrative agencies. Congress's directive that
federal agencies use an ``interdisciplinary approach'' in decision-
making affecting the environment, together with the Act's requirement
that agencies conduct detailed environmental analyses of major actions,
has required federal agencies to add biologists, geologists, landscape
architects, archeologists, and environmental planners to their staffs.
These new employees brought new perspectives and sensitivities to
agencies that formerly had relatively narrow, mission-oriented
cultures. NEPA's requirement that agencies consult with federal and
state agencies with special environmental expertise also has helped
broaden agency awareness of environmental values.
Equally important, NEPA has succeeded in expanding public
engagement in government decision-making, improving the quality of
agency decisions and fulfilling principles of democratic governance
that are central to our society. Today, citizens take it as a given
that major governmental actions that could affect their lives and their
communities will be subject to searching public examination and
discussion. As CEQ concluded in a report commemorating NEPA's 25th
anniversary, ``NEPA's most enduring legacy is as a framework for
collaboration between federal agencies and those who will bear the
environmental, social, and economic impacts of their decisions.'' CEQ
noted that ``agencies today are more likely to consider the views of
those who live and work in the surrounding community and others during
the decision-making process.'' As a result, ``Federal agencies today
are better informed about and more responsible for the consequences of
their actions than they were before NEPA was passed.''
NEPA thus functions, as Congress intended, as a critical tool for
democratic government decision-making. The Act ensures that federal
agencies weigh environmental consequences before taking major action,
and establishes an orderly, clear framework for involving the public in
major decisions affecting their lives and communities.
IV. CRITICISMS OF THE ACT
The Task Force has nonetheless heard complaints about the Act,
particularly from representatives of businesses seeking economic
benefit from federal lands and resources. That criticism has focused on
the general allegation that NEPA imposes undue burdens on business
interests. NEPA's critics also claim that litigation by citizens
seeking to enforce the Act is brought for improper purposes, and
inappropriately bogs down federal decision processes. Neither
complaint, in my view, is warranted.
The Argument That NEPA Is Too Burdensome and Time-Consuming
As an initial matter, it bears emphasis that making agency
decision-making more deliberate--and creating opportunities for public
debate and discussion--was one of the original objectives of NEPA. NEPA
was adopted out of concern that federal agencies too often acted
unilaterally, without taking the time to consider alternatives to their
proposed actions and without providing an opportunity for the public to
comment. Thus, complaints about the delays produced by NEPA may simply
reflect disagreement with NEPA's goal of fostering more careful, and
more open, federal decision-making.
In addition, those objecting to alleged delays and administrative
burdens imposed by NEPA generally fail to acknowledge the great lengths
to which federal agencies have already gone to streamline the NEPA
process. Many thousands of minor government functions are categorically
exempted from NEPA analysis each year. CEQ has estimated another 50,000
federal actions are given limited review in environmental assessments
each year. As a result of this winnowing process, agencies prepare only
about 500 draft, final and supplemental EISs annually. In the case of
federally-funded highway projects, for example, 97% of the projects are
dealt with under a categorical exclusion or by preparing an EA; only 3%
require preparation of an EIS.
Finally, the evidence does not support the argument that the NEPA
review process causes inordinate delays in decision-making. For
example, studies by the Federal Highway Administration (``FHWA'') show
that environmental reviews take up only a quarter of the total time
devoted to planning and constructing a major highway project, hardly a
disproportionate commitment for projects that will make permanent
changes to the landscape. The significant delays that sometimes occur
in highway projects are generally due to other causes, such as lack of
funding, the low priority assigned to a project by the sponsoring state
transportation agency, or significant local disagreements over the
merits of the project. A comprehensive survey conducted by the Natural
Resources Council of America of agency NEPA implementation confirmed
that NEPA is not a major cause of project delays:
In none of the twelve agencies reviewed during this study did
NEPA emerge as the principal cause of excessive delays or
costs. Instead, the NEPA process was often viewed as the means
by which a wide range of planning and review requirements were
integrated. Other administrative and Congressional requirements
were sometimes cited as resulting in lengthy delays in decision
making, which persons outside the agencies attributed to NEPA.
Robert Smythe & Caroline Isber, Natural Resources Council of America,
NEPA in the Agencies--2002 1 (October 2002).
That is not to say that NEPA's implementation cannot be improved,
or that every environmental review under the Act is well managed.
Although CEQ's regulations emphasize that environmental reviews should
be efficient, timely and useful for federal decision-makers, federal
agencies sometimes produce EISs that are too lengthy and technical for
agency decision-makers or the public to readily understand. NEPA
processes are sometimes poorly managed, uncoordinated, and unduly
prolonged. As discussed below, better management of the NEPA process,
and improved guidance and training for federal agencies, are important
in order to make the Act work more effectively. But there is no
evidence that NEPA has, as a general matter, imposed burdens and delays
on agencies beyond what Congress originally contemplated in enacting
NEPA or beyond what is necessary to accomplish NEPA's environmental-
protection goal.
The Argument That NEPA Generates Wasteful Litigation
Critics of NEPA also contend that the Act produces too much
wasteful litigation. But this criticism overlooks the essential role
the independent federal judiciary plays in ensuring that NEPA is
actually enforced. When federal agencies' NEPA compliance falls short,
litigation brought by aggrieved parties enforces the Act's commands for
environmental review and public consultation in the context of
particular projects. More broadly, individual NEPA suits send the
message to agencies that the courts will police compliance with the
law. Agency personnel and industry representatives sometimes complain
about the pressure that the Act places on agencies to do thorough and
defensible environmental reviews, lamenting the creation of ``bullet-
proof'' EISs. It is more illuminating, perhaps, to ask what federal
EISs would look like if there were no concern about potential citizen
enforcement. Six-page checklists, with no substance, like some agency
EAs today? If citizens did not have the right to go to court to enforce
NEPA, I think it is fair to presume that the law would quickly become a
virtual dead letter.
Congresswoman McMorris observed during the Task Force's hearing on
November 10th that it is not clear that ``anything has been settled''
by NEPA litigation. To the contrary, the courts' rulings in NEPA cases
have clarified many of the basic principles for conducting
environmental impact analysis under the Act. The application of those
principles to the circumstances of a particular federal project,
however, is inevitably case-specific. It is thus not surprising that
the courts confront certain difficult issues, such as whether a federal
agency has properly determined that its action will not have
significant effects on the human environment, or has adequately
considered cumulative impacts, over and over again in the context of
particular cases.
In any event, NEPA's critics greatly exaggerate the volume of
litigation NEPA generates. At the November 10th, for example,
Congresswoman McMorris suggested that ``thousands of NEPA suits'' were
pending before the courts. In fact, according to CEQ, only 251 NEPA
suits were pending in 2004. Because agency compliance with NEPA is now
generally quite good, NEPA actually generates a relatively small volume
of litigation. Concerned parties typically file about 100 NEPA lawsuits
per year, representing only 0.2% of the 50.000 or so federal actions
documented each year under NEPA. CEQ, Environmental Quality: 25th
Anniversary Report 51 (1994-95). The incidence of NEPA litigation has
risen slightly in this Administration, averaging about 140 suits per
year, but that number still represents an infinitesimal fraction of
federal actions subject to the Act. Not surprisingly, given the broad
range of interests involved in the NEPA process, the types of
plaintiffs bringing these suits cover the waterfront, including state
agencies, local governments, business groups, individual property
owners, and Indian tribes, as well as environmental groups.
Even the tiny fraction of NEPA actions that give rise to court
suits overstates the significance of litigation, because only a few of
these suits result in court orders blocking government action.
According to data compiled by CEQ, preliminary injunctive relief was
granted in NEPA cases only 55 times from 2001-2004, and permanent
injunctions were issued only 42 times (often, presumably, in the same
case in which preliminary injunctive relief had been granted). The term
``permanent injunction'' is misleading in this context, of course,
because even a final court order only imposes a temporary delay until
the agency revises its environmental review to comply with NEPA. The
courts ordered a remand of certain issues to the federal agency in 66
cases in those four years. On the other hand, the courts ruled for the
defendant agencies 214 times during this period, and dismissed NEPA
cases (in some cases after a settlement) in another 259 cases. CEQ
litigation surveys 2001-2004, at http:/ceq.eh.doe.gov/nepa. Given the
continuing importance of judicial enforcement in ensuring faithful
implementation of NEPA, the complexity of environmental impact analysis
and the controversy frequently generated by major government actions,
these data are neither surprising nor particularly troubling.
NEPA's critics also routinely disparage the motivations of
plaintiffs who challenge agency environmental reviews. Business
interests, some of whom openly admit that they themselves turn to the
courts to enforce the Act, often characterize environmental plaintiffs
as improperly seeking ``mere delay'' in federal projects they oppose.
There is no record in the hundreds of NEPA decisions issued by the
courts to support such ad hominem attacks. The rules of civil procedure
require counsel in any litigation to certify, based on reasonable
inquiry, that the action is not brought for any improper purpose, such
as to harass or to cause unnecessary delay or needless cost, and that
the claims presented have a sound basis in fact and law. To my
knowledge, no court has ever sanctioned a NEPA plaintiff for bringing a
frivolous complaint, or for filing suit for improper purpose, such as
mere delay. The only cases I have found in which the courts have
entertained motions for such sanctions involved businesses suing under
NEPA to protect purely economic interests--seeking to impede a
competitor who has received a federal permit or license, for example--
rather than environmental interests, and even those requests have been
denied.
Litigation is expensive and time-consuming; it is generally the
last resort citizens and conservation groups invoke after serious
problems in an agency's environmental review have gone unaddressed.
Moreover, environmental plaintiffs understand that NEPA only requires
reasonable, good-faith consideration and disclosure of environmental
consequences, and cannot be invoked to reverse an agency's substantive
decision to proceed with an action. Environmental plaintiffs thus
harbor no expectation that a federal court will substitute its judgment
on the wisdom of a proposed project for that of the agency. What
environmentalists do hope is that requiring an agency to fully evaluate
and disclose the environmental impacts of a proposed action may lead to
a different, more environmentally-sensitive approach--adoption of an
alternative with less environmental impact, or commitment of additional
mitigation, for example. Where environmental damage is particularly
severe, and appears to outweighs the public benefits of a project,
environmentalists may hope that the agency--or Congress--can be
persuaded to cancel a proposed project altogether. But such hopes are
founded in the beneficial effect that identification and disclosure of
environmental consequences have on government decision making, just as
Congress envisioned when it enacted NEPA.
For these reasons, the severe procedural barriers some have
suggested to limit NEPA litigation are wholly unwarranted, and would
serve only to prevent the public from vindicating its rights under the
Act. Members of the Task Force discussed at the November 10th hearing a
proposal to require plaintiffs to file a substantial bond before
bringing suit under NEPA, for example. That mechanism would impose
crippling and unfair disabilities on citizens and non-profit
organizations. Like a poll tax or a literacy test, it would serve
effectively to exclude the poor and minorities from protecting their
rights in the federal courts. Others have suggested impossibly tight
statutes of limitation for bringing suit--20 days, for example. Such
time pressures would make reasoned consideration of whether litigation
is warranted virtually impossible, particularly for citizens faced with
wading through massive agency decision documents. Unnecessary
litigation, brought as a protective measure to avoid the loss of a
plaintiff's rights, would inevitably result.
V. REFORMS TO IMPROVE THE ACT'S IMPLEMENTATION
Although much criticism of NEPA is unwarranted, there are important
improvements that can and should be made to the NEPA process to better
protect environmental values, in fulfillment of Congress's purposes.
None of these improvements would require legislation.
Make Mitigation Promises Mandatory
First, agency promises during the course of the NEPA review process
to ``mitigate'' the adverse effects of federal actions should be
recognized by the agencies as binding commitments. Virtually every
federal agency decision made under NEPA includes some mitigation
designed to avoid, reduce, or compensate for environmental damage that
would otherwise occur. Mitigation measures may include, for example,
installing fish passage at a new hydropower dam, restoring degraded
wetlands to compensate for wetlands destroyed by a new roadway, or
adopting traffic reduction measures to reduce air pollution from a new
development. Agencies routinely point to proposed mitigation measures
in NEPA documents to explain how the adverse effects of a federal
agency action have been reduced to an acceptable level. Agencies also
rely on mitigation to justify the conclusion that their actions will
not have sufficiently significant adverse effects to require an EIS,
allowing them to issue a ``mitigated FONSI'' on the basis of a
relatively superficial EA instead. Failure to carry through on such
mitigation seriously undermines NEPA's goal of protecting the
environment, and undermines the integrity of the NEPA review process.
To maintain the integrity of their NEPA analyses, federal agencies
should revise their NEPA procedures to preclude hollow promises of
mitigation. When an agency proposes a mitigation measure as part of the
preferred alternative under NEPA, the agency's decision to proceed with
the action should include a commitment to proceed with the mitigation
as well. Unless the proposed mitigation is guaranteed under the
requirements of a separate statute or regulation, agencies should be
allowed to rely upon mitigation in the NEPA process only if (1) the
mitigation is made an integral part of the proposed action, (2) it is
described in sufficient detail to permit reasonable assessment of
future effectiveness, and (3) the agency formally commits to its
implementation in the Record of Decision, and has dedicated sufficient
resources to implement the mitigation. Where a private applicant is
involved, the mitigation requirement should be made a legally
enforceable condition of the license or permit. The feasibility of this
proposed reform is confirmed by the Department of the Army's 2002 NEPA
regulations, which require Army officials to demonstrate that any
mitigation measures included in a final decision have been funded as an
integral part of the project and to commit to implementing the
mitigation and monitoring its effectiveness. 32 C.F.R. ' 651.15(b)
(2003). Similarly, where the Army relies on mitigation measures to
conclude that an EIS is not needed, such measures ``become legally
binding and must be accomplished as the project is implemented.'' Id.
Require Monitoring of Project Impacts
A second useful reform would be to enhance monitoring of the
environmental effects of projects after they are completed. Too often,
federal agencies invest significant resources in complex scientific
assessments of the potential consequences of a proposed action without
committing sufficient resources to monitoring the project's actual
impacts.
Enhanced monitoring goes hand in glove with the proposal to make
promised mitigation measures enforceable commitments. On-the-ground
inspection and evaluation to make sure mitigation measures are being
implemented successfully are essential to make mitigation commitments
real. Improved monitoring also will provide the basic data necessary to
conduct adaptive management, where that technique is potentially
useful, and to help implement agency environmental management systems.
Monitoring should reveal where the agency's actions are having greater
impacts than anticipated, allowing the agency, and the public, to
assess whether additional mitigation steps are needed. By the same
token, monitoring will demonstrate whether projects or programs have
produced completely unanticipated environmental effects. Monitoring
thus can help ensure that NEPA supports a continuing, flexible, and
responsive approach to managing the environmental effects of agency
actions. Finally, improved monitoring will provide the data needed to
allow agencies and environmental professionals to assess the accuracy
and reliability of environmental reviews and evaluate new methodologies
for environmental impact assessment, improving the NEPA process in the
long term.
Improve Management, Training and Funding for Agency NEPA Compliance
Although NEPA has been in effect for 35 years, federal agencies
still struggle to carry out its mandate to incorporate environmental
values and public views in federal decision-making. CEQ has called
repeatedly for agencies to improve their implementation of NEPA to make
environmental reviews more focused, more useful to the decision-maker,
and less burdensome. The CEQ regulations direct federal agencies to
reduce paperwork by limiting the length of EISs, using the scoping
process to identify significant issues and writing in plain language,
and to reduce delay by integrating the NEPA process into the agencies'
early planning, establishing time frames for the analysis and
coordinating with other responsible federal, state and local agencies.
40 C.F.R. Sec. Sec. 1500.4, 1500.5.
Not all federal agencies have heeded CEQ's direction,
unfortunately. Furthermore, some aspects of environmental impact
assessment are technically complex and poorly understood by federal
agency officials. Cumulative impact analysis, for example, is a
difficult and evolving field that often poses challenges for federal
agencies engaged in environmental reviews. Integration of NEPA analysis
with adaptive management and with newly-developed agency environmental
management systems is another challenge, requiring creative and careful
thinking from federal agencies.
Improving agency implementation of NEPA will require increased
attention by agency managers, who must take responsibility for ensuring
that environmental reviews are integrated into agency decision
processes, coordinated with other affected agencies, and completed in a
timely manner. Expanded guidance and training for federal agencies on
NEPA implementation is also critically important. The Interagency NEPA
Task Force recently called on CEQ to provide more training and guidance
for federal agencies, particularly on difficult technical issues, such
as cumulative effects analysis and adaptive management. NEPA Task
Force, Report to the Council on Environmental Quality: Modernizing NEPA
Implementation (Sept. 2003). CEQ's ability to meet the critical need
for such guidance and training is constrained, unfortunately, by severe
funding and staffing limitations.
More generally, there is a serious and mounting shortfall in the
financial resources provided to federal agencies to carry out their
NEPA responsibilities. Every study of NEPA implementation has
highlighted the problem of inadequate financial and staff resources.
Unfortunately, the deficiency in agency NEPA funding continues to get
worse: agency NEPA staffs face increasing workloads, but a majority of
agency NEPA offices have nonetheless suffered substantial reductions in
both their budgets and staff positions in the past few years. Staff in
the Army Corps of Engineers' Office of Environmental Quality, for
example, which oversees all environmental aspects of the Army Corps'
civil works program, has been reduced over the last several years from
12 to 3 full time employees (``FTEs''). Similarly, the Department of
Energy's headquarters Environmental Office has been reduced over the
past decade from 26 FTEs to 14, and its budget cut from $7 million to
$1.5 million, even as its NEPA workload has increased. Without adequate
funding and staffing to carry out their NEPA responsibilities, the
pressure will inevitably mount on agencies to find ways to short-cut
NEPA compliance.
A meaningful effort to improve NEPA's implementation thus must
include commitments of additional resources so that agencies can carry
out their responsibilities under the Act effectively and efficiently.
VI. CONCLUSION
NEPA is a simple, but profound, guarantee of good government--
government that cares about the effects of its actions on the human
environment, on its citizens, and on future generations. Each of your
constituents depends on NEPA for the basic information about what the
Federal government is doing that will affect his or her life and
community. NEPA continues to serve the important values Congress
recognized in establishing our national environmental policy of
``productive harmony'' between man and nature. Federal agencies can and
should work harder to fulfill NEPA's purposes. But the Act continues to
serve the American public well. NEPA should be celebrated on its 35th
anniversary, not undermined.
______
Miss McMorris. Thank you. Mr. Goldstein.
STATEMENT OF NICK GOLDSTEIN, AMERICAN ROAD & TRANSPORTATION
BUILDERS ASSOCIATION
Mr. Goldstein. Chairwoman McMorris and other members of the
Task Force, I am Nick Goldstein, Staff Attorney for the
American Road and Transportation builders Association.
ARTBA represents more than 5,000 members nationwide
involved in all sectors of the transportation, design and
construction industry. I would like to begin my testimony by
thanking the House Committee on Resources and the members
present today for undertaking a comprehensive effort to review
and update the National Environmental Policy Act, NEPA.
Let me stress at the outset that ARTBA shares the Task
Force's goal of protecting the environment and minimizing the
impact of development. This was the original intent of NEPA.
NEPA should be a means by which to reach informed decisions
about major Federal actions. However, in its current state,
NEPA generates far more documents than decisions.
I think all of those appearing before you today would agree
that NEPA plays an essential role in any project decisionmaking
process and that improvements can be made to the NEPA process
that would not weaken or diminish the overall effects of the
act.
Specifically, changes in NEPA could be made that reduce the
amount of delay to transportation projects. Even the Sierra
Club in its 2003 report, ``On the Road to Better Transportation
Projects,'' noted that, quote, ``the NEPA process is not
perfect, and there are methods to improve it,'' end quote.
Sometimes when we look at these issues, it is difficult to
see the forest through the trees. This Nation has been in a--is
in a transportation capacity crisis. And the use of NEPA as an
impediment to addressing this challenge is counter to the
public interest.
Where NEPA is largely being abused is in the case of new
capacity-enhancing projects. It is these projects which have
the greatest potential to improve air quality and public safety
through the reduction of travel congestion.
In addition to procedural reforms, ARTBA feels that it is
critical that this Task Force focus on the abuse of NEPA
through litigation. The major causes of abuse under NEPA is
that the statute allows for lawsuits to be filed with no basis
in fact, that have no other intention but to cause delays to
Federal projects. And some organizations take full advantage of
this opportunity.
In graphic terms, Jay Kardan, Conservation Chairman of the
Virginia Chapter of the Sierra Club, offered this perspective.
Quote: ``Facts and reason are much less important than the
amount of noise you can make. Officials who support highway
projects should be mercilessly abused, shamed, ridiculed, and
otherwise made to suffer pain. This objective should be to
cleave a division through the community so painful that people
will remember it for decades afterward.''
This is not the intent of NEPA. But it reflects how the
statute can and is being abused.
When NEPA is used in this manner, its purpose of achieving
balance and obtaining consensus decisions regarding federally
funded projects is defeated. Instead, it is transformed into a
vehicle for needless delay and stifles community
decisionmaking.
ARTBA most recently experienced the effects of NEPA being
used as a tool for delay in litigation involving a widening
project of U.S. 95 outside of Las Vegas, Nevada. It is also
being felt in parts of Utah as part of the ongoing political
struggles over the legacy highway project.
These types of disruptions have a much bigger effect than
simply putting a construction project on hold while litigation
takes place. Also put on hold by lawsuits are improvements in
air quality, public health, and safety.
It is with this in mind that I offer the Task Force the
following recommendations for improving NEPA:
First, a 180-day time limit on lawsuits has been
established in the recently passed transportation bill as
mentioned here today. This is reasonable and should be extended
through NEPA to all projects.
Second, consideration of the environmental benefits to
proposed projects as opposed to just their impacts as well as
the environmental consequences of not undertaking a project
need to be incorporated into the NEPA process.
Third, NEPA litigation should be limited only to those
issues that have been fully raised and discussed during the
public comment period for a project. This will help ensure that
litigation is not used simply to move the goal posts by
opponents of a project that has otherwise satisfied NEPA
requirements.
And finally, the development of a dispute resolution
process, ensuring that litigation is used as a last resort
rather than a first step in solving these types of problems.
Members of the Task Force, ARTBA deeply appreciates the
opportunity to present testimony to you as part of this
important and needed discussion on NEPA. And I look forward to
any questions that you might have. Thank you.
Miss McMorris. Thank you.
[The prepared statement of Mr. Goldstein follows:]
Statement of Nick Goldstein, Staff Attorney,
American Road and Transportation Builders Association
Good morning, Chairwoman McMorris and other members of the task
force. Thank you very much for providing the American Road and
Transportation Builders Association (ARTBA) the chance to present its
views before this task force on the subject of updating and improving
the National Environmental Policy Act (NEPA).
I am Nick Goldstein, staff attorney for ARTBA. ARTBA, whose eight
membership divisions and more than 5,000 members nationwide, represent
all sectors--public and private--of the U.S. transportation design and
construction industry. ARTBA is based here in Washington, D.C., and has
provided the industry's consensus policy views before Congress, the
executive branch, and the federal judiciary for 103 years. The
transportation design and construction industry ARTBA represents
generates $200 billion annually to the nation's Gross Domestic Product
and sustains the employment of more than 2.5 million Americans.
Let me stress at the outset that ARTBA shares the task force's goal
of protecting the environment and minimizing the impacts of
development. ARTBA also supports NEPA and realizes that it is an
integral component of the transportation planning process.
ARTBA celebrates the commitment of the transportation construction
industry to the environment every year when we hand out the
association's Globe Awards to those transportation construction
professionals, firms and public agencies that do an outstanding job in
protecting and/or enhancing the natural environment in the planning,
design and construction of U.S. transportation infrastructure projects.
Many, if not all of these projects would not have been so recognized
were it not for the NEPA process.
NEPA Background
Madame Chairwoman, transportation infrastructure projects must
navigate through an often time-consuming and complex planning process.
In 1969, Congress passed NEPA, which is a process-guiding act of
general applicability designed to ensure compliance with the many
specific federal environmental laws, permitting and consultation
activities that involve a number of federal agencies. NEPA establishes
general policy, sets goals and provides a means for carrying out these
policies.
NEPA is triggered any time an action by the federal government will
result in an ``environmental impact.'' The White House Council on
Environmental Quality defines ``environmental impacts'' as any impact
on the environment or historic and cultural resources. Agencies such
as: the U.S. Army Corps of Engineers (Corps) for wetland and water
permits; the U.S. Fish and Wildlife Service (FWS) for Endangered
Species Act compliance; the Advisory Council on Historic Preservation
(ACHP) for historic preservation laws; the U.S. Environmental
Protection Agency (EPA); and many other agencies are commonly involved
in this process. NEPA does not mandate specific outcomes. It simply
governs how the process must take place. NEPA is activated in the
transportation construction planning process when federal funds are
being used to finance the project.
NEPA establishes three classes of environmental reviews that must
take place, based on the magnitude of the anticipated impact of the
proposed transportation project:
1) Environmental Impact Statement (EIS). Projects where a
significant environmental impact is anticipated must complete a full
EIS. Many federal agencies, such as the Federal Highway Administration
(FHWA), have developed their own policies to implement NEPA and to
address the necessity of an EIS. For example, FHWA regulations mandate
that an EIS be prepared where a new controlled access highway or road
project with four or more lanes is going to be constructed on a new
location.
2) Environmental Assessment (EA). In instances where neither NEPA
nor FHWA's own regulations dictate that an EIS must be completed, a
less strenuous EA must be completed. An EA will result in one of two
results: there will be a ``finding of no significant impact'' (FONSI)
to the environment; or the agencies will determine there will be a
significant impact, thereby prompting them to conduct a full EIS.
Widening or expanding the capacity of an existing highway is a typical
highway project that would require an EA.
3) Categorical Exclusion (CE). Projects that neither individually
nor cumulatively have a significant environmental impact can be treated
as a CE. State agencies must provide FHWA with sufficient information
on a case-by-case basis to demonstrate that environmental impacts
associated with a project will not rise above the CE threshold. Road
rehabilitation or bridge replacement projects are typical highway
projects that would only require a CE.
An EIS is the most intensive and time-consuming of the processes
described above. If an EIS is performed, the agency performing the
review, i.e., the state department of transportation (DOT), must
prepare a document that identifies each environmental impact of a
proposed project, as well as alternatives that may have different
impacts and the pros and cons of each. This document must be released
in draft form to allow the public and other government agencies to
submit comments. These comments must then be addressed when the EIS is
published in its final form. In rejecting different alternatives, NEPA
requires the agency to carefully document why other alternatives were
not selected.
Delays in the Process
Madame Chairwoman, you don't have to be an expert to know that our
transportation planning process has reached a state of gridlock. Today,
it is almost as if one needs a global positioning system to keep track
of where a transportation improvement project is in the review process.
According to a recent report by the U.S. Government Accountability
Office (GAO), as many as 200 major steps are involved in developing a
transportation project from the identification of the project need to
the start of construction. According to the same report, it typically
takes between nine and 19 years to plan, gain approval of, and
construct a new major federally funded highway project. This process
involves dozens of overlapping state and federal laws, including NEPA,
state NEPA equivalents, wetland permits, endangered species
implementation, clean air conformity, etc. Often times these procedures
mask disparate agendas or, at a minimum, demonstrate an institutional
lack of interagency coordination that results in a seemingly endless
string of delays.
It is true--according to FHWA--that only about three percent of
federally funded highway projects require the completion of an in-depth
EIS. Since1990, Interstate lane miles have only increased by about six
percent. The fact is there are very few projects in terms of numbers
that involve new construction, thereby requiring an EIS. However, most
of these projects are very large in scope and account for a significant
portion of each state's construction budget in any given year. Many of
these projects, while small in number, are very large in terms of cost,
often in the range of tens of millions of dollars and even in excess of
a billion dollars each. These projects also have the most substantial
potential benefits for public safety and mobility for the traveling
public and are, therefore, frequently high priority projects for most
states.
A recent study by FHWA found the time required to process
environmental documents for large projects has doubled over the past
two decades. In the 1970s, the average time for completion of an EIS
was 2.2 years. Former U.S. DOT Assistant Secretary for Policy Emil
Frankel recently reported that from 1999-2001 the median time for
completing an EIS was 4.4 years. If federal Clean Water Act section 404
wetland permit issues or section 4(f) of the Department of
Transportation Act of 1966 (Section 4(f)) historic preservation or
parkland avoidance issues come into play, the average time period grows
by an additional two years, on average.
However, delays in the transportation project environmental review
and approval process are not only limited to large projects. While
according to FHWA three percent of federally funded transportation
improvement projects require an EIS, the remaining 97 percent require
an EA, (6.5 percent) or CE (90.6 percent). A recent report conducted by
the National Cooperative Highway Research Program (NCHRP) stated:
``[D]elays in completing [EA and CE] reviews are encountered
frequently despite the minimal environmental impacts associated
with such projects. Even if such project-level delays are
individually small, their cumulative impact may be significant
because most transportation projects are processed as CEs or
EAs.''
According to the report, 63 percent of all state DOTs responding to
the survey reported environmental process delays with preparation of
CEs and 81 percent reported similar delays involving EAs. These delays
triple average environmental review times for CEs--from about eight
months to just under two years--and have more than doubled review times
for EAs, from under 1.5 years to about 3.5 years. The most common
reason for these delays: section 4(f) requirements (66 percent);
section 106 of the National Historic Preservation Act (NHPA) (61
percent); and section 404 of the Clean Water Act (53 percent). These
numbers are consistent with a survey ARTBA conducted in 2001 of 49
state DOTs on delays in the environmental review process.
Because of these lengthy delays, many state DOTs have simply
assumed extended time periods in their planning schedules, giving the
misimpression that the environmental review process is not taking an
inordinately lengthy period of time. While many environmental groups
state that delays are primarily due to funding issues, the complexity
of the project or low priority of the project, just the opposite is
true. State DOTs often withhold funding on projects until the
environmental review process is complete, making it appear that funding
is the reason for the delay.
NEPA was never meant to be a statute that enabled delay, but rather
a vehicle to promote balance. While the centerpiece of that balancing
is the environmental impacts of a project, other factors must be
considered as well, such as the economic, safety, and mobility needs of
the affected area and how the project or any identified alternative
will affect those needs. When NEPA is used as a method of preventing a
chosen outcome by those who disagree with that decision, its purpose as
a balancing statute is defeated.
The basic problem is that the development of a transportation
project involves multiple agencies evaluating the impacts of the
project as required by NEPA. While it would seem that the NEPA process
would establish a uniform set of regulations and submittal documents
nationwide, this has not been the case. For example, the EPA, Corps,
FWS and their companion state agencies each require an independent
review and approval process, forcing separate reviews of separate
regulations, and unique determinations of key benchmark issues--such as
the purpose and needs of a project--and requiring planners to answer
multiple requests for additional information. Also, each of these
agencies issues approvals according to independent schedules.
The original intent of NEPA was to coordinate the federal decision-
making process, rather than splintering it. However, in its current
state, NEPA generates far more documents than it does actual decisions.
Instead of spreading out the environmental review process among various
agencies, NEPA should consolidate that process among the agency with
oversight of that particular project. In the case of a highway project,
the U.S. DOT should be the ``lead agency'' in the environmental review
process. Also, NEPA should coordinate the different aspects of the
environmental review process so that they can be done concurrently, and
data generated can be used for multiple aspects of the environmental
review process. ARTBA is pleased that reforms with this goal have been
included in the recently enacted ``Safe, Accountable, Flexible,
Efficient Transportation Equity Act--A Legacy for Users'' (SAFETEA-LU).
Even some environmentalists have admitted there are many needless
delays in the environmental review process for transportation projects.
In April 29, 1999, testimony before the U.S. Senate Environment and
Public Works Committee, Roy Kienitz, then executive director of the
Surface Transportation Policy Project said:
``There is no good reason for federal approval to take years if
there are no major disagreements over the project being
proposed. These delays are the most needless of all and are the
easiest ones to attack.''
The Sierra Club has also recognized this, stating in a 2003 report
concerning the effect of NEPA on transportation projects that ``the
NEPA process is not perfect, and there are methods to improve it.'' One
recommendation which the Sierra Club considered ``the most promising''
was the need for early collaboration among partners and stakeholders in
the planning process. ARTBA wholeheartedly agrees. Issues need to be
vetted as early in the process as possible so they may be resolved or,
in the alternative, bad projects can be abandoned before great amounts
of work are invested in them. Better coordination among the various
agencies and stakeholders involved in the NEPA process is one area
where all sides in this discussion believe positive changes can be
made.
Delay Kills
Delays in the environmental review and approval process for
transportation improvement projects can have tragic consequences.
According to the U.S. DOT, almost 42,000 people are killed each year on
the nation's highways. One person in the U.S. dies from a traffic crash
every 13 minutes and there is one crash-related injury every 10
seconds. Traffic crashes are the leading cause of death in the U.S. for
people ages 6 to 33, and their economic cost is estimated to be $230.6
billion each year in added medical, insurance, and other expenses.
That's about 2.3 percent of the U.S. gross domestic product. To put
this figure in perspective, the total annual public and private health
care expenditures caused by tobacco use have been estimated at $93
billion annually.
Roadway safety is a huge public health crisis! The sad part is
that, according to the U.S. DOT, approximately 15,000 of these annual
deaths are in crashes in which substandard roadway conditions, obsolete
designs or roadside hazards are a factor. These are accidents that we
can prevent through improved transportation infrastructure. According
to FHWA, for every $100 million we spend on highway safety
improvements, we can save over 145 lives over a 10-year period.
Updating and improving the NEPA Process
The area of the NEPA process which would yield the greatest
reduction in project delay is frivolous and malicious litigation which
subverts the NEPA process. This is not to say that all NEPA litigation
needs to be curbed, or that NEPA litigation, as a whole, is a hindrance
on the process. When used properly, litigation resolves disputes
arising from the NEPA process that cannot be dealt with through any
other method. However, when abused, NEPA litigation allows a small
minority of individuals to hijack the NEPA process in an attempt to
perpetually delay projects simply for the sake of delaying them.
This strategy of ``delay for the sake of delay'' has been described
in numerous outlets by plaintiffs in NEPA litigation. One of the more
graphic examples of this mentality is evident in the following 1999
quote from Jay Kardan, Conservation Chairman of the Virginia Chapter of
the Sierra Club regarding opposition to highway projects:
``Facts and reason are much less important than the amount of
noise you can make...Officials who support [highway projects]
should be mercilessly abused, shamed, ridiculed and otherwise
made to suffer pain...The objective should be to cleave a
division through the community so painful that people will
remember it for decades afterward.''
The same mindset was echoed by Roy Kienitz in his aforementioned
Senate testimony:
``In the struggle between proponents and opponents of
a...[highway] project, the best an opponent can hope for is to
delay things until the proponents change their minds or tire of
the fight.''
Also, a ``Grassroots Litigation'' training manual prepared by the
Community Environmental Legal Defense Fund states:
``In an area devoid of endangered species, impacts to waterways
and floodplains, or of federal funding, NEPA may be the only
tool that grassroots groups have [to fight highway projects].''
This approach to NEPA litigation undermines the entire process. It
advocates using NEPA litigation when no legitimate environmental issues
exist to be debated. Instead of allowing communities to make informed
decisions, their power is usurped by small groups of well-funded
project opponents. Worse yet, these project opponents are often based
out of state and not part of the communities they purport to represent.
This type of NEPA litigation was recently illustrated in litigation
involving a highway widening project on U.S. 95 in Las Vegas, Nevada.
As a result of a lawsuit filed years after the final EIS for the
project was completed, ongoing construction of the project was
completely halted for almost one year. During that time, air quality
and public safety improvements were delayed in the affected
communities, the cost of project materials rose by millions of dollars,
work plans were disrupted, and employees were out of jobs temporarily,
and in some cases, permanently.
Using the Las Vegas case as an illustrative example, U.S. 95 is the
primary north-south travel corridor in the northwest region of Las
Vegas. By 1995, the corridor was operating at near capacity during peak
periods and experiencing heavy congestion during certain times of the
day due to the aforementioned population growth and the resulting
demand for highway travel. According the FHWA travel and demand
modeling and anticipated continuation of past growth trends, these
conditions are projected to worsen, with U.S. 95 operating at 50 to 75
percent above capacity by 2020.
FHWA data shows the segment of U.S. 95 that was at issue in this
case services some of the fastest growing neighborhoods in Las Vegas.
An estimated 190,000 vehicles travel through the portion of U.S. 95 to
be widened each day, with peak hour traffic reaching as high as 11,900
vehicles. Currently, traffic congestion slows commuters to one-half of
the 55 mile per hour speed limit on the corridor. Also, between 2000
and 2002 there were 3,535 motor vehicle crashes on one section of U.S.
95 that was scheduled for improvement.
As a result of these factors, a Major Investment Study (MIS) was
begun in 1995 to provide a detailed evaluation of alternative
strategies to address the deteriorating conditions of the area served
by U.S. 95. One of the key improvements recommended by the MIS was to
widen key portions of U.S. 95 from six to ten lanes. The NEPA process
began shortly after the MIS was completed in 1997. A final
Environmental Impact Statement (FEIS) was issued in 1999 with a Record
of Decision (ROD) issued in 2000. Two years later, the Sierra Club
filed suit in federal district court under NEPA claiming that an
epidemiologic study not conducted in the Las Vegas area (rather, it was
conducted in Las Angeles) was enough to re-open the NEPA process and
warrant a supplemental Environmental Impact Statement. At this point
construction had already started on significant portions of the U.S. 95
improvement project. Though the Sierra Club's complaint was dismissed
at the district level, the United States Court of Appeals for the Ninth
Circuit accepted the Sierra Club's appeal of the decision and issued an
injunction halting construction, four years after construction was
already underway, while litigation continued until a settlement was
reached in late June of 2005.
NEPA Litigation Places Environmental Benefits at Risk
The improvements that make up the U.S. 95 widening project are
needed in order to keep pace with the rapid population growth currently
being experienced in the Las Vegas area and prevent the effects of
traffic congestion from worsening. The widening of U.S. 95, once
completed, will lead to enormous environmental, public health and
safety benefits. Once finished, improvement of U.S. 95 will result in a
significant reduction in so-called ``greenhouse gasses.''
Specifically, according to a study by Cambridge Systematics, Inc.,
there will be a 58.8 ton reduction in carbon monoxide emissions, a 54.3
ton reduction in volatile organic compounds (VOCs) and an 87.8 ton
reduction in carbon dioxide emissions between now and the year 2025.
Further, it is estimated that within that time span there will also be
an 87.8 percent reduction in motor fuel usage by U.S. 95 commuters,
which translates to 231,654,731 gallons of motor fuel saved (or 68.9
gallons per commuter over the life of the project). Also, the time Las
Vegas commuters spend stuck in traffic will decrease by an average of
86.5 percent, which for commuters who use U.S. 95 twice per day, would
mean 30 minutes of time saved per day while going through the area to
be improved. Finally, the U.S. 95 improvements are projected to result
in 3,524 fewer total motor vehicle crashes, 14 fewer fatalities, and
1,730 fewer injuries to commuters through 2025. This will undoubtedly
lead to reductions in both health care costs and insurance rates for
Las Vegas area residents (in addition to the emotional benefits of not
having to deal with a friend or relative that has been in an automobile
accident).
The EPA reported in September 2004 ``between 1970 and 2003, that
gross domestic product increased 176 percent, vehicle miles traveled
increased 155 percent, energy consumption increased 45 percent, and
U.S. population grew by 39 percent. During the same time period, total
emissions of the six principal air pollutants (nitrogen dioxide, ozone,
sulfur dioxide, particulate matter, carbon monoxide and lead) dropped
by 51 percent.'' The finding by the EPA that these pollutant levels
have decreased despite increased travel and an increased population
demonstrates there is little connection between any increased travel
which would occur on U.S. 95 as a result of the widening project and a
subsequent increase in pollutant levels, despite Sierra Club arguments
to the contrary.
There are two primary reasons for these decreased pollutant levels.
First, motor vehicle emission levels change with vehicle speed. Once
vehicles reach a speed greater than 15 miles per hour, DOT data shows
that both volatile organic compound (VOC) and carbon monoxide emissions
decline dramatically. The congestion currently experienced on U.S. 95
causes vehicles to either remain at lower speeds or have to stop and
start repeatedly during a commute. The United States Department of
Transportation has acknowledged this, stating ``[e]mission rates are
higher during stop-and-go, congested traffic conditions than free flow
conditions operating at the same speed.'' By widening U.S. 95,
commuters will be able to travel at a level where emissions of key
pollutants will be greatly reduced. Second, pollutant levels continue
to decline as cleaner and more fuel efficient vehicles make up a
greater percent of the nation's motor vehicle fleet. According to the
U.S. DOT, today's average motor vehicle produces 80 to 90 percent less
pollution than it did in 1967. As technology develops even further,
vehicle emissions will continue to go down as automobile usage
increases.
A recent study by the Texas Transportation Institute at Texas A&M
University concluded ``congestion has grown everywhere in areas of all
sizes. Congestion occurs during longer portions of the day and delays
more travelers and goods than ever before.'' Recent estimates show that
congestion on the nation's highways causes 3.5 billion hours of delay,
5.7 billion gallons of wasted fuel, and results in an overall cost to
the U.S. economy of $63.2 billion. Since 1982 the amount of free
flowing traffic within the United States has decreased by over 50
percent. These delays caused by traffic congestion affect not only
commuters, but also first responders--such as police, firefighters,
ambulances, and other services--vital to Las Vegas and all communities
in the United States. Taking this level of congestion and gridlock into
account, it is important that new highway projects and capacity
improvements are allowed to proceed without unnecessary delay.
It should also be noted that the costs of delay associated with
this and other NEPA-related litigation are borne primarily by United
States taxpayers. In the U.S. 95 case, the projects being delayed by
the Sierra Club's lawsuit comprise roughly $85 million worth of work at
the time the injunction to halt construction was granted (in August of
2004). The longer these projects are delayed, the more expensive the
materials needed to complete those projects become. According to the
FHWA, construction materials represented approximately 45 percent of
total costs for federal-aid highway construction contracts over $1
million on the national highway system in 2003. In the case of the U.S.
95 project, this means an estimated $38.25 million worth of
construction materials were involved when construction was halted.
Since then, the Producer Price Index (published by the Bureau of Labor
Statistics) for highway and street construction has risen eight
percent. Thus, equipment costs associated with the U.S. 95 project are
estimated to have risen approximately $3,060,000 during the time of the
injunction. That means taxpayers could pay more than an additional $3
million as a result of the delays caused by this NEPA-related
litigation.
What does Frivolous Litigation Illustrate about the NEPA Process?
The U.S. 95 situation, unfortunately, is only one of the latest
examples in what has become a myriad of NEPA litigation. There are
currently in excess of 1,500 cases which ``define'' NEPA. Another such
example can be found in Utah where the Legacy Highway project has been
delayed for over five years at a cost of nearly $1.5 billion. During
this time, as with U.S. 95 in Nevada, air quality has worsened,
commutes have become longer, and transportation-related public health
and safety has declined.
NEPA has been transformed from a vehicle which once helped to
mitigate the environmental impacts of development to a tool which
enables special interest anti-growth groups to delay needed and
environmentally beneficial transportation infrastructure through the
use of unending litigation.
In the U.S. 95 situation, the project in question had already gone
through extensive environmental review and complied with NEPA's
requirements. However, a single epidemiologic study discovered by U.S.
95 project opponents nearly two years after the fact was enough to
completely halt construction while litigation was underway. This is
unacceptable for a number of reasons. First and foremost, the
government had, as part of the NEPA process, reviewed thousands of
studies and other voluminous evidence of the environmental effects of
the U.S. 95 project. Second, the NEPA process has to have an end point.
Transportation planners, project officials, and state and local
government need some point of finality in the NEPA process in order to
provide enough certainty to allow the project to be planned
effectively. The NEPA process, as illustrated in the U.S. 95 case, is
far too easy to ``re-open'' and cause unnecessary delay to
transportation projects. After a project has completed its NEPA
requirements, the process should not be re-opened except in extreme
circumstances which truly warrant such action.
This brings me to another flaw in the NEPA process. It does not
consider the environmental benefits of fully completed projects. NEPA
should not only be limited to the consideration of environmental
impacts, but expanded to include environmental benefits. As I
previously mentioned, the U.S. 95 project, once completed will yield
significant reductions in mobile source emissions as well as reductions
in traffic congestion and fuel use. This needs to be given proper
weight and consideration by the NEPA process.
Also, the NEPA process needs to consider the environmental impact
of not undertaking federal highway transportation projects. In the U.S.
95 case, part of the NEPA consideration should be the environmental
consequences of continued congestion along the U.S. 95 Las Vegas
corridor. As previously stated, vehicles stuck in congestion yield
significantly greater emissions than vehicles in free-flowing traffic.
The litigation of the U.S. 95 project demonstrated that when court
battles do arise over NEPA, many important issues often go unaddressed.
When the federal government responds to NEPA claims, it is constrained
to only addressing the statutory legal points raised by whichever group
is challenging a project. Greater issues such as the project's
environmental benefits or the potential effects of project delay on
other highway projects and the nation's infrastructure as a whole are
not considered--providing, at best, a lopsided perspective on
environmental impacts. Had ARTBA not submitted a ``friend of the
court'' brief in the U.S. 95 case, the project's environmental and
public health benefits would have gone completely unaddressed in
appellate litigation. Also, ARTBA was the only party to raise the
question of what effect delaying the U.S. 95 project would have on the
nation's highway system as a whole. Both of these issues can and should
have been considered by the main parties in the U.S. 95 litigation,
rather than having ARTBA raise them as a non-party.
NEPA should not operate in a vacuum in this way. When the
environmental impacts of a project are considered, its benefits must be
considered as well. Also, the term ``environment'' cannot be narrowly
defined as the impact on the air quality of a region without also
considering appropriate public health concerns. These concerns, which
all factor into the state of an area's environment, should include
other consideration such as traffic congestion. Also, related public
heath issues, such as the stress caused by lengthy commutes and traffic
impact on first-responders, should be part of any analysis.
ARTBA's Recommendations for Changing the NEPA Process
As you can see, Madame Chairwoman, the NEPA process is in need of
fine-tuning. For over a decade, reform to the environmental review
process has been a top ARTBA priority. Indeed, ARTBA is extremely
appreciative of the formation of this task force and its goal of taking
a hard look at NEPA and its effects on local environments and
economies.
The goal of these efforts is not--as some have suggested--to
undermine the environmental review process. Rather, it is to coordinate
the process in order to more effectively deal with the transportation
needs and congestion issues facing the nation. If handled
appropriately, improving the delivery of transportation projects would
increase the efficiency of the transportation network, and ensure the
traveling public receives the full benefit of the user fee-financed
transportation system. We are not seeking changes that are outcome
determinative; we are seeking process improvements that would generate
quality decisions in a more timely manner.
Particular changes to the NEPA process ARTBA recommends are:
A set time limit on project related NEPA lawsuits. The
recently enacted ``Safe, Accountable, Flexible and Efficient
Transportation Equity Act--A Legacy for Users'' includes a provision
setting a 180-day time limit for lawsuits involving highway projects.
Consideration of the environmental benefits of proposed
projects as opposed to just their impacts. Also, the environmental
consequences of not undertaking a project should also be considered.
NEPA litigation should be limited to only those issues
that have been fully raised and discussed during the public comment
period for a project. This will help insure that litigation over
projects is a last resort, rather than a first stop for opponents of a
project.
Establishment of a dispute resolution process as part of
NEPA. This would further ensure that only those issues which are truly
not resolvable proceed to litigation.
In compliance with President Bush's executive order on
environmental streamlining, the NEPA review process must be shortened
and coordinated among the various federal agencies that take part in
it.
Where possible, duplicative review and analysis should be
eliminated. Studies done as part of the transportation planning process
should be acceptable in the NEPA review process and vice-versa, as
proposed by the Bush Administration.
Once again, Madame Chairwoman, ARTBA thanks you not only for the
opportunity to participate in this hearing, but also for the
establishment and work of this task force. I would be happy to answer
any questions you or the other members may have.
______
Response to questions submitted for the record by Nick Goldstein,
Staff Attorney, American Road and Transportation Builders Association
1. You cite a number of environmental benefits that are jeopardized by
NEPA litigation. It seems as though the ``impact'' are the only
focus when an agency reviews a proposed project. Shouldn't the
benefits of that proposed project be given equal weight?
Certainly. The NEPA process should be updated so that it considers
the environmental and public health benefits of a project as well as
the potentially problematic impacts. Such an approach would provide a
more complete and honest discussion of the project involved and help
ensure regulators are making balanced decisions. For example, in the
case of the U.S. 95 project, as documented in my written testimony, the
following benefits are anticipated upon the project's completion
through the year 2025:
a 58.8 ton reduction in carbon monoxide emissions;
a 54.3 ton reduction in volatile organic compounds
(VOCs);
an 87.8 ton reduction in carbon dioxide emissions;
U.S. 95 commuters will use 87.8 percent less motor fuel
over 25 years than they would under a ``no build'' option, which
translates to 231,654,731 gallons of motor fuel saved (or 68.9 gallons
per commuter);
Las Vegas U.S. 95 commuters will spend 86 percent less
time stuck in traffic about 30 minutes saved for the twice a day
commute through the area to be improved;
3,524 fewer total motor vehicle crashes;
1,730 fewer injuries to commuters; and most importantly;
14 fewer fatalities.
Under existing NEPA requirements, these clear enhancements to the
natural environment, health, safety and quality of life of Nevadans are
not considered. To ensure a comprehensive NEPA process, the benefits of
transportation improvement projects should be given equal consideration
when the environmental impacts are discussed during the EIS process.
Also, the environmental impact of not going forward with a proposed
project should be discussed as well. With U.S. 95, this would mean
weighing the effects of continuing the present state of congestion, and
the resulting environmental and public health harms. To put this into
perspective, in the case of U.S. 95, residents of Las Vegas are
struggling to keep up with a city that has experienced some of the
fastest recent population growth anywhere in the United States. Between
1970 and 1996, the Las Vegas population has grown over 300 percent.
The section of U.S. 95 to be widened is in one of the most
congested areas of Las Vegas, if not the entire country. If nothing is
done, U.S. 95 will be operating at 50 to 75 percent above its original
design capacity by 2020. An estimated 190,000 vehicles travel through
the portion of U.S. 95 to be widened each day, with peak hour traffic
reaching as high as 11,900 vehicles. Currently, traffic congestion
slows commuters to one-half of the 55 mile per hour speed limit on the
corridor. Studies have shown that motor vehicles traveling at speeds
under 55 miles per hour produce greater levels of vehicle emissions. As
such, not proceeding with the project would lead to dramatically
increased motor emissions, Also, between 2000 and 2002 there were 3,535
motor vehicle crashes on one section of U.S. 95. According to the Texas
Transportation Institute's 2005 Urban Mobility Report, in the year 2002
alone, traffic congestion cost Las Vegas area residents and businesses
$380 million and resulted in the additional consumption of 14 million
gallons of motor fuel. All of these factors need to be considered in
the NEPA process as a consequence of not going forward with the U.S. 95
project.
Finally, a step which would help discussions of projects reviewed
under NEPA to be more complete would be to guarantee a ``spot at the
table'' for non-public agency project proponents as well as project
opponents. This should apply to litigation as well, where non-public
agency project proponents should be granted legal standing in the same
manner as organizations which oppose projects. A major reason that NEPA
discussions center mainly on impacts is that those in favor of proposed
projects, be they community members or developers, are often not
allowed to participate once a proposal is challenged. This should be
changed to make discussions more complete.
The goal of NEPA has always been to enable communities to make
informed decisions regarding public projects. It is important to note
that the ``public interest'' is not just served by groups who self-
proclaim themselves as its guardian. It is also served by allowing the
many others in the affected community who look to transportation
improvements as an essential component of their public health and
quality of life to be heard. By providing the public with all sides of
the debate, instead of limiting discussion to one side of an issue,
NEPA will be better equipped to meet this goal.
______
Miss McMorris. Mr. Harwood.
STATEMENT OF ALAN HARWOOD, EDAW, INC.
Mr. Harwood. Madam Chair, members of the Task Force thank
you for the invitation to appear in today's hearing.
The firm that I represent, EDAW, Incorporated, is a leading
environmental consulting firm. We pioneered the blending of
environmental planning and sustainable development three
decades before environmental considerings were mandated under
NEPA. Our collective body of work has included literally
hundreds of NEPA projects for nearly every Federal agency.
My testimony here today reflects more than 20 years of
experience as a NEPA practitioner and the collective input of
my partners across the country.
Let me start by offering just a couple of observations
about the NEPA process.
The presence of NEPA has had a profound and positive effect
on the Nation's natural and built environment. When implemented
correctly, the formalized nature of the NEPA process
establishes a standard framework for sound decisionmaking. But
NEPA is not perfect. It sometimes suffers from the three Cs. It
can be costly, cumbersome and confusing.
And it is my understanding that we are here today as a
congressional effort to update and improve NEPA as a policy
tool, but not eliminate it. Similarly, NEPA requirements should
be used to improve projects but not stop them. In both cases,
the proper balance is usually best achieved in the practical
middle ground rather than either extreme.
It is from this balanced perspective that I offer seven
suggestions for improving NEPA. First, the threat of litigation
under NEPA is entirely too pervasive. Judicial review should
not be the primary mechanism for ensuring NEPA compliance. So
to minimize legal maneuvering, CEQ, as an independent agency
with NEPA expertise, should be empowered to resolve most NEPA
disputes administratively prior to court action and a time
limit for filing litigation should be established, much as it
is done in California.
Second, environmental considerations must never be ignored
and should be a central factor to help select project
alternatives. But the mandate to fully evaluate alternatives
should be relaxed in certain cases, subject to oversight by CEQ
to allow for a reduced level of alternatives analysis,
particularly when a given alternative fails to meet the stated
purpose and need.
Third, the range of environmental considerations should be
comprehensive and holistic. The NEPA should focus on
fundamental environmental issues as defined by CEQ and should
not be used a substitute for a design review process or other
process that is under another law.
Fourth, public notification and public review are integral
components of NEPA and must be protected. If guidelines
established by CEQ are met, the provisions for certain process
milestones, including required notification and review periods
could be streamlined to increase agency flexibility and improve
efficiency.
Fifth, one of the most useful outcomes of the NEPA process
is the identification and development of mitigation measures.
Unfortunately, implementation of recommended mitigation
measures is voluntary. There should be formal enforcement
measures and ongoing compliance oversight under CEQ's purview
to ensure agency implementation of specified mitigation
commitments that are integral to the environmental approval
process.
Sixth, the qualifying requirements for categoric exclusions
vary widely among different agencies. In coordination with CEQ,
the exemptions available for proposed actions under categorical
exclusion guidelines should be clarified and made more
consistent and documentation is required for--should be reduced
for categoric excluded projects.
And finally, the decentralization of NEPA works well under
many circumstances, but depends greatly on the NEPA expertise
of individual Federal agencies and often individual Federal
employees.
It is our opinion that CEQ should be strengthened,
expanded, and funded as an integral independent agency with
clear authority to simplify and streamline environmental
procedures, provide implementation guidance and oversight,
coordinate NEPA training and serve as administrative arbiter or
mediator of NEPA issues and disputes so that the threat of
judicial involvement is greatly minimized.
In closing, NEPA's original purpose to ensure the
consideration of environmental values in Federal actions
continues to be a noble and worthy goal. No changes that would
diminish the law should be contemplated. However, there are
several procedures and process requirements that should be
refined and streamlined to provide efficiency, clarity, and
cost effectiveness. Such modifications would reflect the
Nation's environmental maturation over the last 35 years.
There is now broad support for environmental quality. And
there have been many environmental protection successes over
the last three decades that have made our great Nation and the
world a better place to live and a better legacy for future
generations.
We have learned that it is far less costly to plan with
environmental considerations than to repair our damaged air,
water and land. We should not be distracted by the self-serving
arguments of narrow special interests. The fundamental issues
is not the battle between environmental protection and economic
development. It is the inherent conflict between long-term and
short-term decisionmaking. A longer, broader perspective
realizes that what is good for the environment is also good for
the economy, and by definition, good for people.
Thank you for the opportunity to testify. I welcome any
questions.
[The prepared statement of Mr. Harwood follows:]
Statement of Alan Harwood, Principal and Vice President,
EDAW, Inc.
Introduction
Madame Chairwoman and Members of the Task Force, thank you for the
invitation to participate in today's hearing. It is a privilege and an
honor to appear before this esteemed panel to address this most
important issue. I appreciate the opportunity to discuss ways to update
and improve the National Environmental Policy Act (NEPA).
The firm I represent, EDAW, Inc., is a leading environmental
consulting firm. Our name comes from the initials of the four founding
partners who began a legacy of environmental planning and sustainable
development 30 years before environmental considerations were mandated
under NEPA. Today, more than 35 years after NEPA, my firm continues to
seek the appropriate balance between development and conservation, or
to state it more broadly, we continue to balance the interests of man
and nature.
Since the inception of NEPA, we have been involved in projects
across the country, including the Pacific Northwest, the Rocky
Mountains, the Mississippi River, the Gulf Coast, the Florida
Everglades, and, of course, here in our Nation's Capital. We have
worked on new federal facilities and historic buildings with the
General Services Administration, land exchange agreements and open
space enhancements with the National Park Service, proposed riverboat
casinos and waterfront development with the Army Corps of Engineers,
water supply infrastructure with the Bureau of Land Management, target
ranges and installation improvements with the Department of Defense,
restoration projects for the Federal Emergency Management Agency, and
many perimeter security projects in coordination with the Department of
Homeland Security. Our current environmental projects include the
Martin Luther King Memorial, the Denver Federal Center, a flood control
levee in California, the Pentagon master plan, and a baseball stadium
for the Washington Nationals.
My testimony reflects more than 20 years of experience evaluating,
identifying and mitigating impacts for scores of proposed actions as a
NEPA practitioner. Overwhelmingly, my specific environmental analysis
work has involved land development projects. Land development projects,
including federal buildings or private facilities seeking regulatory
approvals, are different than other federal actions relating to
national programs, mineral extraction, or resource management. Land
development typically occurs in high-profile urban locations and
usually is politically charged with extensive public scrutiny and
controversy. This background has led me to the following observations
about the NEPA process.
Observations on NEPA
It has been several decades since the NEPA legislation was drafted
and many years since the 40 Most Frequently Asked Questions were
circulated by the Council on Environmental Quality (CEQ). Since that
time, current practices and agency and public expectations have greatly
evolved. For some agencies, case law now provides seemingly more
guidance than the original legislation and implementing guidelines.
Therefore, in my opinion, it is apparent that this current review and
update of NEPA is warranted and overdue. Based on my experience, I
offer the following observations about NEPA:
1. The ``presence'' of NEPA has had a profound and positive effect
on the nation's natural and built environment. This is because the
worst ideas, the most egregious projects, never see the light of day as
formal proposals, and questionable projects are heavily screened,
reviewed, and subject to public scrutiny. There is now widespread
acknowledgment that environmental considerations play a significant
role in the acceptance of a project.
2. When implemented correctly, the formalized nature of the NEPA
process establishes a standard framework for sound decision-making.
Several features of the legislation are particularly noteworthy:
a. NEPA's documentation requirement facilitates clarity of
purpose and helps define proposals. Even a simple written
description of a proposed project improves communication and
provides a common understanding of a project and potential
issues.
b. NEPA's public involvement procedures ensure input from
affected communities. Public engagement can help identify
potential issues, convey shared or conflicting concerns,
explain likely outcomes, and communicate recommended actions.
c. The thorough analysis of potential consequences can help
resolve technical questions. Accurate definition of potential
impacts can help determine appropriate and creative mitigation
measures to improve a project and benefit the public by
avoiding, reducing, or offsetting identified impacts.
3. NEPA is not perfect. It sometimes suffers from the three C's:
Cumbersome, Confusing, and Costly.
4. The NEPA process draws out project opponents rather than
supporters. Scoping meetings and public review hearings tend to
encourage opposition to a project--usually from the general public but
sometimes from a variety of special interests. Hearing adverse
reactions to projects is useful, but so are positive responses.
Suggestions for NEPA
My observations for the Task Force are borne from my experience as
a NEPA practitioner and shaped by the unique challenges inherent in
land use planning and development. My suggestions to the Task Force are
also based on my professional expertise and the collective input of my
EDAW partners across the country.
It is my understanding that we are here today as part of a
Congressional effort to update and improve NEPA as a policy tool--but
not eliminate it. Similarly, NEPA requirements should be used to
improve projects--but not stop them. In both cases, the proper balance
is usually best achieved in the practical middle ground rather than
either extreme.
It is from this balanced perspective that I offer seven suggestions
for improving NEPA:
1. The threat of litigation under NEPA is entirely too pervasive.
Too often the NEPA process is used as a threat by community groups to
fight or block projects they don't like--even if there is widespread
but less vocal support for the project. Public outcry should be
eliminated as a determinant for a decision on whether an EA or an EIS
is the appropriate vehicle for NEPA compliance, and judicial review
should not be the primary mechanism for ensuring NEPA compliance. To
minimize legal maneuvering, CEQ, as an independent agency with NEPA
expertise, should be empowered to resolve most NEPA disputes
administratively prior to court action, and a time limit for filing
litigation should be established.
2. Environmental considerations must never be ignored and should
be essential factors to help select project alternatives, including
alternative programs or sites. But NEPA should not force the equal
inclusion of alternatives throughout the analysis process regardless of
feasibility. Allowing a build/no build format would be preferable to
analyzing an alternative location for a private-sector project that
will not proceed if the preferred alternative is not approved. The
mandate to fully evaluate alternatives should be relaxed in certain
cases, subject to oversight by CEQ, to allow for a reduced level of
alternatives analysis, particularly when a given alternative fails to
meet the stated purpose and need.
A major public facility was proposed for a site extending from
the edge of downtown into an historic minority community. NEPA required
the full analysis of an alternative location, which project opponents
quickly adopted and rallied around. The result was misleading to
residents and confusing for elected officials. An EIS should not become
a vehicle for giving the public false hope.
3. The range of environmental considerations should be
comprehensive and holistic. A hard look at a wide variety of natural
and man-made environmental issues is integral to NEPA. Subjective
resources such as visual quality should be evaluated objectively
through features such as height, density, and mass rather than window
treatments, balconies, or material colors. NEPA should focus on
fundamental environmental issues, as defined by CEQ, and should not be
used as a substitute for a design review process.
A prominent memorial has been proposed for a site on the
National Mall. Some review agencies, while supporting the concept and
basic components, have taken issue with some of the design details.
NEPA requires an evaluation of alternatives, yet an EA should focus on
environmental considerations and should not be used to debate aesthetic
preferences.
4. Public notification and public review are integral components
of NEPA and must be protected. However, for many relatively simple
public projects, the mandatory timeframes under NEPA can conflict with
the existing approval processes of other agencies, disrupt project
schedules, and cause unnecessary delays. If guidelines established by
CEQ are met, the provisions for certain process milestones, including
required notification and review periods, should be streamlined to
increase agency flexibility and improve efficiency.
5. One of the most useful outcomes of the NEPA process is the
identification and development of recommended mitigation measures.
Project modifications, features, or even off-site benefits that avoid,
minimize, or compensate for identified environmental impacts can be
practical, cost-effective solutions to challenging issues.
Unfortunately, implementation of recommended mitigation measures is
voluntary. There should be formal enforcement measures and ongoing
compliance oversight under CEQ's purview to ensure agency
implementation of specified mitigation commitments that are integral to
the environmental approval process.
A federal headquarters building was planned adjacent to a
sensitive natural area. The stream and steep slopes with mature trees
was identified as a resource protection area and became the centerpiece
of the building design (and helping the design win several awards). For
reasons that are not entirely clear, during construction the trees were
removed and the stream was stabilized with rip-rap rather than
preserved. The NEPA process should not be used to secure project
approval without commitments to fundamental mitigation measures.
6. The qualification requirements for Categorical Exclusions vary
widely among different federal agencies. In some cases, renovated
buildings get more scrutiny than new construction. In coordination with
CEQ, the exemptions available for proposed actions under Categorical
Exclusion guidelines should be clarified and made more consistent, and
documentation requirements should be reduced for categorically excluded
projects.
7. The decentralization of NEPA works well under many
circumstances but depends greatly on the NEPA expertise of individual
federal agencies and, often, individual federal employees. To overcome
the variable quality of NEPA awareness and practice in different
federal agencies, a central organization with the authority to provide
clarification and resolve differences of opinions relating to NEPA is
needed. The CEQ should be strengthened, expanded, and funded as an
integral, independent agency with the clear authority to simplify and
streamline environmental procedures, provide implementation guidance
and oversight, coordinate NEPA training, and serve as administrative
arbiters of NEPA issues and disputes so that the threat of judicial
involvement is greatly minimized.
Summary
In closing, NEPA's original purpose to ensure the consideration of
environmental values in federal actions continues to be a noble and
worthy goal, and one that is generally implemented. No changes that
would diminish the law should be contemplated. However, there are
several procedures and process requirements that should be refined and
streamlined to provide efficiency, clarity, and cost-effectiveness.
Such modifications would reflect the nation's environmental
maturation over the last 35 years. There is now broad acceptance of
environmental quality as a worthwhile pursuit for local and national
governments. Many environmental protection successes that have occurred
during the last three decades have made our great nation and the world
a better place to live and a better legacy for future generations. By
improving and strengthening NEPA, we can ensure that these benefits
will continue. We have learned that it is far less costly to plan with
environmental considerations, than to repair our damaged air, water,
and land.
We should not be distracted by the self-serving arguments of narrow
special interests. The fundamental issue is not the battle between
environmental protection and economic development; it is the inherent
conflict between long-term and short-term decision-making. A longer,
broader perspective realizes that what is good for the environment is
also good for the economy--and by definition, good for people.
Thank you for the opportunity to testify. I will be glad to respond
to questions.
______
STATEMENT OF JOHN MARTIN, PATTON BOGGS LLP
Mr. Martin. Thank you, Madam Chairwoman. First I would like
to thank the Task Force and all of the staff people who have
worked so hard at this effort. And I would like to, if I may,
echo one of the themes I think you see from literally all of
the witnesses that are appearing today and all the witnesses
that I am aware of that have appeared before the Task Force
before.
And that is that we all embrace the policies that underlie
NEPA, the original policies, notably two policies: first,
public participation; and second, conveying information on
environmental consequences before a Federal decisionmaker
actually makes that decision.
Those are policies that I embrace--my client, Devon Energy
Corporation, embraces. And I have to say that those folks that
I have represented over the course of 25 years of environmental
litigation embrace those policies as well.
I am inclined to believe that NEPA, like any 30-year-old
statute, is a statute that can be improved. It is not perfect.
It is something that I think we can in fact improve upon.
Before I get into some of the details, some of the suggestions
that I have made, I would like to, if I may, just talk briefly
about context. I represent oil and gas companies, many oil and
gas companies who are involved now in development of natural
gas resources through Federal leases in the western United
States.
In the ordinary course what we see is 2 levels of NEPA
review:
First, we see a broad-based programmatic EIS. This is a
lengthy document. And no, it is not a document that was the
sort of document that was originally projected when the statute
was passed or when the regulations were promulgated in the
1970s. Back then, people were talking about in the regulations
an EIS of perhaps 150 pages, a maximum of 300 pages. That is
not what is happening today.
The EISs with which I am most familiar are multiple
thousands of pages. One that I am familiar with is four
volumes. The administrative record comprises 100,000 pages.
The duration for this, again, is not what we originally
thought. Back in the 1970s, CEQ was projecting that the
duration to conduct an EIS was approximately 12 months in a
most complex EIS. These days we are talking about an average of
between 24 and 36 months for the EISs with which I am familiar.
So ladies and gentlemen, the first level of NEPA review
that we are dealing with as a general proposition is an EIS
that is programmatic in nature. It is multiple thousands of
pages. It has appendices. It takes a long duration. In fact, it
is expensive. We expend a lot of resources on it.
The second level is for individual projects. There, in the
ordinary course, what we do is we tier an environmental
assessment to that EIS. The environmental assessment is not
that 10-page document that was originally projected in the CEQ
regulations. No. In most instances, it is much longer. An EA I
am familiar with that just came out in this industry a few
months ago was 150 pages in length and consumed over 6 months'
time to create.
So you can see that this is a much more involved process, I
think, than what we originally anticipated when this statute
was passed. And I do believe that there are things that we can
do to strengthen the process to make it a simpler, more
effective process, one that decisionmakers will be able to make
greater use of.
First, in terms of alternatives analysis. I think it would
be useful if we could clarify to agencies that they have the
clear ability to define and limit the number of alternatives
that are analyzed.
Right now in the CEQ regulations and, frankly, in the case
law, there is the suggestion that agencies need to go outside
that own jurisdiction and consider alternatives that perhaps
the agencies recognized are not at all useful and ones they
would never pursue.
Second, in the vein of augmenting the public participation
at a point in time when it is most effective, I would recommend
that we require exhaustion of administrative remedies. The
point is that if someone objects to what the agency is doing,
properly, that person, should invest herself in the process
early and tell the agency, ``I want you to consider this, I
want you to evaluate that, I want you to engage in this
process,'' at a point in time when the agency can actually
respond and include it in the EIS or the EA.
Third, the statute of limitations. To echo Mr. Goldstein's
concern, I would like to see a 180-day statute of limitations
generally. This is not an abstract concern for me. Our clients
invest literally millions of dollars in plans of development.
And what happens under the current regime is they have to
concern themselves with the challenge that may occur as long as
6 years after the particular decision is made. And in some
instances, it is after the company has invested many millions
of dollars in the lease, in the development of that prospect.
That is inappropriate. And I don't think it is unfair to ask
that folks challenge it within a reasonable period of time.
Fourth, I think it ought to be clear that the proponents of
particular projects should have the right to intervene and
should clearly have standing. As it turns out under the current
regime, particularly in the Ninth Circuit, it is not clear that
we with economic interests--the proponents of the particular
program--have standing or the capacity to intervene.
And if I might summarize. And then finally I would ask that
remedies be clarified so that judges have greater direction in
terms of what they proscribe by way of remedies and litigation.
Thanks again for the opportunity to testify.
Miss McMorris. Thank you very much.
[The prepared statement of Mr. Martin follows:]
Statement of John C. Martin, Patton Boggs LLP
My name is John Martin, and I am an attorney who has worked in the
field of environmental litigation for more than 25 years. Over the
years, I have represented clients on many matters involving the
National Environmental Policy Act (NEPA), and have published and taught
on NEPA issues. I currently represent a number of companies whose
ability to undertake energy projects has been delayed or thwarted by
the application of NEPA. I would like to take this opportunity to share
my thoughts on NEPA, and how revisions to the legislation could
decrease uncertainty associated with the NEPA process, while preserving
the statute's capacity to inform decision-makers of environmental
issues before permanent commitments of resources are made. While many
of my comments reflect concerns raised by my clients in energy-related
fields, the issues raised here are equally relevant to NEPA's
application in other contexts.
NEPA was intended to further the laudable goal that agencies take
into consideration the anticipated environmental impacts of their
actions before making decisions. In addition, the public was to be
given the opportunity to provide their comments on the environmental
impacts associated with particular projects. Our clients support these
policies: we believe government decision-makers should be informed of
environmental impacts associated with their choices and that the public
should be informed of, and permitted to comment on, those impacts as
well.
Unfortunately, over the years, ambiguities and gaps in the initial
NEPA statute, inconsistencies in case law, and incomplete and confusing
agency regulations have produced the unintended consequences that now
overshadow NEPA's original goals. For many, NEPA has come to mean years
of delay and uncertainty as well as the imposition of huge costs on the
government and private parties to no effective end. Rather than
focusing on efforts tailored to best address realistic environmental
concerns, government agencies are spending vast amounts of time and
money to attempt to anticipate and respond in advance to every
conceivable litigation attack a potential plaintiff might make. In many
instances, public funds that should be going toward fulfilling
substantive agency mandates are instead going toward bulletproofing
EISs and defending lawsuits. Instead of processing permits, agencies
work on litigation strategies. Instead of taking actions that protect
the environment, agencies engage in ``paralysis through analysis.''
Once litigation sets in, projects can become mired in such lengthy
disputes that they are no longer viable. Even before that happens, the
huge uncertainties surrounding the Government's response, the vagaries
of litigation and the timing of a final answer, mean that it may simply
be infeasible to direct resources to a project where NEPA is involved.
All of this creates an artificial and inefficient allocation of
resources, with large amounts of time and money going to litigation
expenses and to the study of the potential environmental impacts of
paths that will never be taken.
In addition, of course, the uncertainty and the inordinate delays
created by NEPA lawsuits often subject project proponents as well as
federal, state and local governments to vast financial losses. For
example, the threat and reality of NEPA litigation has repeatedly given
rise to needless delays--often for several years--in development of the
nation's critical energy resources, including oil and gas. Courts may
enjoin project activities pending resolution of a lawsuit, which can
take years. Even if they do not, the uncertainty arising from the
litigation may make it impossible to commit necessary investments and
the window of opportunity for the project may be lost.
These procedural impediments directly hurt not only the companies
that would develop the resources at issue but the public at large.
Delays and uncertainty mean lost jobs. In addition, federal, state and
local governments count on the income from royalties and production
taxes to fund their schools, roads and other needed infrastructure.
Moreover, in some cases, NEPA litigation gives rise to a cruel irony:
NEPA can cause, rather than cure, environmental harm.
For all these reasons, substantial changes to NEPA are long
overdue. My suggested legislative amendments fall into the following
four over-arching categories:
Clarify and revise the scope of agencies' NEPA
obligations;
Impose requirements on NEPA plaintiffs to discourage
frivolous lawsuits;
Permit increased participation in litigation by project
proponents and other interested parties;
Provide courts with more guidance;
Specific suggestions in each of these areas are presented below.
I. Clarify and Revise the Scope of Agencies' NEPA Obligations.
A. Clarify the Alternatives an Agency Must Analyze.
NEPA requires an Environmental Impact Statement (``EIS'') to
consider ``alternatives to the proposed action.'' 1 The
statute itself, however, provides little guidance on how an agency must
fulfill this ``alternatives'' analysis. The 1978 regulations
promulgated by the Council on Environmental Quality (``CEQ'') emphasize
the importance of the alternatives analysis to an EIS, denoting it
``the heart of an [EIS].'' 2 The CEQ regulations require
agencies to ``include reasonable alternatives not within the
jurisdiction of the lead agency'' as well as the ``no action''
alternative. 3 These regulations also require the agency to
describe the ``underlying purpose and need'' that the alternatives and
proposed action must meet. 4 Beyond these very general
directives, however, the CEQ regulations provide minimal instruction as
to how this analysis must proceed.
---------------------------------------------------------------------------
\1\ 42 U.S.C. Sec. 4332(C)(iii).
\2\ 40 C.F.R. Sec. 1502.14.
\3\ 40 C.F.R. Sec. 1502.14(c), (d).
\4\ 40 C.F.R. Sec. 1502.13.
---------------------------------------------------------------------------
Unfortunately, the case law that has developed over the years does
not resolve this uncertainty. The jurisprudence regarding the duty of
agencies to consider alternatives is dominated by two court opinions
whose interpretations sometimes lead to inconsistent results. The first
case, Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827
(D.C. Cir. 1972), adopted a ``rule of reason'' and took a broad view of
the range of alternatives that should be discussed. In that case,
alternatives outside an agency's scope of statutory authority that
require legislation or administrative action were still considered
viable alternatives. Moreover, even an alternative that was a partial
solution to the issue was to be considered. Nevertheless, ``remote'' or
``speculative'' alternatives did not need to be discussed.
In 1978, the Supreme Court addressed NEPA alternatives analysis in
Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, 435 U.S. 519 (1978). There the Court affirmed application of
the ``rule of reason'' but seemed to eliminate from consideration most
alternatives that had not yet been studied. Vermont Yankee directed
that an agency need not consider an infinite range of alternatives, but
it must consider a range of alternatives that are reasonable and
feasible.
Lower courts interpreting these cases and subsequent precedent have
reached a range of conclusions about the breadth of alternatives that
need to be considered. 5 Given the confusion over how far
agencies must go in examining alternatives that have no realistic
likelihood of being selected, some legislative constraints should be
placed on what alternatives an agency must consider. For example,
amendments to NEPA should make clear that when the proponent of a
project would never employ a particular technology or construct a
project on a particular location, the ``alternative'' should not be
evaluated in detail. Similarly, legislation should confirm that when an
alternative would not fulfill the purpose of and need for the project,
as articulated by the agency, it need not be considered in detail.
Rather, agencies should be vested with express statutory authority to
decline to consider alternatives that they consider not ``reasonable''
or ``realistic.'' Finally, where an alternative would be outside the
jurisdiction of the agency, that agency should not be required to
evaluate that alternative.
---------------------------------------------------------------------------
\5\ Compare Citizens Against Burlington, Inc. v. Busey, 938 F.2d
190, 199 (D.C. Cir. 1991) (narrowly construing the alternatives
requirement and holding that ``[a]n agency cannot redefine its goals of
the proposal that arouses the call for action; it must evaluate
alternative ways of achieving its goals, shaped by the application at
issue and by the function that the agency plays in the decisional
process) with Van Abbema v. Fornell, 807 F.2d 633, 638 (7th Cir. 1986)
(broadly construing the alternatives analysis and finding: ``the
evaluation of ``alternatives'' mandated by NEPA is to be an evaluation
of alternative means to accomplish the general goal of an action; it is
not an evaluation of the alternative means by which a particular
applicant can reach his goals.'').
---------------------------------------------------------------------------
B. Provide for Short Form EISs.
In many instances, agency decision-makers receive little benefit
from a very detailed analysis of the environmental impacts associated
with a project that, for example, has been analyzed in detail before
but arguably requires a ``supplemental'' EIS in light of some new
information or occurrence, or is an activity with limited or very
predictable impacts, such as an activity that is repeated over and over
again in essentially the same fashion. In cases of this sort, the
agency should have express authority to (i) shorten comment periods,
(ii) avoid any repetition of pre-existing analyses, (iii) limit the
text that the agency otherwise would prepare, and (iv) respond, in a
summary fashion, to comments on the EIS.
C. Impose Timelines and Cost Caps on NEPA Documentation.
In March 1981, the CEQ published the Forty Most Asked Questions
Concerning CEQ's National Environmental Policy Act Regulations.
6 In response to the question of how long the NEPA process
should take to complete, the CEQ responded that ``under the new NEPA
regulations even large complex energy projects would require only about
12 months for the completion of the entire EIS process'' but that
program EISs may require a greater period of time. 7 CEQ
also noted that when only an EA is necessary, ``the NEPA process should
take no more than 3 months, and in many cases substantially less, as
part of the normal analysis and approval process for the action.''
8
---------------------------------------------------------------------------
\6\ See 46 Fed. Reg. 18026 (March 16, 1981).
\7\ Id. (question 35).
\8\ Id.
---------------------------------------------------------------------------
Today, contrary to CEQ's anticipated timelines, EISs can take years
to complete and cost millions. Similarly, Environmental Assessments
(EAs) have begun to look more like EISs, costing more and taking more
time. Congress should consider granting agencies specific authority to
set timelines and spending limits for specific NEPA documents and link
them to the level of decision being made (e.g., mandate a six-month
deadline for particular categories of EISs). Likewise, Congress should
make clear that agencies have wide latitude in how they document their
NEPA findings and should consider approving short-form or ``checklist''
formats for particular types of NEPA analyses.
D. Make Use of Adaptive Management Techniques.
Currently, CEQ regulations arguably require agencies to identify
and fill in information gaps when there is incomplete information
relevant to reasonably foreseeable significant adverse impacts and the
overall cost of obtaining the information is not exorbitant.
9 This requirement to fill in information gaps is often
quite expensive and time consuming. Agencies instead should be
expressly permitted the prerogative to develop NEPA documentation based
on current information, and to use rigorous adaptive management
techniques (i) to adopt more targeted mitigation measures as needed,
(ii) to recommend Best Management Practices, and (iii) to generate a
Supplemental EIS when there is significant new information on
environmental issues that bear on the action.
---------------------------------------------------------------------------
\9\ 40 C.F.R. Sec. 1502.22.
---------------------------------------------------------------------------
E. Expand the Use of Categorical Exclusions.
Categorical exclusions provide for expedited review when a proposed
action is of a type that is likely to impose little or no environmental
impact. These projects do not escape review. Instead, a categorical
exclusion requires agencies to confirm that the impacts associated with
a proposed action are indeed extremely limited. We support prior
comments that have requested broader authorization to employ
categorical exclusions from the statute. Examples of appropriate
additional categorical exclusions include:
existing projects that simply require a renewal permit
(suggested by Steve Smith of Texas Mining & Reclamation Association at
the July 27, 2005 hearing);
activities that are non-significant or temporary
(suggested by Steve Smith of Texas Mining & Reclamation Association at
the July 27, 2005 hearing);
completed or proposed mitigation actions that are
sufficient to avoid significant impacts (suggested by Steve Smith of
Texas Mining & Reclamation Association at the July 27, 2005 hearing);
and
approval of on-lease linear facilities when they are
placed in existing corridors or areas of prior disturbance (suggested
by Dave Brown of BP America at the August 1, 2005 hearing).
Agencies should have the flexibility to utilize categorical
exclusions in these and other appropriate situations: an agency's
expertise should be applied to discern situations where full-fledged
analysis would only repeat work already done on comparable projects or
where a project is unlikely to give rise to significant impacts. In
these situations, categorical exclusions should be employed. Providing
agencies with this flexibility will allow the United States to avoid
unnecessary and duplicative agency efforts that do not benefit the
environment and waste valuable resources.
F. Clarify that Agencies Need Not Examine Impacts That Are Not
Reasonably Foreseeable.
Some interpretations of the existing NEPA regulatory scheme suggest
that when conducting an EIS, an agency must predict all potential
impacts of events, including, for example, terrorist attacks, where the
nature, and even the likelihood, of those events is completely
unforeseeable. NEPA should not require agencies to predict
unpredictable events or quantify unquantifiable risks, especially where
there is no causal nexus between the project and the event in question.
Where courts are permitted to impose these fundamentally impossible
tasks on agencies, NEPA becomes nothing more than a convenient veto for
any project opponent willing to initiate a lawsuit. The statute should
make clear that only reasonably foreseeable impacts, with a close
causal relationship to the action in question, need be examined, and
should set guidelines for what constitutes ``reasonable
foreseeability'' in this context.
II. Impose Requirements to Discourage Frivolous Lawsuits.
A. Require Exhaustion of Administrative Remedies.
Exhaustion of remedies is a well-established principle in
administrative law: a party must pursue available means of recourse
within an agency before resorting to a judicial challenge of the
agency's action. Under the related doctrine of ``waiver,'' a party must
raise a particular issue before the agency in order to be able to
pursue a subsequent judicial challenge based on that issue.
10 Moreover, an objection to an agency position must be made
with sufficient specificity reasonably to alert the agency to the
potential flaws in its analysis. 11 These doctrines have
multiple purposes: avoiding premature claims before agencies can
develop appropriate background, allowing agencies to apply their own
expertise, giving agencies the ``first chance'' to exercise their own
discretion before judicial review, and providing agencies the
opportunity to find and ameliorate their own errors. 12
---------------------------------------------------------------------------
\10\ See, e.g., Marathon Oil Co. v. United States, 807 F.2d 759,
767-68 (9th Cir. 1986); Tex Tin Corp. v. U.S. E.P.A., (D.C. Cir.
1991)(``[a]bsent special circumstances, a party must initially present
its comments to the agency during the rulemaking in order for the court
to consider the issue.'')
\11\ See Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d
1516, 1519 (D.C.Cir.1988), cert. denied, 489 U.S. 1078 (1989).
\12\ See, e.g., McKart v. United States, 395 U.S. 185, 194-95
(1969)(addressing exhaustion) U.S. v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33, 36-37 (1952) (addressing waiver and explaining that
``orderly procedure and good administration require that objections to
the proceedings of an administrative agency be made while it has
opportunity for correction in order to raise issues reviewable by the
courts.... Simple fairness to those who are engaged in the tasks of
administration, and to litigants, requires as a general rule that
courts should not topple over administrative decisions unless the
administrative body not only has erred but has erred against objection
made at the time appropriate under its practice.'')
---------------------------------------------------------------------------
Where NEPA is concerned, however, current case law is not clear
that parties must raise issues before the agency and must exhaust
administrative remedies in order to pursue judicial review. Some case
law suggests that a party need not raise a particular issue before the
agency so long as some other party has raised that issue. Some courts
apply a balancing test to determine whether exhaustion should apply,
weighing the agency's interests in appropriate process against the harm
to a plaintiff if judicial review is denied. In other cases, exhaustion
is routinely required where an agency's regulations require
administrative appeal before judicial review. 13 Finally, at
least one court has held that because NEPA applies to all federal
agencies, no agency has expertise in NEPA and exhaustion rule does not
apply. 14 This lack of uniformity in the NEPA context not
only adds to litigation uncertainty after agency decisions are made,
but also forces agencies to try to anticipate objections from a
potential plaintiff, even where those objections were never raised
before the agency. 15
---------------------------------------------------------------------------
\13\ See Trout Unlimited v. Dep't of Agriculture, 320 F. Supp. 2d
1090, 1098 (D. Colo. 2004).
\14\ See Park County Resource Council v. U.S. Department of
Agriculture, 817 F.2d 609 (10th Cir. 1987).
\15\ The Supreme Court has recently reconfirmed that parties
challenging an agency's NEPA compliance bear a responsibility to
``structure their participation so that it is meaningful, so that it
alerts the agency to the [parties'] position and contentions.'' Dep't
of Transportation v. Public Citizen, 124 S. Ct. 2204, 2213 (2004). See
also City of Sausalito v. O'Neill, 386 F.3d 1186, 1208 (9th Cir. 2004)
(similar). ``Ilio'Ulaokalani Coalition v. Rumsfeld, 369 F. Supp. 2d
1246, 1253 (D. Hawai'i 2005). The Court indicated that this is true
even though the agency has the primary responsibility to ensure NEPA
compliance, but the Court went on to note that flaws in the NEPA
process ``might be so obvious that there is no need for a commentator
to point them out specifically in order to preserve its ability to
challenge a proposed action.'' Public Citizen, 124 S. Ct. at 2214.
---------------------------------------------------------------------------
To address this confusion and give agencies an opportunity to
respond to potential criticisms, the doctrines of exhaustion and waiver
should be codified in NEPA. NEPA should be amended to explicitly
require the timely participation of third parties in proceedings before
the agency. The statute should make clear that parties are required to
put agencies on notice of potential flaws in their NEPA analyses by
providing sufficiently detailed comments during the public process. For
example, parties seeking to challenge an agency's alternatives analysis
should be required to alert the agency to overlooked alternatives well
before the Final EIS and Record of Decision (ROD) are entered.
16 Similarly, parties should not be allowed to claim that
NEPA documents inadequately considered the environmental or other
effects of the proposed action when they failed to raise those issues
during the public comment process or declined to pursue all available
opportunities for administrative challenges. 17 Third
parties should be prohibited from bringing actions based upon matters
that they neglected to discuss thoroughly before the agency during
administrative proceedings or that they failed to pursue through all
available administrative procedures.
---------------------------------------------------------------------------
\16\ Public Citizen, 124 S. Ct. at 2214 (finding respondents
``forfeited any objection to the EA on the ground that it failed
adequately to discuss potential alternatives to the proposed action'').
\17\ See, e.g., Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th
Cir. 1991).
---------------------------------------------------------------------------
B. Strengthen Bond Requirements for Plaintiffs Seeking Injunctions.
Federal Rule of Civil Procedure 65(c), which covers preliminary
injunctions, provides:
No restraining order or preliminary injunction shall issue
except upon the giving of security by the applicant, in such
sum as the court deems proper, for the payment of such costs
and damages as may be incurred or suffered by any party who is
found to have been wrongfully enjoined or restrained.
18
---------------------------------------------------------------------------
\18\ Fed. R. Civ. P. 65(c) (emphasis added).
---------------------------------------------------------------------------
Federal Rule of Civil Procedure 62(c), which covers injunctions
pending appeal, requires a bond to be in an amount ``proper for the
security of the rights of the adverse party.'' Fed. R. Civ. P. 62(c).
The posting of either type of injunction bonds allows the court to
preserve the status quo, but at the same time protects defendants
against damage they might suffer if the court later finds a permanent
injunction is not warranted.
Despite these two rules, a number of cases suggest that some
plaintiffs occupy a privileged position and are only required to post a
nominal bond if they obtain an injunction that halts a project.
19 This ``NEPA exception'' to the bond requirement is meant
to allow private organizations to pursue NEPA enforcement. In most
cases, plaintiffs are not required to post a bond at all, or only a
small nominal bond, irrespective of their potential financial
resources. 20 Thus, over the years, the concept of
protecting the ``public interest'' has become conflated with the goal
of stifling agency action.
---------------------------------------------------------------------------
\19\ See, e.g., Save Our Sonoran v. Flowers, 381 F.3d 905, 916 (9th
Cir. 2004) (noting Ninth Circuit's ``long-standing precedent that
requiring nominal bonds is perfectly proper in public interest
litigation''); Davis v. Mineta, 302 F.3d 1104, 1126 (10th Cir. 2002)
(``where a party is seeking to vindicate the public interest served by
NEPA, a minimal bond amount should be considered'').
\20\ A few courts have adopted a ``balancing'' test, considering
the relative hardship to the parties. See, e.g., Save Our Sonoran v.
Flowers, 381 F.3d at 916 (requiring $50,000 bond and noting such an
amount was appropriate ``[s]o long as a district court does not set
such a high bond that it serves to thwart citizen actions'').
---------------------------------------------------------------------------
The injunctions granted by courts routinely cost industry and the
government huge sums while a project is delayed and additional
environmental analyses are conducted in order to correct a deficiency
in an EIS. When the injunction is wrongly issued and no bond has been
posted, industry participants have no recourse in recovering their
substantial losses and the government has no recourse for the resources
it has inappropriately allocated to additional NEPA analyses.
Amendments to NEPA should explicitly disclaim the ``NEPA exception'' to
the Federal Rules' clear requirements that plaintiffs post bonds to
cover the ``costs and damages'' and to ``secure[] the rights of the
adverse party.'' Courts should be required to conduct an appropriate
balancing test that considers not just the desire to have private
parties enforce NEPA, but also protect the rights of the government and
project proponents and defray the costs from lawsuits which result in
serious delay and huge price tags.
C. Impose a 180-Day Statute of Limitations on NEPA Claims.
Neither NEPA, nor the Administrative Procedure Act (``APA''), which
provides a private right of action under NEPA, have an explicit statute
of limitations. While the issue is not completely settled, most Circuit
Courts of Appeal hold that the appropriate statute of limitation for
bringing a NEPA action is six years. The view is grounded on the
language of 28 U.S.C. Sec. 2401(a), which is the general statute of
limitations for claims against the United States and which has been
routinely applied to Administrative Procedure Act lawsuits.
21 Some case law and commentators suggest, however, that
statutes of limitations do not apply to NEPA claims. 22
---------------------------------------------------------------------------
\21\ 28 U.S.C. Sec. 2401(a) (``[E]very civil action commenced
against the United States shall be barred unless the complaint is filed
within six years after the right of action first accrues.''). See,
e.g., Jersey Heights Neighborhood Ass'n v. Glendening, 174 F.3d 180,
186 (4th Cir. 1999); Southwest Williamson County Community Ass'n v.
Slater, 173 F.3d 1033, 1036-37 (6th Cir. 1999); Chemical Weapons
Working Group, Inc. v. Dep't of the Army, 111 F.3d 1485, 1494-95 (10th
Cir. 1997).
\22\ See, e.g., Park County Resource Council v. U.S. Department of
Agriculture, 817 F.2d 609 (10th Cir. 1987) (``NEPA itself does not
contain a statute of limitations'' therefore timeliness challenges
involve only the doctrine of laches); Daniel R. Mandelker, NEPA Law and
Litigation Sec. 4:34 (opining that Park County takes the better view).
Because laches is an ad hoc doctrine that is determined on a case-by-
case basis by individual courts, it provides little predictability to
parties seeking finality in agency decisionmaking. Nor does it provide
clear advance guidance to plaintiffs who may be considering whether and
when to raise their claims.
---------------------------------------------------------------------------
Courts applying the six-year period consider a final EIS or Record
of Decision based on that EIS to constitute ``final agency action.''
23 In most instances, projects subject to NEPA will engender
significant investment (e.g., planning, permitting, preliminary
construction activities) and may be substantially underway even a few
months after an EIS or ROD has been approved. Obviously, the more time
that has elapsed, the greater the potential for substantial investment
and other commitment in reliance on agency approvals. In addition, the
public (and especially parties that have expressed their interest
through participation in the project) certainly have notice of an
agency's final decision in ample time to bring a prompt challenge.
24 Thus, no legitimate policy is promoted by a delay in
litigation. Imposing a shorter time period imposes little risk that a
potential plaintiff was taken completely unawares. We recommend a
general limit of 180 days. 25 In addition, if another
statute prescribes a shorter duration, we recommend that NEPA be
amended to explicitly yield to any shorter period of time prescribed
for bringing an action.
---------------------------------------------------------------------------
\23\ See, e.g., Southwest Williamson County, 173 F.3d at 1036.
\24\ See, e.g., 40 C.F.R. Sec. 1505.2 (public record of decision
where EIS is prepared); 40 C.F.R. Sec. 1506.6 (public notice and
involvement requirements).
\25\ For other administrative review, environmental statutes have
traditionally required challenges during a more restricted period. For
example, the Clean Water Act required review of most administrative
regulatory decisions within 120 days. See Clean Water Act Sec. 509(b),
33 U.S.C. Sec. 1369(b). See also Clean Air Act Sec. 307(b), 42 U.S.C.
Sec. 7607(b) (generally requiring an action challenging administrative
decisions to be brought within sixty days). This period also coincides
with the limitation imposed by Section 6002(l)(1) of the recently
passed Transportation Act.
---------------------------------------------------------------------------
D. Provide For Responsibility for Attorneys' Fees.
Under the ``American Rule'' governing attorneys' fees, parties
generally bear their legal expenses, regardless of the result of the
litigation. In addition to facing the costs associated with additional
environmental analyses, the government and project proponents
consequently often incur significant legal fees while responding to a
NEPA challenge. There is one exception to this rule that applies to
NEPA: the Equal Access to Justice Act 26 (``EAJA'') allows
federal courts to award costs and fees to a prevailing party in a NEPA
action against the government, provided that the government's position
is not substantially justified. Many cases have allowed successful
public interest parties to recover their fees when there is a material
alteration or a court-ordered change in the legal relationship between
the parties. 27
---------------------------------------------------------------------------
\26\ 28 U.S.C. Sec. 2412(b)(d).
\27\ See Preservation Coalition of Erie County v. Fed'l Transit
Admin., 356 F.3d 444, 452 (2d Cir. 2004) (examples include enforceable
judgments, consent decrees, court order to prepare a supplemental EIS).
---------------------------------------------------------------------------
There is currently no opportunity, however, for project proponents
to recover their costs and fees from private parties who initiate
frivolous NEPA litigation. The Task Force should consider conferring
authority upon the district courts to award attorneys' fees incurred by
the government and industry in defending unfounded NEPA litigation. If,
for example, NEPA prescribed that the district court may exercise its
discretion to award attorneys' fees against any party challenging a
federal project on NEPA grounds in those circumstances, the provision
might well limit the number of frivolous challenges. Such a provision
would not, however, chill or inhibit plaintiffs' ability to bring
meritorious NEPA actions, since it would be limited to the most
egregious of cases.
III. Permit Increased Participation in Litigation by Project Proponents
and other Interested Parties.
A. Change the Intervention Standards for Project Proponents.
Although most federal courts follow a liberal policy in allowing
citizen groups and environmental associations to defend the general
public's broad interest in environmental protection, some courts have
been far less willing to allow private parties to defend an agency's
position on the grounds that those parties have economic interests.
28 Project proponents typically have a direct and
significant interest in the property or transaction that is the subject
of a lawsuit brought under NEPA, yet face hurdles in participating in
the litigation. Specifically, it has proven difficult for some parties
to intervene ``as of right'' in the litigation because some courts have
held that the government is the only proper defendant in a NEPA
challenge. To remedy this fundamental unfairness, we recommend amending
NEPA to expressly protect the rights of prospective intervenors who
have a significant economic interest in the outcome of NEPA claims.
---------------------------------------------------------------------------
\28\ Compare Wilderness Soc. v. Babbitt, 104 F. Supp. 2d 10, 18
(D.D.C. 2000) (concluding that D.C. Circuit's generous attitude toward
Rule 24(a) in general should carry over to NEPA context) with Wetlands
Action Network v. United States Army Corps of Eng'rs, 222 F.3d 1105,
1114 (9th Cir. 2000) (denying intervention on the merits to project
proponents).
---------------------------------------------------------------------------
NEPA itself does not contain a provision addressing intervention by
private parties. Rather, federal courts rely on the Federal Rules of
Civil Procedure to decide whether a party can intervene in a lawsuit
raising NEPA challenges. Recently, federal courts, particularly in the
Ninth Circuit, have applied Rule 24(a) in such a way as to close the
courts to private parties who are directly affected by the outcome of
the cases in question. 29 According to Ninth Circuit
precedent, NEPA does not provide protection for purely economic
interests. 30 Courts in the Ninth Circuit have held that
parties with purely economic interests do not have a ``significantly
protectable interest'' in NEPA litigation and cannot intervene as of
right under Rule 24. 31
---------------------------------------------------------------------------
\29\ According to the Ninth Circuit, a party may intervene under
Rule 24(a) provided the party satisfies four necessary factors: (1)
motions for intervention must be timely; (2) the nonparty must claim a
``significantly protectable interest'' relating to the subject matter
of the action; (3) the nonparty must demonstrate that his ability to
protect his interest will be ``impair[ed] or impede[d] by a negative
result in the action; and (4) the nonparty must demonstrate that his
interests are ``inadequately represented'' by the existing parties.''
See, e.g., Sierra Club v. United States E.P.A., 995 F.2d 1478, 1481
(9th Cir. 1993). Applying this test, the Ninth Circuit has repeatedly
ruled that industry parties cannot intervene as of right in NEPA cases
because only the government is a proper defendant. See, e.g., Churchill
County v. Babbitt, 150 F.3d 1072, 1082 (9th Cir. 1998). The Ninth
Circuit's ``government-only'' ruling stems from an interpretation of
the ``significantly protectable interest'' test that excludes economic
interests. See Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108
(9th Cir. 2002). The court has reasoned that NEPA requires action only
by the government, and therefore only the government can be liable.
Churchill County v. Babbitt, 150 F.3d at 1082.
\30\ Portland Audubon Soc. v. Hodel, 886 F.2d 302, 309 (9th Cir.
1989).
\31\ Id. But see Rosebud Sioux Tribe v. McDivit, 286 F.3d 1031,
1038 (8th Cir. 2002) (citing Bennett v. Spear, 520 U.S. 154, 166
(1997)); Friends of Boundary Waters Wilderness v. Dombeck, 164 F.3d
1115, 1125 (8th Cir. 1999).
---------------------------------------------------------------------------
The Ninth Circuit's interpretation can have unfair consequences in
the context of NEPA. If a court concludes that only the government has
the requisite interest in NEPA cases, project proponents can be barred
from litigation despite the fact that their interests would be severely
jeopardized by an adverse ruling and would not be adequately
represented by the government defendant. Because the Ninth Circuit is
the largest federal circuit--including California, Oregon, Washington,
Arizona, Montana, Idaho, Nevada, Alaska, and Hawaii--the effect of this
troubling jurisprudence is wide-reaching. Other courts and commentators
have been critical of the Ninth Circuit's position. 32 NEPA
legislative amendments should clarify that parties who have made
substantial economic investments in a project have a ``significantly
protectable interest'' under NEPA.
---------------------------------------------------------------------------
\32\ See, e.g., The Wilderness Society v. Babbitt, 104 F. Supp. 2d
10, 18 (D.D.C. 2000) (noting Ninth Circuit's jurisprudence on
intervention is NEPA cases is ``unduly rigid in light of Rule 24's
purpose of protecting third parties affected by litigation'' and
instead allowing prospective intervenors to participate in all aspects
of litigation).
---------------------------------------------------------------------------
B. Permit Participation by Project Proponents and Other Interested
Industry Representatives in Government Settlement Negotiations.
When a government agency decides to participate in settlement
discussions with NGOs and other NEPA plaintiffs, affected businesses
can be excluded. In keeping with the recommendation above that industry
be full-fledged participants in the litigation, industry should also be
an important part of any settlement. NEPA amendments should require
settlement negotiations to include project proponents and other
affected businesses.
IV. Give Courts More Guidance.
A. Establish a Standard of Review within the NEPA Statute.
The standard of review governing NEPA is that for informal
decision-making and is borrowed from the Administrative Procedure Act
(APA). 33 Judicial review determines whether an agency's
decision is ``arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law.'' 34 Obviously, the
standard of judicial review a court selects determines its likelihood
of overruling an agency's decision. This ``arbitrary and capricious''
standard is the most deferential standard courts apply when reviewing
agency decisions. 35 In NEPA cases, courts generally apply
the APA's arbitrary and capricious standard to an agency's decision on
whether an EIS is required or whether an action is categorically
excluded. Courts differ, however, in how they apply that standard.
36 For example, some courts conclude that because NEPA is
not the province of any particular agency, no one agency has
``expertise'' with respect to that statute and agencies are therefore
due less deference in NEPA cases than in other administrative law
contexts. In other cases, courts have found that a ``reasonableness''
standard applies to the threshold legal question of whether an action
is a ``major federal action'' under NEPA. 37
---------------------------------------------------------------------------
\33\ Marsh v. Oregon Natural Resources Council, 490 U.S. 360
(1989).
\34\ 5 U.S.C. Sec. 706(2)(A).
\35\ See, e.g., Mandelker, NEPA Law and Litigation Sec. 8:2.
\36\ Id. at Sec. 8:7.
\37\ Goos v. Interstate Commerce Comm'n, 911 F.2d 1283 (8th Cir.
1990). Compare, e.g., Spiller v. White, 352 F.3d 235, 240 (5th Cir.
2003) (plaintiffs face ``high bar to success'' since decision not to
prepare EIS is ``accorded a considerable degree of deference'') with
Grand Canyon Trust v. FAA, 290 F.2d 339, 340-41 (D.C. Cir. 2003)
(stating agency's EA must take ``hard look at the environmental
concern, must make convincing case for FONSI, and agency must ensure
projects has sufficient safeguards to reduce impacts to minimum when
EIS not prepared).
---------------------------------------------------------------------------
In order to ensure that agencies' NEPA decision-making receive all
the deference they are due, the statute should include an explicit
standard of review for NEPA cases.
B. Clarify Remedies When a NEPA Violation is Found.
Currently, some case law may be read to suggest that once a court
finds a violation of NEPA, it must halt the entire project. Yet, in
many instances, courts are able to tailor an injunction to protect the
environmental interest at issue during the pendency of the preparation
of an EIS. The authority to issue an injunction of this sort should be
codified and encouraged.
CONCLUSION
Thank you for the opportunity to testify here today. My clients and
I appreciate the Task Force's efforts in providing this series of
public hearings as a forum for those interested in improving NEPA. The
recommendations I have made here seek to address some of the more
critical flaws in the current NEPA regulatory scheme. Each of these
issues--as well as many others--merit investigation and discussion in a
level of detail not appropriate for today's hearings. We look forward
to working with you, and others in Congress, to listen to other
concerns, to analyze fully the effects of the current system and to
develop a reasoned, responsible approach to NEPA reform.
______
[Response to questions submitted for the record by Mr.
Martin follows:]
John C. Martin
PATTON BOGGS LLP
(202) 457-6032
[email protected]
December 9, 2005
VIA U.S. MAIL AND EMAIL
Task Force on Improving NEPA
Attn: Joanna MacKay
House Committee on Resources
Longworth House Office Building, 1320
Washington, DC 20515-6201
Re: Responses to Additional Questions Posed by Task Force
To the Task Force on Improving NEPA:
I would first like to thank you for granting me the opportunity to
testify before the Task Force on November 17, 2005. My clients and I
appreciate the Task Force's efforts in providing this public forum so
that those interested in improving NEPA may offer our recommendations.
In addition, I would like to respond to the Task Force's follow-up
questions, which I received in a letter dated November 22, 2005. The
Task Force posed two additional questions: (1) ``Apart from the Ninth
Circuit Rule 24 decision you cite, is there a problem with project
proponents not being able to participate in litigation or are they
choosing not to participate?'' and (2) ``Could your recommendation that
exhaustion of administrative remedies actually cause more delays than
under current law?'' I will respond to each of these inquiries in turn.
1. Participation in Litigation by Project Proponents
Private parties with an economic interest in a project, including
project proponents, currently have no assurance that they will be able
to defend their projects against attacks brought by project opponents.
This circumstance arises because some federal courts--including the
Courts of Appeals for the Fifth, Seventh and Ninth Circuits and the
District Court for the District of New Mexico--have ruled that parties
with economic interests in projects may not intervene as of right in
NEPA lawsuits attacking those projects. Despite the potentially
devastating economic injuries they will suffer, these courts maintain
that such parties simply do not have a ``significantly protectable
interest.'' 1 Instead, project proponents, and others who
have an ``economic'' interest in NEPA litigation, must rely on the
Government, whose interest is, of course, not identical to their own,
to defend the litigation. Those parties are left to simply hope that
the Government's litigation strategy will incidentally vindicate their
rights as well.
---------------------------------------------------------------------------
\1\ Because NEPA does not contain a provision addressing
intervention by project proponents, the courts decide whether those
parties can intervene under the Federal Rules of Civil Procedure. Under
Rule 24(a), any party may intervene in an action provided the applicant
``claims an interest relating to the--subject of the action,'' and the
applicant is ``so situated that the disposition of the action may as a
practical matter impair or impede the applicant's ability to protect
that interest.'' Fed. R. Civ. P. 24(a). A number of courts have
interpreted this ``interest'' requirement narrowly so as to prevent
project proponents from participating until the remediation phase of
the NEPA lawsuit.
---------------------------------------------------------------------------
It is difficult to determine precisely how many of these parties
have been denied the opportunity to participate in NEPA litigation.
Given that this narrow interpretation of the right to intervene in NEPA
cases may be seen as ``the law of the land'' in certain jurisdictions,
many parties may be discouraged from attempting to intervene. In that
sense, some project proponents may be said to have ``chosen'' not to
seek intervention, but, in fact, they have been denied intervention.
Those instances of intervention denied, of course, cannot be
documented. It is certainly true that while there are a number of cases
expressly denying parties the right to intervene, even more parties
have effectively lost the right to intervene by the precedent
established in those cases.
Denying the right to participate in NEPA litigation to the parties
who, in many instances, have the strongest tangible interests in the
outcome of that litigation not only contravenes fundamental notions of
fairness, but it diminishes the NEPA, as well as the judicial process.
NEPA is intended to foster participation, to encourage the airing of
different perspectives on a project, and, most essentially, to draw out
information from all sides about a particular project. Similarly, the
judicial process rests on the assumption that an adversarial process
involving parties with direct, concrete interests on both sides of an
issue is likely to produce the best results. Denying the right to
participate to those whose interests are economic undercuts these basic
principles, and means that the ultimate resolution of a NEPA issue is
more likely to be reached based on an incomplete picture of the project
and its likely impacts. The interests at stake in projects subject to
NEPA--the production of much-needed energy resources, the rebuilding of
critical infrastructure, the protection of public lands, and many
others--are too important not to include all interested parties in the
resolution of challenges to those projects.
Congress can alleviate this problem by amending NEPA to make clear
that parties whose economic interests are affected by litigation have a
right to intervention just as do those parties whose interests are less
tangible.
a. Existing Case Law Denying Intervention
As my previous written testimony explains, the United States Court
of Appeals for the Ninth Circuit has repeatedly held that industry
parties cannot intervene as of right in NEPA cases, asserting that the
government is the only proper defendant. See, e.g., Wetlands Action
Network v. U.S. Army Corps of Eng'rs, 222 F.2d 1105, 114 (9th Cir.
2000); Churchill County v. Babbitt, 150 F.3d 1072, 1082 (9th Cir.
1998); Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108 (9th
Cir. 2002).
Although other courts and commentators have rejected this
interpretation, the Ninth Circuit is not alone in advancing it. The
United States Courts of Appeals for the Seventh and Fifth Circuits and
the United States District Court for the District of New Mexico have
also suggested that parties with economic interests in a project will
not be permitted to defend those interests if they are attacked in
litigation under NEPA.
In Wade v. Goldschmidt, 673 F.2d 182 (7th Cir. 1982), private
parties attempted to intervene to prevent economic losses that would
result if a challenged project did not proceed as planned. The Seventh
Circuit explained that NEPA provides no protection for economic
interests and that only the federal government could defend against
NEPA challenges: ``all other entities have no right to intervene.'' 673
F.2d at 185.
Following the Seventh Circuit's lead, in Collin County v.
Homeowners Ass'n for Values Essential to Neighborhoods, 915 F.2d 167
(5th Cir. 1990), a citizens' group was opposing construction of a
highway. Collin County brought an action against the citizens' group,
seeking a declaration that the final EIS for the highway project
complied with NEPA. 915 F.2d at 168-69. The court dismissed the suit,
holding that the county lacked standing to bring a declaratory action
against a citizens' group. Then, even though it had already dismissed
the case, the Fifth Circuit went a step further, announcing in dicta
that only governmental bodies can defend NEPA actions and that Collin
County could not have intervened in a NEPA lawsuit brought by the
citizens' group. Id. at 171.
Finally, explaining that the Court of Appeals for the Tenth Circuit
had not yet ruled on this issue, the District Court for the District of
New Mexico seized the opportunity to deny intervention. In Forest
Guardians v. BLM, 188 F.R.D. 389, 395 (D.N.M. 1999), the court
explained that it was ``taking guidance from the Ninth Circuit line of
cases,'' and excluded grazing permittees from participation in a NEPA
action brought by environmental groups because ``applicants here do not
have a legally protectable interest...to allow full as-of-right
intervention under Rule 24.'' 188 F.R.D. at 195.
Thus, although parties attacking projects under NEPA generally have
broad rights to participate in litigation, project proponents in many
instances simply do not have an equivalent right to intervene to defend
their interests in such litigation.
b. Affirming a right to intervention
Congress could take steps to affirm private participation in the
defense of NEPA actions by amending the statute to clarify that: (i)
industry has the right to intervene as of right under Federal Rule of
Civil Procedure 24(a), and (ii) industry assertions of purely economic
harm should be considered to fall within the ``zone of interests''
protected under NEPA. These two changes should make clear that affected
business interests have a right to participate as a full-fledged party
in any litigation challenging a government project's NEPA compliance.
Such an amendment to the NEPA statute should also help to clarify
that Defendant-Intervenors should not lose their standing in a NEPA
case if the government declines to pursue an appeal of a district court
ruling. Currently, the status of a Defendant-Intervenor seeking to
appeal a district court's NEPA decision may be unclear where the
government declines to appeal. Absent an appeal by the government, a
defendant-intervenor must have independent jurisdictional grounds on
which to pursue an appeal and must satisfy the standing requirements of
Article III. See, e.g., Kootenai Tribe of Idaho v. Veneman, 313 F.3d
1094 (9th Cir. 2002). To establish standing, a defendant-intervenor
must show, among other things, that it has suffered an invasion of a
``legally-protected interest.'' See Didrickson v. United States Dep't
of the Interior, 982 F.2d 1332, 1340 (9th Cir.1992) (quoting Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560 (1991)). As discussed above,
several courts have held that only environmental interests, narrowly
construed, fall within that zone of legally protected interests, while
economic interests do not. By clarifying that economic interests fall
within NEPA's ``zone of interests,'' Congress can ensure that project
proponents may defend their interests both at the trial court level and
on appeal.
2. An exhaustion requirement would improve the NEPA process, foster
the goals of NEPA, and, on balance, would likely expedite
resolution of NEPA challenges.
Although requiring parties to present their concerns to the agency
in the first instance may occasionally extend the timetable for
completing administrative review, it fosters the fully-informed
decisionmaking that is the goal of NEPA and it allows agencies the
opportunity to address potential concerns before decisions are made and
before litigation is invoked. It would also likely reduce the
likelihood of litigation. Thus, on balance, it is more likely to
improve, rather than exacerbate, the problems of extreme and
unwarranted delay that currently plague NEPA processes.
Exhaustion is based on the notion that a party that wants to sue an
administrative agency for a decision that the agency has made must
first avail itself of public participation and appeal opportunities
that the agency provides relating to that decision. Where exhaustion is
required, a party must do two things if it later wants to sue the
agency: (1) it must raise any future litigation issues before the
agency first; (2) it must participate in all the steps of the agency
process, not just some of them. 2
---------------------------------------------------------------------------
\2\ While these two concepts have become muddled in the case law,
both are important aspects of the doctrine of exhaustion. The first is
sometimes described as ``waiver'' because a party who has not raised an
issue before the agency has ``waived'' that particular issue and cannot
raise it during litigation. The second is often referred to more
generally as ``exhaustion,'' because a party must exhaust the entire
administrative agency process before proceeding to the judicial review
process.
---------------------------------------------------------------------------
Within the NEPA process, there are many opportunities for affected
parties to participate, ask questions, voice their concerns, and seek
solutions. An agency's NEPA's public participation process typically
includes public scoping meetings, comment periods, and protest or other
agency appeal procedures. NEPA works best when interested parties
participate fully in the agency process, and provide the agency with an
opportunity to address their concerns. The process breaks down when
interested parties decline to participate fully--either by neglecting
to raise all their issues, or by ignoring some of the stages of agency
proceedings--and then months, or even years later, those parties go
straight to court to complain that the Agency neglected their concerns.
Although an exhaustion requirement in NEPA arguably could force
administrative agencies to do a little ``extra work'' to address
additional comments, and this could result in some delay, encouraging
potential issues to be aired in a predecisional process--exactly as
NEPA originally contemplated--will foster better decisionmaking.
Moreover, any delays from these additional predecisional efforts are
likely to be more than offset by resolving issues early and avoiding
protracted and costly litigation.
I hope that these additional responses are helpful. If the Task
Force has any addition questions, please do not hesitate to contact me.
Best regards,
John C. Martin
cc: Glen Maynard
Todd Ennenga
Rick Axthelm
______
Miss McMorris. Excellent testimony from everyone, and we
really appreciate you being here and taking the time to be
here.
Mrs. Drake. Would you start?
Mrs. Drake. Yes. Thank you, Madam Chairwoman. I would also
like to thank all of you for being here, and once again at a
Task Force hearing I have heard the thing that we all believe;
and that is, we all think that NEPA, the underlying thread of
NEPA, is a very good thing, to have Federal agencies involved,
Federal--that their knowing a project is going to have public
participation, we think that is good.
But I do think Mr. Harwood said it well when he said, what
we really need to look at are the procedures and the process.
And I think I would like to start with Mr. Yost and Mr.
Dreher, and maybe follow it up by Mr. Goldstein, because the
thing that I have heard across the Nation are the lawsuits.
And I know that Mr. Yost and Mr. Dreher--I hope I am saying
that right--have said that there is a very small number of
lawsuits, and so it really shouldn't be a concern. But that is
not what we have heard. We have seen pictures of stacks of
papers that would fill the trunk of a car, the issue of people
doing above and beyond and requiring additional things just in
case there is a lawsuit.
Personally, I think if there are 150 cases and only 11 of
them where the courts found an injunction makes you wonder
about what was behind those 145 that didn't take place. And we
did have someone testify in Norfolk what our big fear is, and
that is, lawsuits come about through NEPA because it is a easy
way to do it. That is to paraphrase. But we actually had one of
the people testify that they used NEPA in order to file the
lawsuit.
So, I would just like for to you comment. And I know you
say that is a small number, but the fear of the lawsuit, I
think is what generates a lot of paperwork, a lot of extra
work, a lot of extra time. And I lost my train of thought on
the last question. But I will let you answer that and then I
will get it back. Thank you.
Mr. Yost. I think, Congresswoman Drake, that there is good
sense in what you're saying there, that the fear is in a sense
it is real. But three things: First, were it not for
litigation, nobody would pay any attention to NEPA and
environmental impact statements. And I think that is just sort
of a fact of life. That is what makes Federal agencies do what
Congress has told them they are supposed to do because somebody
is looking over their shoulder.
Mrs. Drake. Mr. Yost, wouldn't you think Congress should
look over their shoulder rather than the courts? That is part
of our job is oversight, and that is part of what we are doing
right now.
Mr. Yost. I think that that makes a lot of sense, but I
don't think they are mutually exclusive. We have, as Chairman
Connaughton said, about 50,000 NEPA actions annually. That is
an awful lot of detail for Congress to get involved in. But
second, picking up on what you're saying, one of the
recommendations I made, which I have discussed with your
Chairwoman before, is trying to get good legal input.
And I suggest in my presentation that involving the Justice
Department is a way to do it without having to look for outside
resources to advise agencies on the adequacy of their documents
before they hit the street, so that you have those who will
ultimately be defending the document having a say in the
preparation of the document, which means it is going to be a
lot better document when it comes out.
But also I agree what is implicit in what you were saying
and what a number of the other witnesses have said about when
there is judicial review, moving it along quickly. And I have
made several recommendations in there, including statute of
limitations, priority for suits, measures to try and ensure
that the administrative record is promptly prepared. So there
are a number of steps that can be taken to expedite litigation.
Mrs. Drake. What about some sort of a checklist that you
cannot file a lawsuit unless there have been violations? Like
you said, this is a big hammer. So the agencies have to do the
right thing because of the court case. But what we are hearing
today is that there is no standard. You can just automatically
go into court under NEPA. I would think before you go into
court, somebody should have violated something. And maybe some
sort of a check list. I really like the idea of a mediation or
dispute resolution before the court case.
Mr. Yost. I think mediation or a dispute regulation is a
very worthwhile idea. It is unethical for a lawyer to bring a
suit without a belief in a reasonable prospect of success in
that suit. As you know, the Federal court system has a system
of sanctions whereby if somebody brings an irresponsible suit,
they can be sanctioned. Mr. Dreher was accurate, as far as I
know, in his statement that no NEPA plaintiff has ever been
sanctioned by a Federal judge.
Mrs. Drake. If I could just add to that, my question would
be: Is that because there are no guidelines for filing the
suit?
But thank you, Madam Chairwoman. I will yield back. My time
has expired.
Miss McMorris. I will give the other two an opportunity to
answer. And just for everyone's information, it looks like we
are going to have votes again at 10 after, so we are going to
try to keep it going. OK.
Mr. Dreher. Thank you, Madam Chairwoman. This is obviously
an important issue. As you know, I have represented individuals
in litigation. I have also defended Federal agencies and I have
also advised private clients about litigation matter. So I
think I have a relatively balanced view on it. I have to say,
first, that you have to bear in mind that NEPA is enforced
through citizen litigation.
And most importantly, NEPA is intended to empower ordinary
citizens in dealing with the forces of big government. And
going to an independent judge is an essential right to carry
that out, to be able to tell your constituents that they have
rights to actually be heard and to get disputes resolved.
I would welcome suggestions for dispute resolution. I
welcome the suggestion that CEQ and the Federal agencies be
given resources to try to explore ways to resolve these issues.
I particularly think engaging in public participation early in
the scoping process, bring the public in, find out their
concerns, can lead to resolution of those concerns.
But, ultimately, I think you have to allow citizens their
right to go to court if they are seriously aggrieved.
Now, I think it is not that there are no standards. I think
the difficulty is that there are a set of principles that you
apply in environmental analysis to particular cases. But the
way they fit those particular cases, obviously, has to vary
from case to case. Whether an agency is doing an adequate job
of identifying environmental impacts and looking at cumulative
effects is going to depend upon a case-specific inquiry.
And sometimes citizens will disagree about whether they
think that is adequate. That doesn't mean they are acting in
bad faith. I am not aware of any actual valid suggestions that
citizens are acting in bad faith. I think your constituents, in
fact, go to court only when they think they have rights that
seriously are at risk.
I will pass with that.
Mr. Goldstein. Thank you, Congresswoman Drake. ARTBA shares
your well-founded concerns. And actually if I might just quote
from a grass-roots litigation training manual that was issued
by the Community Environmental Defense Fund where they say
that, quote: In an area devoid of endangered species, impacts
to waterways and floodplains or Federal funding, NEPA may be
the only tool that grass-roots groups have to litigate.
In cases like that, the battle is being fought just to
fight a battle. A project has moved through the process,
decisions have been made, people have been consulted. But
people disagree with the decision, and with no other ground,
under NEPA, as Chairman McMorris said, to open up the hearing,
with a 37-cent stamp they can litigate.
In the case that I briefly described in my testimony that
ARTBA is most familiar with is in Las Vegas, a NEPA suit was
filed 4 years after completion of the final EIS. And here today
Mr. Martin just brought up incidences where it has been 6
years.
It is not that litigation shouldn't occur. Indeed, well-
timed litigation during the beginning of the process can save
everybody from a bad project. And I don't think anybody
disputes that projects that have true problems shouldn't be
completed or shouldn't be taken up.
But these things need to be heard early on in the process,
not 4 years and not 6 years hence.
Miss McMorris. Thank you. OK, Mr. Udall.
Mr. Tom Udall. Thank you, Madam Chair. The term
``frivolous'' lawsuits has been used here rather lightly I
think in both oral and written testimony. And this--I don't
think this is a term that should be used lightly. Rule 11 of
the Federal Rules of Civil Procedure allow courts to discipline
attorneys and parties for frivolous lawsuits.
Mr. Dreher, in your written testimony--and I think both you
and Mr. Yost have spoken to this today--you say to my
knowledge--and I assume you have done some kind of search
here--no court has ever, ever--and we are even underlining
``ever'' here and emphasizing it--sanctioned a NEPA plaintiff
for bringing a frivolous complaint or for filing a suit for
improper purpose, such as a mere delay.
The only cases that you found in which courts have
entertained motions for such sanctions involved businesses
suing under NEPA to protect purely economic interests; seeking
to impede a competitor who has received a Federal permit or a
license, for example, rather than environmental interests. And
even those requests have been denied.
Can anyone on the panel today come forward and give us a
case or cases where the Federal courts have sanctioned anyone
under the frivolous lawsuit provisions of rule 11? If you can't
do it today, I would ask that question, and I am sure the Chair
is going to allow supplemental testimony, allow you to come
forward and give us a case where everybody is talking about
these frivolous lawsuits. Please, any member of the panel that
can tell me where these frivolous lawsuits under rule 11 are.
We have absolute silence here. OK, good. And please come
forward later. I would be happy to hear them. We really want to
get to the facts here in this hearing. That is what it is all
about.
Mr. Martin. Congressman----
Mr. Tom Udall. I want cases. I don't want a response. If
you have a list of cases where there has been an abuse under
rule 11, that is what I am looking for; that is, what a
frivolous lawsuit is under the rules.
Mr. Martin. Let me express, if I may, my view of that which
might depart from what you have heard or at least the
inferences that apparently you're drawing. I think it is fair
to say that lawyers like professor Dreher do not file frivolous
lawsuits.
And I am not here to tell you that the lawsuits that I have
defended over the years were frivolous per se. Now, there is a
question, though, I think it is simply a policy question, and
the question is whether or not NEPA properly should be used to
delay or stop projects.
I would go so far as to say that someone who is a plaintiff
representing a client in the circumstances that Professor
Dreher's clients were in, who didn't consider a NEPA action for
the purpose perhaps of delay or stopping a project, might well
have a problem in terms of whether or not he had met his
obligation to zealously represent a client.
I think the real question is whether or not this is the
right use of NEPA as opposed to whether or not it is frivolous
per se. So that is my view.
Mr. Dreher. Mr. Chairman, Chairman Udall, if I could
respond on the same issue; you know, the notion that NEPA can
be used to stop projects. You know, one of the examples that
the Task Force looked at last week was the suggestion that the
environmentalists had drowned New Orleans from a 1977 lawsuit
in which a Corps EIS was found to be deficient. No one disputed
a note, by the way, no one disputed that the Corps' EIS was in
fact defective in that lawsuit. The real issue I think that the
Task Force, if it is serious about congressional oversight,
might want to ask is why would the Corps not have fixed its EIS
in the almost 30 years it had since 1977, if it believes that
the measures that it was impeded in putting into place were, in
fact, the best way to protect the citizens of New Orleans. The
Corps didn't think so. The Corps chose a different set of
alternatives, of measures after the lawsuit. But the point here
is very simple. NEPA doesn't stop anything. NEPA can't be used
to tell a Federal agency that it can't build a project. The
only thing NEPA does is make sure that the agency fully
considers environmental impacts and tells the public an honest
account of what is going to happen.
Any Federal agency willing to do that can go forward with
its project. And NEPA also doesn't successfully delay
projects--if the issue--what is the point of delaying a project
unless you actually think that the environmental information
you will get when the agency goes back and acknowledges the
problems might be significant enough to change the whole
picture?
That is what happened with the ivory billed woodpecker. A
citizen lawsuit against a proposal to dredge the Kashe River in
Arkansas led to a complete change in public perspective on
whether that project should go forward. The lawsuit was
ultimately resolved. The Corps had the ability to build the
project. But the information that had come out had changed
people's minds, including the government itself.
That is what NEPA can and should do. It should make sure
that environmental information is actually considered fairly.
And if that changes people's minds, that is what Congress
wanted. That is what NEPA was enacted for.
Mr. Tom Udall. Thank you.
Miss McMorris. I have a question for Mr. Yost, and just
thinking--I am thinking in my own district where we have the
Colville National Forest, and we had some serious fires a few
years back. And because of the way the NEPA regulations--the
law and regulations are implemented, we lost most of the value
of the trees before they could be salvaged. And right next door
to the Colville National Forest, the Colville Tribal
Reservation also lost trees. But because they have a different
NEPA process, they were able to go immediately. And they were
able to salvage 90 percent of the value of the trees; whereas
on the Colville National Forest, we lost 90 percent of the
value of the trees.
NEPA applies to both. It is implemented differently. And so
I think there are examples where, because of the way it is
implemented, it does result in a delay that ultimately can have
even a negative impact on the environment. And that is part of
what I would like to see us address, is if we can implement it
better.
And my question--and I will direct it to Mr. Yost, and if
anyone else wants to answer, that is great. We hear some that
have suggested the setting of the time limits. And one of your
recommendations also is to direct some kind of time limit. Just
wanting you to comment on do you think that should be done by
statute; and if it could be done, without harming the intent of
NEPA?
Mr. Yost. I think that that could be done either
administratively or by statute and that--I made two suggestions
as to how it might be done. And as you will recall, the
existing CEQ NEPA regulations say that in an applicant
situation, the applicant has a right to insist on time limits.
And that is largely disregarded. And I think that it should not
be disregarded.
I think CEQ could institute time limits. And initially it
didn't do so because a one-time-limit-fits-all doesn't work
when you're talking about a trans-Alaska pipeline or a single
interchange on a highway, you're talking about things of vastly
different magnitudes.
And so what I suggest is a series of presumptive time
lines, and that at the beginning of the process the lead agency
says, all right, we are going with category B, which means it
is done in 15 months or whatever. I think CEQ could do that
now. I think Congress could require them to do it now.
The second and alternative approach is to take the approach
which was taken by the Congress this year in safety in
expediting the NEPA process in transportation with respect to
transportation projects. It is a very carefully thought out
statute, which is, I think, respectful of NEPA's values. It has
the lead agency setting time lines, bringing the other agencies
in early in the process, and using reports to Congress as a
means of making sure that things move along in a timely
fashion; otherwise people have to explain themselves to
Congress. That obviously would take a congressional enactment,
to generalize what was done in safety, to all the different
agencies. But I think that would also be a reasonable approach
to take.
Overall, everything that I suggested can be done either
administratively--it doesn't need a congressional enactment--
except the matters pertaining to judicial review, such as
statutes of limitations and so on.
Miss McMorris. Very briefly.
Mr. Dreher. If I could add one word to that, I think the
overwhelming problem agencies face is lack of resources to
carry these mandates out. You can give them the time lines. But
if they don't have the staff and the money to do it--I worked
at EPA; and EPA of course comments and has official roles under
NEPA. And one of the things that was enormously helpful, Madam
Chairwoman, was TEA-21. TEA-21 allowed the Federal Highway
Administration to give financial resources to agencies like
Fish and Wildlife Services and EPA, so they could meet their
obligations in a timely fashion.
And I had people at the regions of EPA say this is a
godsend. It is not that we don't want to play. We literally
don't have a body to send to the meeting. Now we can hire
someone.
So I think finding some way to give these agencies
resources, maybe from project applicants, maybe from the
wealthier agencies like the Federal highways, is essential.
Miss McMorris. Does anyone else wish to comment.
Mr. Martin. I would like to, if I may, just comment on some
of those issues of delay and some of the things we might want
to think about.
One of the cases that I have litigated, it has to do with
coal-bed methane in Montana--is a case where we had an
injunction issued roughly in late February of this year. The
Department of the Interior, the BLM, in order to make up for
their perceived deficiency, is going to do a supplemental EIS.
So in addition to the 3 years that we expanded doing the
original EIS, they are doing a supplemental EIS within the
agency. That process will consume roughly 20 months' time.
I think it would be useful if we could find mechanisms BY
which we could limit that period of time.
Now, right now, under the existing regulations--and I am
talking about the resolutions both from Interior and CEQ--it
would appear as if--at least we are told by the folks from
BLM--that a minimum amount of time for any EIS these days is 5
months. And I am talking about just the comment periods and
what not. Realistically what we are told is that if they fast-
track an EIS, it might be 18 months.
They are attempting to fast-track this one. And we are
looking at 20 months. I would submit that particularly in the
context of a supplemental EIS, where we are dealing with, in
this instance, one alternative, and we have a backdrop of 3
years of analysis, perhaps there ought to be ways that we can
shorten this process.
It might be easier, quite frankly, if it were done on a
statutory basis than if it were done on a regulatory basis, in
part because we are dealing not only with CEQ regulations, but
we are dealing with now three decades of decisions that we
would confront and we would have to deal with in terms of being
able to support the regulatory decisions that might come down
with.
Let's talk for a moment about whether or not NEPA actually
stops projects. Professor Dreher, I think, makes a very valid
point when he explains that NEPA doesn't per se say that I can
go out, file a lawsuit, and even if I win that lawsuit, stop
that Federal project. But that is not really the way it can
work. And I am not suggesting that it always works this way.
What happens in the industry that I represent is people
make, on a daily basis investment decisions. They can consider
the return on the equity. And if they are looking at a system
where they face a potential delay of the example that I just
described to you, almost 5 years' time, if they are looking at
those sorts delays, then they may decide that it is
inappropriate to invest their money, their limited investment
dollars, in the United States to recover natural gas in the
United States. And they may decide that instead it is more
appropriate to go to a foreign country to invest otherwise.
And that is what happens on a relatively regular basis. And
to that extent I think we do, in fact, have projects that are
stopped by NEPA.
Miss McMorris. Thank you. Mr. Inslee.
Mr. Inslee. Thank you. I just want to make sure I
understand Mr. Goldstein, Harwood, and Martin. Do you have
evidence that a plaintiff has ever been sanctioned for bringing
a NEPA lawsuit under rule 11?
Mr. Martin. No, sir, I don't.
Mr. Inslee. Any of the other two gentlemen?
Mr. Goldstein. No.
Mr. Harwood. No.
Mr. Inslee. Well, that being said, if you were before a
court of law, I think you would be sanctioned under rule 11 for
coming before this body and arguing that there is some type of
epidemic of frivolous lawsuits being filed, when you come here
and you can't point to one single case of a judicial decision
that a frivolous lawsuit under rule 11 has been filed.
And I want to just tell you one Congressman's reaction to
this argument you're making, with no single case, where one
judge of all the thousands of lawsuits that have been filed,
hasn't found a single case, it is just stunning to me that we
listen to this argument.
Federal judges do find cases frivolous on occasion, and
they have a rather rigorous obligation of lawyers who sign a
certification when they file these complaints. And I am just--I
just am flabbergasted that you come before us and argue that
there's some type of epidemic on this.
Now let me ask you this, for these three gentlemen. Do you
think there is ever any frivolous defenses ever proposed by the
government who file answers to these cases and then are slapped
around by the Federal judges because they grievously failed to
follow the rule?
Do you think there is ever any frivolous defenses that are
proposed?
Mr. Martin. Congressman, if I might respond first to your
first point. I am not here to suggest to you that the lawyers
that I have seen on the other side of litigation that I have
defended have filed frivolous lawsuits.
And I am not prepared to say that I have not testified to
that. And, in fact, I don't think that is accurate.
If your question is, has there been an occasion when a
defendant has done something frivolous in defense of a NEPA
statute, I don't know what the answer is.
Mr. Inslee. Let me ask you this. There is this kind of
image that plaintiffs are around there filing with a shotgun
approach these things to stop the American economy and bring it
back to some kind of Stone Age situation. That is the image
that a lot of folks try to create.
My impression in reading the litigation that does exist
under NEPA, and obviously we would like to eliminate that
litigation by getting the Federal Government to follow the law,
and my impression is that a significant of the majority of
cases filed against the government are successful.
I look at the litigation up in the Northwest, probably 70,
80 percent of it is successful because the courts conclude that
the Federal Government did not follow the law.
Is there any sort of batting average that exists to
indicate that my perception is inaccurate? Does anyone have any
such objective information?
Mr. Harwood. I don't have any specific information of that
particular point. But I do want to take issue with the term
``frivolous lawsuit''. I never used the word ``frivolous'' and
I don't want to be characterized as somebody who did. I believe
that NEPA is a good and just law and that it is something that
is worthwhile and desirable.
There have been a number of lawsuits that--and I am not an
attorney, so I am not going to get into case law because that
is not my forte. I am a front line--almost first provider of
NEPA services--extension of Federal staff as a private sector
consultant.
What I have seen are lawsuits that attack process because
they don't like the outcome of a decision.
Mr. Inslee. Do you have a----
Mr. Harwood. It is not frivolous in any way. It is a just a
difference of opinion.
Mr. Inslee. My question is do you have any objective
assessment that you can give to this Committee that suggests
that the batting average of plaintiffs is less than 50 percent?
Mr. Harwood. I am happy to report that in the work that we
have done, that we have been unanimous in defending against
lawsuits.
Mr. Inslee. Great. Do you have any objective evidence about
the experience across the country?
Mr. Harwood. That is not my forte.
Mr. Inslee. Let me just tell you that I am working on the
assumption right now that--and, fortunately, plaintiffs win
most of these cases, because unfortunately most of the cases I
have even seen filed the government fouled up. And to come in
now and sort of say, well, the plaintiffs are winning most of
these lawsuits, and as a result of that we should take away
their ability to file them, to me doesn't appear to be the
right approach.
To me, a better approach is to work to find a way that the
government can follow the law so we don't have to end up in
these lawsuits. And I have--is there any suggestion from any of
you on how we can accomplish that?
Mr. Goldstein. Well, I would like to briefly respond, and I
don't think--at least--and I would also like to mention that,
you know, I didn't use the word ``frivolous'' in my oral or
written testimony. And I didn't mean to infer under rule 11
that any of these things are frivolous, and also that there are
instances--and I believe that what you're referring to, if
plaintiffs are successful and in instances where NEPA
litigation is brought in the early stages of a project, in some
cases it might be best for everybody, because then the project
will take a different course or a different project or
alternative will properly be considered.
But in the experiences that ARTBA has had where a lawsuit
has been filed 4 years after construction is begun, and then
halted construction for an extra year, and so there you have a
half completed highway project which is bad for the
environment, bad for the economy.
I think the process changes we are suggesting, such as
alternative dispute resolution, possibly expansion on the front
end of the public comment period, these are all things that
would raise these issues at an earlier point in time. And if
indeed litigation is the end result, at least it occurs earlier
so that it doesn't provide as much delay when a process is
already begun.
Mr. Inslee. If the Chair would allow one follow-up
question.
Mr. Inslee. If the Chair will allow me just one follow-up
question in response to what Mr. Goldstein said.
I'm holding your question, and it says, quote--this is
testimony by Nick Goldstein, November 17, 2005 on behalf of the
American Road Transportation Builders and Association. It says,
quote, ``The area of the NEPA process which would yield the
greatest reduction in project delay is frivolous and malicious
litigation which subverts the NEPA process,'' close quote.
Now, are you retracting that testimony, or is there
something I don't understand?
Mr. Goldstein. No, I'm not. And actually, if you will
notice, I didn't quote rule 11. And I believe ``frivolous'' can
be used in a context where it's not invoking rule 11. But some
of this litigation, when it occurs years after a project has
already begun and years after construction has begun, after
environmental impact statements have been gone over and have
been discussed with the public and with agencies, after
projects have already begun and then litigation is brought up
between 4 and 6 years hence, then by some parties I believe it
could fairly be characterized as malicious or even frivolous.
But not in the rule 11 context. And please don't--I did not
mean to infer that rule 11 has been violated in my testimony,
which is why I didn't cite to it.
Mr. Dreher. Mr. Inslee, if I could just say one thing. I
mean, with the prime example that Mr. Goldstein has offered
with what amounts to frivolous but perhaps not frivolous
litigation, is a case in Las Vegas involving a road in which
the plaintiff's allegation is that the Federal agencies
involved never considered the impact of air toxins emitted by
cars on elementary school children in schools adjacent to the
proposed expanded highway. They never thought about the impacts
on the public health of children.
Now, if that's not an issue that NEPA ought to consider, I
don't know what is. And it's true, they never considered it.
And, moreover, the case was brought 2 years before the agency
itself said we intend to let contracts for construction, 2
years before the agency said we will let contracts for
construction.
Finally, it was settled with an agreement to put air
monitors in these schools and to try to actually do things like
put emissions controls on diesel buses. So it was settled in a
way which would actually protect school children. I think
that's a success story for the American public.
Mr. Inslee. Thanks, Madam Chair, for your courtesy.
Mr. Yost. Mr. Inslee, if I could also briefly respond to
what you had said. It seems to me that your underlying
assumption--which nobody has rebutted on this panel--that since
a substantial portion of NEPA litigation is successful on the
part of plaintiffs shows that there are failings on the part of
agencies, and the Chairwoman's concern--which also has not been
rebutted by anybody on the panel--to the effect that the fear
of litigation itself has impacts.
But both of those can be addressed by measures to ensure
that the Federal agencies are doing better jobs of implementing
NEPA, that they are devoting the resources necessary to do the
best job possible, that they are devoting the legal resources
to see that they are bulletproofing their documents to the best
extent possible so as to have defensible documents in court.
And so insofar as there is validity in both of your
concerns, I think the answer is the same answer.
Mr. Inslee. Thank you.
Miss McMorris. Mrs. Drake.
Mrs. Drake. If I could, just to follow up on what we were
talking about before when we talked about TEA-21. I just wanted
to ask Mr. Goldstein, what about the new highway bill? Do you
believe that what's in the new highway bill, these type of
provisions are appropriate, or do they weaken NEPA?
Mr. Goldstein. No. I actually think that they are entirely
appropriate and could provide some very useful guidance for the
Committee, particularly the statute of limitations, the 180-day
statute of limitations. And also some of the--and I think
what's more universally agreed upon on this panel are some of
the recommendations for streamlining projects that can be found
in the transportation bill; requiring agencies to speak
together and to conduct all their reviews beforehand so that
you are not conducting review A and then review B and then
review C, but coordinating them among the agencies. This could
cut years off of the process for projects.
Mrs. Drake. Madam Chairman, I just want to say for the
record, I didn't hear people talking about frivolous lawsuits
across the Nation. What I've heard people talking about are
delays that are caused because people use NEPA, just like we
heard testimony from an environmental group in Norfolk that
said this is how we use NEPA, and what we just heard Mr.
Goldstein read today. And so I think that's our concern, is not
frivolous lawsuits, but lawsuits that are entered simply to
cause a delay. And then we don't know the impact of people--I
think Mr. Martin mentioned it--who just stop. You know, they
can't afford to continue doing this. Or the people that end up
going to another nation to open their business because they
know in 18 months they can be up and running rather than going
through all of this.
So thank you, Madam Chairwoman.
Mr. Martin. Madam Chairwoman, if I might just elaborate on
that just briefly. Let me give you an idea of some of the
impacts of a delay of the nature that I just described. And at
the risk of focusing on that which I am most familiar with,
i.e., the case that we're litigating at this point in time, we
have affidavits that were filed in this case that deal with
this particular injunction. They talk about as much as an $18
million loss for a particular company in northern Wyoming that
will not be able to access its Federal leases. Now, when I'm
talking about an $18 million loss, I'm not talking about a loss
to BP or Shell or Marathon or one of the large producers of oil
and gas in the United States; I'm talking about a relatively
small company in Sheridan, Wyoming with 19 employees. This is
very significant for companies like that.
I'm aware of an individual in the oil and gas business who
had to give up on a project because of a NEPA lawsuit and a
NEPA injunction. And, yes, it's true; it may well be something
that is only a delay; it's not something where we have a
statute that says you must stop that project and you are not
allowed to go forward with it. But the reality is that for
businesses who are concerned about these investments, a delay
of this nature can be the death nail to a project.
Let me add just, you know, again to talk if I may about the
litigation with which I'm familiar. We had projections,
affidavits that were filed, where we have estimates of roughly
$6 million in lost tax revenues and government royalties that
were occasioned by the delays that I'm speaking of. So, in
fact, these can be significant impediments. And, by the way, I
don't think they are necessary impediments. I share my old
friend Mr. Yost's view that, in fact, there are ways that we
could simplify and clarify this process so that we wouldn't
lose the essence of NEPA but perhaps what we would do is avoid
these delays that are so hard on companies and, frankly, hard
on communities and States as well.
Miss McMorris. OK. I will come back to you, Mr. Udall. Are
you ready to go? OK.
Mr. Tom Udall. Yes, Madam Chair. Thank you very much.
Mr. Dreher, in your testimony under--I guess on page 10
under section 5, you have a section titled ``Reforms to Improve
the Act's Implementation.'' could you talk a little bit about
the first one under there of making mitigation promises
mandatory?
Mr. Dreher. I would be happy to. And I that's something
that there's some agreement with on this panel. I mean, one of
the key aspects of NEPA is that it encourages agencies to look
at ways that they can moderate their impact on the
environmental. That's one of the key points about alternatives
analysis: Look for better ways to accomplish their purposes
with less impact. And when agencies find ways, particularly
when they find mitigation that would appear to reduce impacts
to the point where they are publicly acceptable, it will help
the project get approved. And then, moreover, it may even mean
that they don't have to do a full EIS; they issue a FONSI, if
you will.
The problem is that a lot of times Federal agencies don't
follow through on that mitigation. There aren't really good
studies on this in the NEPA context. There are pretty good
studies in the 404 context. The Corps of Engineers, it turns
out, rarely actually implements and enforces mitigation
requirements for its 404 permits, leading to an 80 percent loss
of wetlands rather than a net gain. And the problem is,
therefore, that there is a hole in the NEPA bucket. The public
thinks a project is going to be OK and they think that
mitigation is going to be effective, and it doesn't get done.
Now, agencies can as a matter of internal practice, without
any need for congressional direction, establish rules saying
that they will make mitigation promises binding, they will put
them as part of the project to begin with, they will require
them to be funded, and that they will require project officials
to actually carry that mitigation out and monitor it. The
Department of the Army has done that, and I commend them for
that. They have actually taken responsibility for mitigation.
And I think every agency ought to do that. Mitigation is so
important to the American public and to the purposes of NEPA
that it shouldn't be left in the lurch.
Mr. Tom Udall. And you also hit on the second thing that I
wanted to ask about, is the monitoring. Could you--you
mentioned it there, but you have it as a whole section, require
monitoring of project impacts. Could you talk a little bit
about that?
Mr. Dreher. Well, the problem about monitoring, of course,
goes to the very issue of whether or not agencies are--the
impacts of their actions turn out to be what they predict when
they issue an EIS. NEPA should be a living process; I think
Chairman Connaughton thinks that, I think Mr. Yost thinks that.
And one of the key things you need to do is to find out if the
real impacts on the ground are the ones you predicted. And if
they are more than that, you may want to take additional steps
to mitigate them. If they are less than that, it may teach you
that in fact you are confident that your processes are working
well.
So monitoring is essential to validate the whole NEPA
process. But agencies, as you might imagine, with limited
funds, find it the last priority. If they finish an EIS and
they get approval to build a project, they go forward. And I
think everybody involved thinks that more monitoring is
necessary. CEQ has been asking for this for decades.
Mr. Tom Udall. Thank you. And let me thank the entire panel
for your testimony. I think there was very valuable testimony
today and I think really helps the Task Force. Thank you very
much.
Mr. Harwood. Mr. Congressman, I would just like to second.
And one of the things that Mr. Dreher and I do strongly agree
on is the monitoring the compliance of mitigation commitments.
And I think I cited in my written testimony an example of where
what became a centerpiece of environmental consideration for a
new headquarters project ended up, through the construction
process, was not retained. And as someone who takes great pride
in predicting the future in terms of writing environmental
documents, when that future does not come true, it is very
disappointing. So I think ongoing mitigation, monitoring and
oversight, and compliance ensuring measures are very needed.
Miss McMorris. Good. Thank you. Just for everyone's
information regarding these rule 11 frivolous lawsuits, there
was some concerns raised today, some questions asked, and we
are going to try to find out some more information and get some
more background so that--for the Task Force's information.
Mr. Tom Udall. Madam Chair, on that issue, are you going to
tell the panelists a period of time of keeping the record open
on the issue of them putting anything in?
Miss McMorris. Yes. Definitely.
Mr. Tom Udall. On this rule 11 issue. Thank you.
Miss McMorris. It is true that we have heard the comments
about resources to agencies as we've been at other places
around the country. I think somehow we have to figure out a
way, though, that it is money well spent, too. We've also heard
where it's not just a matter of how much paper, how many--you
know, how much paper you fill out or how many--that's not the
measure. And it's a challenge to figure out a way to actually
end up with a better document in the end, not just a larger
document. So I hear what you are saying. But just recognize I
think we need to take it a step further and figure out how we
can actually set up the incentives so that it's a better
document ultimately.
I wanted to ask Mr. Harwood specifically, just because you
have the 20 years of experience with NEPA and the NEPA-related
documents, if you could just shed some light on what changes
you have seen in 20 years. Because part of the confusion, I
think, we hear--I've heard from agencies that NEPA's
implemented differently among the agencies, which I can imagine
as, when you are trying to put together a project, that causes
confusion. The number of lawsuits through the years, some
probably have helped define; some have I think ultimately
caused more confusion. And I just wanted you to speak to how
the documents have changed over the last 20 years and what
you've seen as far as implementation of NEPA.
Mr. Harwood. Thank you. That's actually an excellent
question. Like the others here, one of the things that's
happened is the documents have gotten longer, they've gotten
more extensive. In many respects they've gotten better. I think
we've gotten a little more focused on core issues and the
mitigation measures that reduce impacts below a level of
significance. I think the agencies have gotten more cautious,
at the same time probably related measures, agency expertise
with respect to NEPA, has gotten a lot less rigorous. There's a
lot less rigor in terms of staff awareness and ability to use
NEPA to make decisions. So there's less training, it appears,
to staff. I don't know that for a fact, but that's what it
seems like. They seem less prepared to deal with NEPA, and that
makes them a little bit more cautious. And that leads to some
of the longer documents where you are not focusing on the core
issues, the ones that are addressed at scoping or the ones that
you know through coordination with resource agencies are the
key kind of things to focus on.
There have been some attempts to shorten documents by
trying to dismiss and eliminate resource disciplines that
aren't the focus of the document, but I think that's--the
length of time, the length of the documents is probably the
biggest problem.
And it's unfortunate that the other Congressman has left,
but we have seen more challenges by citizens who end up not
bringing lawsuits necessarily, but more threats of lawsuits.
And I'm not getting into rule 11. I don't really know what that
means. I'm not interested in that. I'm interested in--I don't
represent environmental groups or private sector. I represent
and work as an extension of Federal staff. So I felt like I
should be sitting more in the middle of this table. And that
balances what we are always trying to do, and I think that the
ability to work with the Federal agencies really depends on the
agency and on the individuals involved. And there are some
clear, dedicated, wonderful Federal employees that are really a
treasure to work with. And I think those are the ones that we
like to work with. But it's--they're few and far between. And I
think that really gets to the heart of what we are talking
about: a place to appeal to another level prior to intervention
or legislation, an administrative level where--and certainly
the Department of Justice is one way to do that prior, because
they would be part of a defense of a NEPA document. But we
think, really, CEQ can nip a lot of things in the bud. We've
found that to be the case in the past, and we kind of strongly
support them as an independent agency, a more robust and well-
funded agency.
Miss McMorris. Thank you.
Mr. Dreher. Madam Chairwoman, at the great expense of
delaying this, can I just point out one single fact? CEQ has
one FTE devoted to NEPA. If there is one thing that the agency
needs, it's more resources to help the other agencies do their
jobs well.
Mr. Martin. And if I might. And I apologize, and I
recognize that this is more elongated than any of us had
planned. But let me say that we've seen staffs at BLM have to
basically expend huge resources to do an EIS, and at the same
time they are the same people who have to process our
applications for permit to drill. So I would like to, if I can,
echo that point of view. If we could get more personnel, I
think that's something that could be very helpful to everyone.
Miss McMorris. Once again, let me say thank you to all of
you for being here, for being here for several hours. I think
all of your testimonies have been very helpful, and I
appreciate just your honest perspectives with us and your
suggestions as we move forward.
There may be other questions that the members of the Task
Force would like to submit to you in writing, and I would
appreciate a response in writing for the record. The record
will stay open for 10 days. With that, the meeting is
adjourned.
[Whereupon, at 1:35 p.m., the Task Force was adjourned.]
[NOTE: Information submitted for the record has been
retained in the Committee's official files.]