Negating NEPA

The "Magna Carta" of Environmental Protection Faces an Uncertain Future

When Utah Governor Mike Leavitt proposed constructing a 120-mile freeway running north and south through his state, developers eagerly waited to begin digging and paving. But a few significant details bogged down their plans. As a coalition of environmental groups called Utahns for Better Transportation pointed out, the proposed freeway was to be built over a portion of the Great Salt Lake wetland where millions of birds migrating from the Arctic to South America stop to feed.

Using protective laws including the National Environmental Policy Act (NEPA), wildlife advocates challenged the planned construction in court. They argued that the Army Corps of Engineers, which maintained the authority to grant building permits for such projects, had not conducted an adequate environmental impact assessment. The planners had only taken the paved portion of the road into consideration.

"This freeway was going to damage much more than the immediate area of the road," says Lawson LeGate, the senior southwest regional representative for the Sierra Club. "And they didn’t count the fact that they’re in a boggy area and the lake rises and falls." Last September, judges in the 10th Circuit Court of Appeals in Denver, Colorado agreed that a more complete NEPA analysis of the environmental impacts of the road was necessary, sending the planners back to the drawing board.

Passed by Congress in 1969 and signed into law by Richard Nixon, NEPA has served for more than three decades as the "Magna Carta" of environmental protection in the U.S. The law—which has remained nearly unaltered—requires government agencies to prepare environmental impact statements (EIS) that publicly disclose the potential effects of projects for which they issue permits, pay for or build.

"NEPA guarantees that government decisions will take environmental concerns into account and gives the public a role in that decision-making process," says Sharon Buccino, a senior attorney for the Natural Resources Defense Council.

But a number of recent government proposals and actions that circumvent NEPA suggest that such guarantees may soon no longer exist. The Bush administration’s wildfire plan, known as the Healthy Forests Initiative, includes a proposal to waive NEPA environmental reviews and appeals for a broad category of commercial logging. According to the initiative, restoration of the forests is a priority, but "managers and local communities are too often held back by red tape and litigation."

In line with the initiative, two bills in Congress sought to exempt millions of acres of national forest land from NEPA review. The House bill would have given the public only 21 days to comment on a proposed agency action, while current regulations provide a 90-day window. Both houses of Congress rejected their respective versions of the proposal.

The scene above is near Elkhorn Mountain in the Black Elk Wilderness of South Dakota.
Sierra Club, Black Hills Group

Michael Francis, director of The Wilderness Society’s national forests program, knows the importance of public input in forest decisions. He points to a situation in which planning changes threatened to radically alter habitat in South Dakota’s Black Hills National Forest. Pointing to NEPA, wildlife defenders appealed the plan administratively. The Forest Service chief agreed with their complaints and asked for a revision.

Yet, in another recent action, the Forest Service proposed regulation changes under which the agency would no longer require environmental impact statements for alterations of existing forest plans. The new rule would also eliminate the administrative appeal process in favor of a pre-decision review process, which the Forest Service claims will speed the planning procedure. According to Susan Rieff, policy director for land stewardship at the National Wildlife Federation, these changes will essentially exempt local forest supervisors from any NEPA requirements and limit public input in developing forest management plans.

"It gives local forest supervisors a lot more discretion in environmental analysis—and they are subject to local business pressures," says Rieff. Francis agrees that the changes would create new challenges. "If you look at the new proposed forest regulations, we wouldn’t have been able to appeal the [South Dakota] forest plan to the chief and get it redone," he says.

Last year, the administration argued in federal court that NEPA does not apply to military projects in the United States" Exclusive Economic Zone (EEZ), the area of ocean between three and 200 miles offshore. To the satisfaction of many ecosystem advocates, a federal judge blocked the U.S. Navy from using high-intensity sonar systems, which may have harmed marine mammals with their loud signals.

But while oceans remain protected as before under NEPA, lands potentially affected by transportation projects do not. An executive order issued in September directed the secretary of transportation to compose a list of high-priority projects (such as highway, tunnel or airport construction) that would receive abbreviated reviews for approval. Faster does not mean better, according to environmental advocacy groups. They warn that hastening review procedures would compromise the integrity of environmental safeguards.

These recent moves by the government are not the only developments that have caused concern about the future of NEPA. In May 2002, the Council on Environmental Quality (CEQ) launched a special task force to review NEPA and form recommendations that will "help federal agencies update their practices and procedures and better integrate NEPA into decision-making." The CEQ reports annually to the administration on the state of the environment and oversees implementation of the environmental impact assessment process. But environmental groups have expressed doubt that the current administration will implement the task force’s recommendations to further NEPA’s objectives. "Despite claims of improving NEPA, government agencies are issuing policies that are undermining the law," says Maria Weidner, a policy advocate for Earthjustice.

With the CEQ report due to be released in the first half of 2003 and Republicans controlling both the Senate and the House, NEPA supporters will keep a close watch on legislation. "Looking forward, I think it’s fair to say that the Bush administration has targeted NEPA. They see it more as an obstacle to industry’s pro-development agenda rather than the critical tool that it is to inform decisions," says Buccino.

NEPA definitely has ruffled some local feathers by delaying civic improvement projects. Feelings run high in Stillwater, Minnesota, which has spent 30 years attempting to build a four-lane bridge. And, predictably, conservative think tanks support "streamlining" the process. "I don’t think the Bush administration is attacking or trying to gut anything," says Chris Horner, a senior fellow at the Competitive Enterprise Institute. "The administration is seeking to stem the continuing expansion or statutory sprawl of NEPA." According to Horner, the law unnecessarily blocks investments in beneficial projects.

Those who want to see reduced regulat

ions argue that accelerated approvals will lead to faster and less-costly construction decisions, but defenders of the environment caution that the weakening of NEPA may let development spin out of control and leave citizens without a strong voice in project planning decisions.