Missoulian Opinion: Make NEPA better, not weaker

Make NEPA better, not weaker

Jan. 15, 2006

Missoulian Opinion

SUMMARY: Key environmental law could be improved to make good decisions easier to make.

For better and worse, one law has shaped national environmental policy for 35 years. It's called the National Environmental Policy Act, more commonly known by its acronym, NEPA. Its enactment in 1970 marked perhaps the largest milestone in modern environmentalism. NEPA is based on the common-sense, look-before-you-leap idea that government agencies should consider the environmental implications of their decisions and actions, and that the public should be involved in making those decisions. This is the law that requires environmental impact statements for significant government decisions and ensures the public the right to comment on and meaningfully participate in those decisions.

NEPA is a good law but far from perfect. It could be made better, more useful and much more efficient. Unfortunately, the strongest proponents for improving NEPA happen to be critics who often sound adversarial to the law's purpose. They provoke a defensive reaction from NEPA proponents who tend to resist any reform for fear they might open the door for wholesale changes that defeat the purpose of NEPA. The result is stalemate. NEPA has been tweaked only twice, in relatively minor ways, since enactment.

A fresh opportunity is at hand to consider helpful changes to NEPA. We're not sure those changes are politically possible as long at the government is controlled by Republicans, who are perceived as hostile to environmental regulations in general. But the issue's certainly worthy of discussion and your attention. The potential exists to change NEPA to improve it, not weaken it.

A congressional task force, dominated by Republicans but including Democrats, recently completed seven months of fact-finding with a series of findings and proposed changes to NEPA. You can read their draft report online at http://resourcescommittee.house.gov/

nepataskforce.htm. The U.S. House Task Force on Updating the National Environmental Policy Act is accepting public comment on its findings and proposals through Feb. 6.

The task force has done a good job of identifying some of NEPA's problems - also at debunking a prevailing myth. Some, not all, of its recommendations are constructive.

The big myth, of course, is that NEPA makes it easy for people to obstruct progress by filing lawsuits. In fact, the task force found that fewer than 1 percent of decisions made under NEPA involve lawsuits. Even when lawsuits are filed, judges decline to issue injunctions delaying progress 93 percent of the time.

The problem with NEPA isn't so much lawsuits as the threat of lawsuits. Omissions - even more than mistakes - in environmental analysis have at times led to precedent-setting court rulings. To avoid that potential, agencies tend to err on the side of overkill in an attempt to ensure their environmental impact statements are legally bulletproof. This is what's led to what U.S. Forest Service Chief Dale Bosworth calls “analysis paralysis.” It's likely that at least half the analysis done under NEPA is useful. It's just that it's not always clear which half. The idea behind NEPA is to look before leaping - not just look instead of leaping.

The increasing complexity of environmental impact statements is reflected in their size. The House task force cited a Cambridge Scientific Abstracts analysis showing the average final EIS in 2000 was a whopping 742 pages long. It takes a tremendous amount of time, money and energy to prepare such documents - not to mention what it takes for the public to digest and comment on them. At a certain point - probably somewhere under 742 pages - an environmental impact statement becomes so dense, so complicated, that only those who are paid to read and study them do so, defeating the whole idea of encouraging meaningful public participation in decisions.

Several of the task force recommendations for change illogically involve making it harder for citizens to file lawsuits under NEPA or for agencies to negotiate lawsuit settlements. That doesn't really address the problem because there aren't very many NEPA lawsuits to begin with. The bigger problem is that NEPA doesn't make clear how much environmental analysis is sufficient. One proposed change makes more sense - making demonstrated use of “best available information and science” the standard for NEPA compliance. That would eliminate at least some of the potential to use what's unknown or unknowable to obstruct decision-making.

Another useful change would be to limit environmental analysis to realistic alternatives. Points of comparison are useful in decision-making. Everything has an environmental impact. Looking at alternative actions allows us to evaluate whether the consequences of a decision are better or worse than doing something else. But for that kind of comparison to be useful, the alternatives have to be realistic, not merely hypothetical. Otherwise, the comparative analysis is a waste.

Another proposed change aims to limit the length of environmental impact statements to 150 pages for most matters and 300 pages for the most complex projects. Setting arbitrary length limits seems counterproductive, however, if meeting them requires agencies to leave out useful or necessary information. Clarifying the amount of analysis needed and sticking to realistic alternatives, as we suggest above, are better ways of keeping EIS documents reasonable in length and complexity.

One other task force recommendation worthy of comment is enactment of regulations requiring agencies to give local interests weight when considering comments on environmental decisions. This oft-discussed “need” arises from the perception that environmental groups overwhelm agencies with mass-produced comments that drown out the voices of people directly affected by decisions. However, this recommendation misconstrues the purpose of public comment under NEPA. The purpose of public comments is to help agencies identify issues they otherwise might overlook. NEPA requires agencies to show they considered all the issues raised by the public. Nowhere does NEPA suggest the public comment process is meant as a referendum. So, in the spirit of looking before leaping, we should all want agencies to consider any and all issues, not exclude useful consideration of some factors because they are raised by someone living across the state or country.

Ideally, the procedures required under NEPA should encourage good, open decision-making. Even if following those procedures isn't always easy, the end result should be more about substance than process. NEPA should make good decisions easier to make, not harder. This isn't always the case, now, and the results too often are wheel-spinning, waste, frustration and lost opportunity.

NEPA is a good law that could be made better - not with a sweeping rewrite that undermines its essential purpose of involving the public in making decisions based on good information. The goal should be to improve NEPA, not weaken it.