True Grit: A Heap-of-NEPA lies

Monday, July 25, 2011

The significant impacts of a NEPA-less world

Imagine a government that builds a four-lane highway through Yellowstone National Park, or that turns the Grand Canyon into a regional landfill. This government does not consider the environment or the effects of its actions when making these decisions, and it does not consult with you, the American public, before taking action. The National Environmental Policy Act (NEPA) requires federal agencies to consider impacts and consult with the public on every major federal action significantly affecting the human environment. Because of NEPA, projects have a reduced risk of litigation and experience fewer delays. Some would have you believe that NEPA is nothing more than red-tape.  The True Grit is that with transparency and attention to full exploration of the issues, NEPA prevents delays.

Democracy in Action
NEPA provides the public an opportunity to discuss projects with federal agencies at many points along the path to project completion. The public includes everyone: residents, community groups, local governments, businesses, and anyone else who wants to contribute to the conversation.

For example, when the Montana Department of Transportation proposed to change Route 93 into a much larger five-lane highway, NEPA gave power to local residents to say, “Wait! There’s a way you can do this project without sacrificing our farms and wildlife habitat!” Because of NEPA the agency listened to the public’s concerns and the public gave the agency  recommendations for an improved project plan.  From this collaboration, the agency adopted an alternate design, with the public’s approval, which better addressed safety, environmental, and local cultural concerns about sprawl from the larger highway.

NEPA Prevents Delays
Agencies that properly follow NEPA procedures from the very start and involve the community and affected stakeholders reduce litigation delays. The True Grit is that NEPA is not the root of the problem. Institutions on all sides of the debate agree that the required NEPA process benefits them and the project because it reduces risks of litigation. Although turning to the courts is a legitimate method to hold the government accountable, agencies can easily prevent needless litigation delays with smart from the start mentality. 

For example, when the Forest Service received public comments on a road project in Idaho, one commenter noted a discrepancy in the project proposal that could have put an endangered species at risk! The public’s participation prevented litigation and  kept the agency from discovering its mistake mid-construction, saving time and taxpayers’ dollars. With more people checking on what the government is doing before it irretrievably commits taxpayer dollars to a project or permanently harms the environment, projects are smart from the start. When an agency properly follows NEPA environmental analysis procedures, considers public comments, and then takes action, the project can run without unnecessary delays.

Examples like this are why Bureau of Land Management Deputy Director Mike Pool recently stated at a House Natural Resources Committee hearing, “I believe any action that would shortchange the NEPA process would result in more lawsuits.”

The regulated business community also values the public participation requirement under NEPA. Tom Wray, Project Manager of SunZia Transmission Project, testified in a House subcommittee hearing that “NEPA still works.” On public participation, Mr. Wray stated that “[o]nce [the public is] made a part of the project planning and their recommendations are seriously evaluated with all other related project imperatives, the result is a better one for all involved.” 

A Brief Look at the Numbers
Certainly there is litigation challenging NEPA decisions and documents, however these challenges barely register on the chart of cases filed.  In 2009, 278,000 lawsuits were filed; only 97 NEPA cases were filed. 

Between 2001 to 2009, NEPA cases account for an average of less than a half of a percent (i.e., 0.26%) of U.S. Civil suits. Note also, these numbers only include NEPA cases that were filed, not the cases that actually went to trial that could potentially delay federal agencies. That number would be smaller still.

And lest you believe that NEPA is a tool wielded only by the conservation community, a portion of NEPA cases brought in court each year are brought by business groups or other government entities. Another significant portion of NEPA cases are brought by state, local, and tribal governments.

A Few Questions to Ponder:

  1. Shouldn’t Congress want fact checking, recommendations, and comments from the public, which very often include expert opinions?
  2. Shouldn’t agencies design smart from the start projects prior to project implementation?
  3. Don't oil and gas companies, developers and local governments also have equal opportunity to provide input and information as part of the NEPA process?
  4. Doesn’t it make sense in the United States, a country touted for its level of democracy, to have public input on all federal projects that significantly affect  the quality of the human environment?
  5. Does it make sense that some congressional members seek to shorten or waive completely the public comment period that NEPA requires?

Download the PDF version of the fact sheet
Download the NEPA graphic
Related audio file