January 19, 2006 (Washington, DC) - Conservationists today outlined how more than half of the proposals in the House Resources Committee’s National Environmental Policy Act (NEPA) Task Force report would significantly weaken existing statutory law, including re-writing key definitions within NEPA and distorting established jurisprudence and common law.
The Republican staff of the House Resources Committee’s NEPA Task Force released a draft report of their initial findings and proposals on December 21, 2005. Despite the fact that 10 former members of the Council on Environmental Quality - representing both political parties - and more than 200 law professors have said that NEPA does not need any legislative changes, 13 of the draft proposals would amend existing statutory law. (See below for an analysis of the most significant proposed changes.)
“It is not surprising that Congressman Pombo’s committee would call these rollbacks ‘modest improvements and modifications’ given the other extreme, anti-environmental proposals that have come out of this committee in recent months,” said Robert Vandermark, Director of the National Forests Campaign at the National Environmental Trust.
Among the many proposals that would significantly weaken NEPA, some of the most serious would: 1) add mandatory timelines for the completion of NEPA documentation and only allow for occasional extensions, 2) place significant restrictions on a citizen’s ability to participate in the public process and to challenge an agency’s decision-making process, and 3) require that “reasonable alternatives” including those proposed by individual citizens or community groups, be supported by “feasibility and engineering studies,” including those proposed by individual citizens or community groups. Ordinary citizens and few organizations have the technical or financial resources to prepare such studies, where as industry often has more ample resources to do so.
Even though the report acknowledges that public participation is fundamental to NEPA’s success, the Task Force made several recommendations that dramatically limit who, when, and how the public can participate in all levels of the process. “NEPA is the best tool Americans have to learn how federal projects may affect them,” said Leslie Jones of The Wilderness Society. “It also is the best tool the federal government has to examine proposed projects and obtain public input.”
The NEPA Task Force is comprised of 22 members – 12 Republicans and 10 Democrats. The comment period on the draft report runs through February 6, 2006.
For More Information
- Read the NEPA Task Force Press Release and Report (both PDF)
- For fact sheets and reports about NEPA, go to:
A Sampling of the Added Confusion Proposed by Pombo’s NEPA Taskforce
Change NEPA to a voluntary obligation. Proposal 1.2 creates mandatory timelines for the completion of NEPA documents. If analysis is not complete at the end of this time line and no extension has been granted, the NEPA analysis will be considered complete even if no public documents have been released or public comments made. This will allow agencies to delay the NEPA process until the deadline and then declare their analysis concluded.
Tip the alternatives analysis in favor of corporate interests that can fund expensive studies. Proposal 5.1 would amend NEPA to require that “reasonable alternatives” analyzed in NEPA documents be limited to those which are supported by feasibility and engineering studies. Hardly any ordinary citizen and few organizations have the technical or financial resources to prepare such studies. Industry, on the other hand, has ample resources to do so. This change is not needed. Existing guidance already supports a common sense approach of what is practical and feasible from a technical and economic standpoint.
Restrict who, when and how the public can challenge agency decisions that impact public health and communities. Proposal 4.1 creates a series of provisions mandating when and who can appeal decisions; reverses the burden of proof from agencies to the public; and forces agencies to favor business interests in settlement agreements. On the one hand, this proposal enables an agency to ignore the absence of adequate information and science and simply wait to be sued. On the other hand, it places significant restrictions on a citizen’s ability to participate in the public process and to challenge an agency’s decision-making process. The result will be shoddy decision-making, increased litigation, and frustration from all segments of the public.
Limit the types of actions subject to NEPA review. Proposal 1.1 would redefine the term “major federal action” by limiting it to “new and continuing projects that would require substantial planning, time, resources and expenditures.” This introduces extraneous elements, such as cost and time, which disregard the core question of NEPA—does the action have a significant impact on the quality of the human environment?
Restrict an agency’s ability to consider future impacts. Proposal 8.2 would alter existing guidance and put blinders on an agency by limiting analysis of future impacts to “concrete proposed actions” rather than those that are reasonably foreseeable. Even though an action might be likely and would have clear impacts on local communities or wildlife, an agency would exclude consideration of the impacts if the project had not been officially proposed.
Create new criteria for the use of Categorical Exclusions, Environmental Assessments, and Environmental Impact Statements. Proposal 1.3 is not needed. Existing laws already provide clear direction for classifying activities for different levels of environmental review. This proposal wrongly assumes that all temporary actions produce minimal effects and violates the central purpose of NEPA by imposing a stiff burden on agencies and the public when they seek to uncover the possible environmental effects of particular actions.
Limit agencies’ flexibility to introduce new information. There is no need to amend NEPA to address supplemental NEPA documents. Existing CEQ regulations already make it clear that supplementation is only required if there are substantial changes in the agency action or significant new information relevant to environmental concerns. Instead of adding clarification, the draft report’s proposal arbitrarily eliminated a portion of CEQ’s regulations concerning when it is appropriate to supplement a NEPA analysis.
Require agencies to disregard public opinion. Proposal 5.2 mandates that agencies reject the ‘no action alternative’ if a new, vague and undefined balancing test is not met. This removes an agency’s ability to evaluate the full range of options independently and could compel a project to proceed even if it is overwhelming opposed by the public.
Introduces confusion regarding how agencies evaluate cumulative impacts. Proposal 8.1 would amend NEPA to “clarify how agencies would evaluate the effect of past actions for assessing cumulative impacts and allow “an agency’s assessment of existing environmental conditions” to serve as the “methodology to account for past actions.” This proposal is susceptible to distinctly different interpretations, one of which would run the risk that agencies minimize or ignore the impacts of prior actions.
