In his first week at the Department of Interior (DOI), Deputy Secretary David Bernhardt, issued an order – Secretarial Order 3355 (SO 3355) – that seeks to gut the longstanding process for engaging the public in review of complex development projects on all public lands managed by the Interior Department, including those managed by the National Park Service (which manages 80 million acres of national parks), the U.S. Fish and Wildlife Service (which manages 89 million acres of National Wildlife Refuges), and the Bureau of Land Management (which manages nearly 250 million acres of public land).
The Order acknowledges that DOI has the responsibility to manage Federal lands and resources for the public’s benefit, but asserts the checks and balances that afford members of the public an opportunity to be heard to be “impediments to efficient development of public and private projects.” This Order continues a troubling trend that prioritizes “energy dominance” over the public interest and established multiple use laws and policies designed to protect clean air and water, wildlife, recreation, and other public resources and values.
Unrealistic limitations on environmental review
The Department claims it will make the public review process simpler and more efficient. In reality, it imposes arbitrary and unrealistic limitations on all DOI environmental impact statements (EISs) and suggests similar constraints will be placed on the more commonly prepared environmental assessments (EAs).
The Order immediately imposes limitations for EISs on all DOI projects, including a page limit of 150 pages, with the exception of a 300-page maximum for “unusually complex projects.” Approval from high-level agency officials is required prior to going over these limits. These arbitrary page limits are unrealistic, as the majority of EISs are well over 300 pages in length. Only a small subset of projects requires a full-blown EIS, and those that do are often large and complex by nature. The Government Accountability Office in a 2014 report found that less than 1 percent of all analyses performed under the National Environmental Policy Act (NEPA) undergo the complete EIS process, and that these projects are likely to be “high-profile, complex, and expensive.”
Additionally, the Order sets an unrealistic target to complete all final EISs within one year. The Order calls for the lead agency to develop a timeline for the review prior to beginning the process, allowing an updated timeline as needed to account for scoping or public input. The compressed and mandatory time limitation is contradictory to long-standing regulations stating that “universal time limits for the entire NEPA process are too inflexible, Federal agencies are encouraged to set time limits appropriate to individual actions.”
These inflexible and unrealistic limitations will result in agencies cutting corners in environmental reviews, leaving less time for public participation and scientific analysis, and likely leading to unnecessary environmental harm. Agencies need flexibility to address the vastly different needs that arise from each individual project.
The Order also sets a black-box 30-day review process for a variety of products, including a proposal from each agency with target page limitations and time deadlines for the preparation of environmental assessments (shorter documents required for more common and less complex projects).
By September 30, 2017, high-level agency officials are also required to submit recommendations to help “streamline” the NEPA process. As we raised regarding a previous Executive Order, EO 13807, we are very concerned this “streamlining” effort is nothing more than an attempt to gut public participation and environmental review.
In short, SO 3355 prescribes another compressed black-box review process that cuts out the public – a favored approach by the Trump administration.
What’s at risk?
- Public, tribal, local, state and federal agency input will have less importance and impact: With a one year deadline to complete EISs, Interior Department agencies will have far less time to take the public’s input into account. Interior Department agencies will spend less time working with and considering the input of wildlife agencies, local counties, and other stakeholders. It also means consultation with American Indian Tribes will likely be insufficient.
- Federal agencies may miss key data: When encountering a significant issue – such as air quality, which requires complex modeling – agencies likely will not have the time to do new studies or fully consider existing data. An overly strict timeline for completion of environmental reviews limits the opportunity for the agency to perform multiple-year surveys, which are often helpful to understand impacts to wildlife populations and habitat, recreational use trends, economic impacts on local communities, etc.
- DOI’s review process is not transparent and will provide less opportunity for public input: DOI’s 30-day closed-door review period will undoubtedly result in recommendations to further cut opportunities for public oversight and constrain agencies’ ability to conduct thoughtful decision-making by imposing arbitrary, one-size-fits-all restrictions.
- Federal agencies will make more mistakes: Cutting corners in environmental reviews means federal agencies lose opportunities to build public support for controversial actions and are more likely to approve projects that cause avoidable harm to public health or the environment.
- Lack of transparency invites increased litigation: Short-changing key aspects of NEPA will lead to increased legal challenges and associated project delays.
A better solution
There is benefit, as this Order recognizes, for agencies to focus on the most important issues, to reduce paperwork, and to prepare analytic and efficient documents. However, these benefits must not be prioritized at the expense of NEPA’s fundamental purposes of facilitating public input and informed decision-making.
The true test of an effective environmental review is not how long it takes to complete or its page length, but whether it produces a better outcome for all affected parties. That depends on how fairly and efficiently the government addresses foreseeable impacts, responds to public input, builds trust, respect, and credibility across the range of stakeholders.
As recognized in regulation, environmental reviews are completed on a case-by-case basis for a reason. There is no one-size-fits-all approach. When necessary, environmental review processes may take several years and result in documents well over 300 pages to account for project complexities and public engagement. The DOI must fully consider a variety of impacts before turning public lands or resources over to potential harm.
Giving the public an adequate chance to weigh in is not only the law, it is also the best thing for our public lands. As seen in the controversy surrounding the Dakota Access Pipeline, expediting and undermining the environmental and public review process often leads to public outcry and injustice that could have been avoided. The public review process can be made more efficient by ensuring ample and early opportunities for public input, setting realistic timelines based on the individual project, and being strategic from the start by determining where development makes sense, considering a variety of other uses. Engaging in a thorough and transparent review from the beginning will lead to effective results and avoids inviting unnecessary harm to the public and the environment.