National Environmental Policy Act (NEPA)

and the Human Dimension

By Ric Frost, M.S. Agricultural Economics

New Mexico State University

[This was a presentation at the Western Land Use Conference]

To begin this discussion, we need to take a brief moment to understand the distribution of government owned lands across the United States . This map shows the areas controlled by some form of government and the associated agencies as seen by the shaded areas (Figure 1). The bulk of government-controlled lands are found west of the 100^th meridian.

Figure 1 – Government Lands of the United States - National Wilderness Institute, 1995.

This also indicates private and state properties potentially encumbered by what is known as a Federal Nexus. This means that no management actions or changes can occur without consulting the government agency if any permits or federal expenditures were issued on those lands, especially in cases related to the Endangered Species Act (ESA). According to public land statistics, Oregon has approximately 55.47% of the state under federal administration (Figure 2). Private control of the state is approximately 39.65% and from this is derived the bulk of economic activity. In 1997, private agricultural enterprise (38.12% of the state) generated $11.4 billion and created 152,748 jobs. This is the contribution agriculture provides to Oregon ’s economic vitality.

We need to understand that should any private enterprise or state entity accept federal funding or voluntary permit, they are encumbered by a federal nexus and will be required to consult with the issuing agency on management of the now encumbered property. This encumbrance potentially jeopardizes the economic viability of that land.

Figure 2. Oregon Land Ownership Statistics

When Congress created the National Environmental Policy Act of 1969 (NEPA) (Public Law 91-190 Sec.2), the intent was to create a structured evaluation system where federal projects could be evaluated for environmental integrity and provide a means whereby the citizens of the United States could participate in providing direction of the outcome. This is best expressed by the rationale as established by Congress:

The purposes of this Act are:

“ . . . To declare a national policy which will encourage productive and enjoyable harmony between man and his environment;

To promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man;

To enrich the understanding of the ecological systems and natural resources important to the Nation;

To establish a Council on Environmental Quality (CEQ) . . . “

This was to be the guidance framework from which all federal agencies were to evaluate their actions, including the endangered species act (ESA), and how they interacted with the human element present in the environment.

When a federal project is proposed, this begins a series of events that includes several non-federal entities including the public. The first stage is known as the environmental assessment or EA. At this point, local government entities and industry representatives are supposed to be included at the table as either joint lead agency or cooperating agency. The reason for using state, county and local expertise to evaluate impacts to the communities, rather than out of state personnel, is that local entities have all of the latest data concerning taxes, demographics, economic figures and makeup of the communities in the project area. When the general at large census data is used, as is often the case based on past experience, many factors are left out in the analysis and renders the final evaluation worthless. Recent court cases have pointed to this shortcoming and we will be discussing this later.

During the scoping period, the biodimension and the human dimension are to be evaluated. The biodimension is evaluated to determine the environmental resource health of the project area. The human dimension is evaluated to assess the custom and culture, including the economic structure, of the communities in the project area. This involves equity analysis, expected potential property takings, civil rights disportionate burden and environmental justice analysis, community social well being and cultural stability analysis. While these are not directly in the NEPA law, they are found in the endangered species act (ESA) for critical habitat evaluation, various executive orders and agency memorandums and have the effect of law.

The public is allowed to make comments on their evaluation of the project during the scoping period (of at least 60 days). If no adverse impacts are expected, then a finding of no significant impact (FONSI) is issued and a final decision is rendered provided that there is not a challenge brought forth in the court system. It is at this point in the process where the interested public or other interests, such as nonprofit groups, can appeal to the courts as a third party interest for an injunction against the project and demand further studies, thus forcing the process into what is known as an environmental impact study (EIS). An EIS requires a more detailed biodimension and human dimension studies than the EA and can take years to complete. If an injunction is acquired by the litigation, the project will be placed on hold until such time as the studies are completed and a final decision is rendered. If the injunction involves preventing activity of an economic nature, the affected private enterprise may suffer hardship and possibly may not survive the time it takes to complete the studies. This can have a devastating ripple effect through the community especially if it is rural and does not have a diversified economy as large urban areas do.

What experience has shown is that the human dimension is seldom analyzed and if it is, it is done improperly. Thus many of the claims of no significant impacts issued by federal agencies are based on incomplete analysis. When the impacts to rural communities are negated or projects of economic importance are enjoined from an appeal by a non-profit, non-tax paying special interest groups, the results can be devastating. Businesses fail, families are torn apart, those with skilled trades leave in search of survival elsewhere and the tax base of the communities erode. Soon the communities become more dependent on government handouts for survival. This eventually leads to the demise of the infrastructure and inability to provide basic services for emergency purposes as we have witnessed with all the devastating fires of the past several years. In short, this process can take years, can be extended by third party litigation and can be culturally, socially and economically devastating to the affected landowner, land users and communities!

To illustrate the custom and culture evaluation of a community, let us examine figure 4. Here we have a simplified regional economy where you have the local resource pool. This consists of the environmental supply of land, water, air and minerals. The human dimension side consists of labor, management, technology and capital. Utilizing these together constitutes the customs and cultural practices from which stable, sustainable economies are built.

This model is the basic expression of the economic integrity of all human endeavors, which Congress intended for federal agencies to evaluate and consider when they are making decisions for their various projects. Without it, we do not have trade or a viable means to sustain communities, which are the backbone of our culture.

Another illustration of the intents of the executive orders, congressional laws and agency regulations is seen in figure 5. Here we have the basic structure of evaluation broken down to show how the human dimension is evaluated for the interactions of cultural and custom. The point of this evaluation is to determine if the loss of an activity pushes that segment to an irreversible point, which may be supported for a short time and possibly, restored or will the loss of an activity push the culture to an irretrievable point of no return. The baseline of the efficiency of the macro and the micro economy is evaluated for equity. This is then evaluated to see how the change will impact the demographics and the present social structure. If the change is small, then maybe the effect upon the social structure has minimal impact and can be restored in the future. If the change is significant, then the loss of heritage, shared norms and way of life will be lost and thus the loss of the culture and supporting infrastructure will become irretrievable. When this happens, there will be no restoration in the future.

As an example, using the recent fires, many communities lost their logging culture, infrastructure and ability to manage the forests due to spotted owl restrictions. When the fires broke out, the rural communities had little to no capacity to fight back the fires and homes were lost. Traditionally these loggers were the front line people who were called upon by the forest service to help fight fires. Now when a fire breaks out, firefighters needed in other parts of the country have to be brought in. Many are under trained and do not know the area as did the resident loggers that have left the area in search of work elsewhere, thus the catastrophic fire destruction we are witnessing today.

The executive orders (EO) and memorandums related to this evaluation are:

EO 12630 Governmental Actions and Interference With Constitutionally Protected Property Rights (March 15, 1988)

EO 12866 Regulatory Planning and Review (September 30, 1993)

EO 12898 Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations (February 11, 1994) US Department of the Interior Compliance Memorandums of August 11, 1994 and May 30, 1995

EO 12988 Civil Justice Reform (February 7, 1996)

EO 13211 Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use ( May 18, 2001 )

Notice the dates are well after the 1969 date of the creation of NEPA. These executive orders were for the most part responses to the discovered inadequacies and abuses of the federal agencies whose initial missions were assigned by Congress to assist rural communities in maintaining rural community integrity.

Court cases that have evolved from these inadequacies and abuses by federal agencies are also of importance to know and understand. It is interesting that the majority of these cases originated in New Mexico with the final decisions being made in Federal courts. Let us see what the justices have said about these economic studies and the human dimension concerning agency treatment of NEPA and the intent of Congress when they created the ESA:

RELEVANT ESA COURT CASES

Catron County v. USFWS (10th Cir. 1996)

“ . . . the fact that the FWS says that no real impact flows from the Critical Habitat Designation does not make it so. . . “

“ . . . Congress intended that the Secretary comply with NEPA when designating critical habitat under ESA when such designations significantly affect the quality of the human environment . . . “

Middle Rio Grande Conservation District v. Babbitt ( N. Mex. Dist. Ct. 2000)

“ . . . completely ignoring human and economic impact directly counters the intent of the Endangered Species Act and is an unacceptable approach to fulfilling ESA responsibilities. . . “

“ . . . Bennett v. Spear, supra. The Supreme Court has found designation of critical habitat a primary means of advancing conservation of a species and has viewed economic considerations an essential ingredient of critical habitat determinations . . . “

N. MEX. CATTLE GROWERS ASSOC. v. USFWS (10th Cir. 2001)

“ . . . Congress clearly intended that economic factors were to be considered in connection with the Critical Habitat Designation . . . “

“ . . . we conclude Congress intended that the FWS conduct a full analysis of all of the economic impacts of a critical habitat designation, regardless of whether those impacts are attributable coextensively to other causes. Thus, we hold the baseline approach to economic analysis is not in accord with the language or intent of the ESA. . . “

ARIZ. CATTLE GROWERS' ASSOC. v. USFWS, BLM, and

SOUTHWEST CENTER FOR BIOLOGICAL DIVERSITY (9th Cir. 2001)

“ . . . there is no evidence that Congress intended to allow the Fish and Wildlife Service to regulate any parcel of land that is merely capable of supporting a protected species . . . “

“ . . . it is arbitrary and capricious to issue an Incidental Take Statement . . . when the Fish and Wildlife Service's speculation that the species exists on the property is not supported by the record . . . “

“ . . . Where the agency (USFWS) purports to impose conditions on the lawful use of that land without showing that the species exists on it, it acts beyond its authority . . . “

A CONCEPT TO CONSIDER

Based on the laws, regulations and these court cases pointing to the intent of Congress in establishing NEPA and the ESA, it is clear that the human dimension custom and culture requires federal agencies to examine specific elements that are:

Essential to the conservation of the human species and;

Which may require special management considerations or protection.

How is This Determined?

EQUITY ANALYSIS

PROPERTY TAKINGS

CIVIL RIGHTS

DISPORTIONATE BURDEN

ENVIRONMENTAL JUSTICE

SOCIAL WELL BEING

CULTURAL STABILITY

Do not these elements constitute POTENTIAL HUMAN CRITICAL HABITAT? If we are to give wildlife such considerations, do not the concepts of equity and justice extend to humans as well? Do not cultures and customs of inhabitants of the land deserve as much due process?

So what can you do? To begin with,

DOCUMENT, DOCUMENT, DOCUMENT!

IF ITS NOT DOCUMENTED, IT NEVER HAPPENED!!!

Date all documents, field notes, livestock counts, photographs, expenses, etc.

Maintain a daily diary:

Record all consultations

All phone conversations

All coordination meetings

All visits

Names, positions and phone numbers of all personnel involved

Demeanor of personnel involved

Maintain orderly, dated files

Maintain professional and businesslike manners in all personal, written and oral communications

Carefully review all information received

Conduct and document a thorough history search utilizing:

County records

Government. records

Whole farm & ranch production records

Utilization maps

Long-term range trend data

Species composition records

Obtain relevant handbooks and publications:

Taylor Grazing Act

BLM H-4160 Handbook

All documents relating to the proposed action