National Environmental Policy Act Is 'at a
Crossroads'
The
35-year-old law gives citizens input in the review of land-use proposals.
Those who say it slows progress are trying to curb its power.
By Tim Reiterman, LA Times Staff Writer
July 7, 2005
SAN FRANCISCO — After the National Environmental Policy Act was adopted 35
years ago, the law led to a major design change in one of the nation's most
ambitious energy projects — the 800-mile pipeline that carries oil from
Alaska's North Slope.
As a result of the often contentious ecological review, most of the pipeline
was laid above ground so it would not damage the fragile permafrost, and
built in a way that would not block the movement of caribou herds.
More recently, the law assured San Franciscans a voice in the conversion of
one of the city's most prized historic sites — the old Army Presidio —
into a national recreation area designed to be self-supporting and divided
into open space, public use areas and commercial offices, including a
recently opened 23-acre digital arts center built by "Star Wars"
creator George Lucas.
Now, however, NEPA is facing strong challenges from the Bush administration,
Congress and business interests who say the law has been holding up progress
on a number of fronts, among them building highways, preventing forest fires
and drilling for oil and gas in the Rocky Mountains.
The House version of the pending energy bill would exempt many oil and gas
exploration projects from NEPA review. And a congressional committee is
holding public hearings with the stated intention of changing how the law
works. To expedite a wide range of projects, the administration and
lawmakers have exempted some categories of federal actions from NEPA
assessments or limited their scope.
The federal government takes an estimated 50,000 actions each year —
including building campgrounds in national forests and plotting the routes
of superhighways. And, to varying degrees, every one of those actions
involving federal land, funds and permits is subject to scrutiny under NEPA.
The three-page statute, known as the Magna Carta of environmental law,
required the government for the first time to involve the public in
decisions that could harm natural surroundings or disturb neighborhoods. The
law has been imitated by other countries and many states.
But its critics — including mining, timber and energy companies,
developers, farmers and ranchers — have long chafed under the costly and
protracted environmental reviews that the law often sets in motion.
"NEPA is at a crossroads," said Bradley C. Karkkainen, a
University of Minnesota law professor who is an expert on the statute.
"We could end up undoing 35 years of progress or [providing] a NEPA
that can address the environmental challenges of the 21st century. It could
go either way."
Along with the Endangered Species Act, the Clean Water Act and other
environmental laws, NEPA was adopted after the catastrophic 1969 oil rig
blowout that blackened Santa Barbara County beaches and killed thousands of
seabirds.
For the first time, the law guaranteed the public information and a forum on
many matters directly affecting their lives. "It affects the air they
breathe, the water they drink, their recreational resources and the views
they enjoy," said Lucy Swartz, a former government lawyer who now
serves on the board of the National Assn. of Environmental Professionals.
However, those calling for changes to NEPA say the law has made it far too
easy for environmentalists and others to mount legal challenges over
technicalities. "It has been used as a stick in the spokes of the
wheels of progress," said Russ Brooks, an attorney for the property
rights-oriented Pacific Legal Foundation.
The number of NEPA-related lawsuits averaged 108 annually between 1974 and
1997, but rose to 137 in 2001 and 150 in 2002, according to a study by the
nonprofit Environmental Law Institute in Washington. The jump, the study
said, may have been prompted in part by Bush administration actions that
environmentalists viewed as harmful.
One of those actions was President Bush's 2002 Healthy Forests Initiative,
which called for thinning forests to reduce wildfire danger and exempted
many logging projects of 1,000 acres or less from review. Environmentalists
argued that without NEPA scrutiny, timber companies would be free to cut
down the largest, most commercially valuable trees, which are often the most
fire-resistant.
The energy bill passed by the House would insulate certain oil and gas
drilling projects on public lands from NEPA reviews. Although the Senate
version of the bill does not include the exemptions, conservationists are
concerned that the House exemptions will resurface in a final bill.
One exemption would eliminate reviews of the effects of water discharges
during extraction of methane from coal beds, and that is of particular
concern to ranchers and farmers in the Powder River Basin of Montana and
Wyoming.
The reviews are critical to their livelihood, said Kevin Williams of the
Western Organization of Resource Councils, because the gas exploration
process pulls water out of aquifers used by farmers and ranchers, and the
discharges containing salts can work their way into irrigation supplies.
"They are pumping out a tremendous amount of water in the region that
could affect the agricultural economy, the tourist economy, the fisheries,
you name it," said Williams, whose 9,500-member organization includes
hundreds of farmers and ranchers.
Proponents of the law fear that a House Resources Committee task force
recently convened by Chairman Richard W. Pombo (R-Tracy) is setting the
stage to gut the law. Pombo and Republican colleagues proposed the
exemptions now pending in the House energy bill. The task force is
conducting public hearings around the country to review NEPA.
"Over the past few years, it has been death by a thousand cuts,"
said Neha Bhatt, a Sierra Club representative in Washington. "We see
these hearings as an attempt to build a bad public record and come back with
a big hit overhauling the existing law."
Pombo said the accumulation of requests for exemptions for energy,
transportation, defense and domestic security projects signaled the need for
a thorough reexamination of the law. "Everyone is complaining about the
way NEPA works," he said.
James L. Connaughton, chairman of the White House Council on Environmental
Quality, said the law generally was working well, but that the
administration was trying to accelerate some environmental assessments
without sacrificing protection.
During the first congressional task force hearing, held in April in
Spokane, Wash., Utah mining executive Luke Russell called NEPA "a
monster, devouring millions of dollars and years of time needlessly on
redundant studies, conflicting requirements and wasteful litigation."
In 1992, Russell said, his company had to spend $11 million on an
environmental impact study for a gold mine on federal land in Alaska —
and by the time federal agencies approved the project, the price of gold
had dropped so far that the project was not economically viable. After the
company revived the project five years later, additional environmental
assessments cost $6.7 million more.
Yet the number of full environmental impact statements required under the
statute has declined from 2,000 to 3,000 a year in the 1970s to about 500
annually, according to Karkkainen of the University of Minnesota.
Unfortunately, Karkkainen said, "the general thrust of the
administration's proposals is not to produce information more efficiently
but to produce less information…. We should be more efficient, not less
informed."
The challenge to reforming NEPA, experts say, is accelerating the review
process while preserving what the law is supposed to do: determine and
disclose effects, often deterring harmful projects.
"Anyone proposing things that are environmentally dubious knows they
have to go through a big process and environmental disclosure," said
John Leshy, a professor at UC's Hastings law school and a former attorney
in the Carter and Clinton administrations.