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Experts Say The Magna Carta Of American Environmental Law Is Under Siege
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Here is a common pattern, Preso of EarthJustice says: an agency, coming under political pressure will issue a decision that does not address issues consistent with the precautionary principle. Then a group will sue, a judge will agree that a decision was made arbitrarily and capriciously and so the agency must go back to the drawing board.
January 12, 2020
Experts Say The Magna Carta Of American Environmental Law Is Under Siege
Special Report: The National Environmental Policy Act benefits the lives of all Americans every day. So why is the Trump Administration weakening It?
The Berkeley Pit in Butte, Montana, headwaters for one of the largest and most costly Superfund cleanup sites in America and product of unregulated industry. The rising water in the pit, which rests astride Butte, is so toxic with the mining wastes of copper that migratory waterfowl dies when landing upon it and drinking its lethal stew. With the White House relaxing NEPA regulations pertaining to clean air, water and carbon emissions, could it open the gate for the controversial Pebble Mine in Alaska? Photo courtesy US EPA.
EDITOR'S NOTE: The National Environmental Policy Act turns 50 this year. A previous Mountain Journal overview of NEPA is updated here in recognition of the anniversary and in the wake of sweeping new changes to NEPA announced by the Trump Administration in January 2020. As Interior Secretary David Bernhardt stated, "This proposal affects virtually every significant decision made by the federal government that affects the environment." We encourage you to print off a copy of this story, because of its length, for easy reading at your leisure.
By Todd Wilkinson
An Introduction To NEPA And Why It Matters
When navigating the wild backcountry or stepping into a busy street, do you think it prudent to, metaphorically speaking, look before you leap?
In business and government, especially with public land management decisions applying to more than 640 million acres of lands American citizens own and which private commercial interests use, this concept is also known as the precautionary principle. It is all about assessing the risk of doing something in order to avoid injury, illness, death or other costly unintended downsides to people and environment.
In the Greater Yellowstone Ecosystem, the wildest complex of public lands in the Lower 48 distinguished for its large wildlife populations found nowhere else in such concentrations, it means trying to better assess the potential impacts of particular actions that can ripple at the landscape level. Not merely individual activities done in isolation from one another, but grasping their cumulative effects and basing scrutiny on the best available science.
The Greater Yellowstone Ecosystem would not be in the condition it is today without previous generations heeding the wisdom of the precautionary principle, notes Robert Keiter, the Wallace Stegner Professor of Law at the University of Utah's S.J. Quinney College of Law. Keiter also is founding director of the Wallace Stegner Center for Land, Resources and the Environment.
Keiter has, over the years, examined public policy in Greater Yellowstone and he is nearing completion on an analysis of threats facing the ecosystem—what has worked in terms of protection and what has failed.
Only in the mire of the current political climate could it become vogue to commit less than due diligence in scrutinizing risk by hobbling the ability of government agencies to be responsive, or to instruct those in charge to simply look the other way and hope for the best, a group of experts contacted by Mountain Journal say.
Part of the precautionary principle involves placing a burden of proof on those who are proposing to exploit public lands for personal benefit and making them demonstrate that such uses will do no serious harm or at least identify implementable options for minimizing or mitigating their impacts.
Claiming ignorance—that one didn’t know better—was a common after-the-fact argument often made in past but it came with a tremendous toll. To invoke the look before one leaps analogy again, it makes as much sense as a mountaineer rappelling with a fixed length of rope over an unexplored cliff yet not knowing if it will deliver you to the next ledge.
Just as political tribalism divides the nation, so too is there a chasm of conflicting opinions with regard to environmental regulation. Is it necessary? Is existing environment policy too burdensome on business? Is it effective in preventing disasters? Is it saving or imperiling species? Does it adequately hold to account those who abuse the public trust and abide the expectation that corporations will be socially responsible? How does it affect the rush to create prosperity in the here and now while considering what's best for people and the environment in the future?
Now, the federal code touted as being the most forward-thinking in human history, NEPA (pronounced nee-paw), is being re-purposed. For those who value the health of people and nature, the changes being implemented through executive action by the Trump Administration are considered as heretical as proposed gun control regulations are to the National Rifle Association.
A Modern Law That Made Environmental Protection
A Pillar Of American Democracy
In federal law, the tenets of the precautionary principle are not abstract. They were actually codified when a group of politically moderate lawmakers in the late 1960s came together in "the radical center" and placed a new law on the desk of a Republican president.
On January 1, 1970, Richard Nixon signed the National Environmental Policy Act which compels land managers to be accountable, transparent (not making deals in backrooms), to let sound peer-reviewed science be a guide, to acknowledge in a forthright way what they don’t know, and to not do things by the seat of their pants or at the whim of political pressure, cronyism or intimidation.
Even on a Department of Energy website today, one that hasn't yet been scrubbed by the Trump Administration, NEPA is referenced as “the Magna Carta” of environmental laws—the one that laid down the foundation, in fact, for all modern environmental laws in the land; laws that have safeguarded the health of millions of people, brought species back from the brink, ensured that water flowing from land through river, lake and wetland to the tap be safe to drink and air good to breathe, that kids weren’t ingesting lead paint or being exposed to toxins, that acid rain isn't killing forests and lakes, and that chlorofluorocarbons aren't thinning Earth's "ozone layer" that protects all life from dangerous radiation levels coming from the Sun.
The greatest role of NEPA may be yet to come—with confronting and mitigating the impacts of climate change, including predicting the costs of inaction now versus the costs borne by future citizens that could be exponentially larger.
The official White House Council on Environmental Quality's website uses the Magna Carta metaphor in reference to NEPA. To those unfamiliar with what the original Magna Carta was, it could be considered England's first version of a constitution guaranteeing citizens rights from tyranny and abuse by government and others in power. NEPA then functions as a sort of Bill of Rights for the environment.
The Council on Environmental Quality, headquartered a stone's throw away from the White House, has served a vital advisory role in environmental decisions rendered by US presidents. It was created by the same legislation that created NEPA and the US Environmental Protection Agency. The latest executive decision made by President Trump to weaken NEPA on behalf of extraction industries was vetted by CEQ Chairman Mary B. Neumayr.
Along with Neumayr and others, the President stood in front of a portrait of Theodore Roosevelt half a century after NEPA became law and said, “The United States will not be able to compete and prosper in the 21st century if we continue to allow a broken and outdated bureaucratic system to hold us back from building what we need: roads, the airports, schools — everything right now."
Theodore Roosevelt, the rough rider, is featured in this painting by Tade Styka that is in the White House. President Trump considers himself an environmental president like Roosevelt but what would TR make of him?
Trump's executive order was described by Interior Secretary David Bernhardt, who earlier had been a private sector attorney for resource extraction companies that considered NEPA too onerous, as the most sweeping overhaul of environmental regulations in years. Specifically, NEPA's overhaul pertains to environmental reviews of proposed industrial actions, be it oil and gas drilling, mining, building of highways, activities pertaining to the waters of the US and virtually any infrastructure project that has a connection to federal public land and US intersection with oceans and air.
"For those of you that don’t practice in this area, let me tell you: This is a really, really big proposal," Bernhardt said at the President's side. "This proposal affects virtually every significant decision made by the federal government that affects the environment. And I believe it will be the most significant deregulatory proposal you ultimately implement."
That's significant. The New York Times published a story at the end of 2019 titled "95 Environmental Rules Being Rolled Back Under Trump." The tally continues to grow.
Bernhardt justified NEPA reform by saying, "Our firefighters depend on the speed of environmental review to do our treatments in the forest. Our ranchers, which are here, depend on the speed of our environmental review to know whether or not they’re going to have grazing opportunities next year. Our farmers need to know that they can depend on our decisions, so that they can know that our water operations are likely to be consistent and secure. And what you’re doing here is a very big thing."
Bernhardt claimed that NEPA has caused thinking about environmental protection in America "to go backwards" the past 40 years—a claim challenged by the most prominent Republican who was the first to implement the law. Still, NEPA has been derided by some as "a law built for paper pushers" that hobbles agencies with "paralysis by analysis."
"For those of you that don’t practice in this area, let me tell you: This is a really, really big proposal. This proposal affects virtually every significant decision made by the federal government that affects the environment. And I believe it will be the most significant deregulatory proposal you ultimately implement." —Interior Secretary David Bernhardt said while standing next to President Trump
Those who are currently behind pushing reforms—it is not known who the point people are—boldly assert without offering an extensive explanation that deregulation will result in a $3,100 income increase for American households. (Read all of the remarks offered at the President's NEPA event by clicking here).
Most poignantly, the President's directive to agencies, accomplishing what Congress could not, is that federal agencies should not hold up proposed developments based upon evidence or concerns those actions may contribute to climate change.
US Rep. Raúl M. Grijalva, a Democrat from Tucson, Arizona who is chairman of the House Resources Committee, issued a stern rebuttal:
"The Trump administration’s NEPA rule revisions, like its revisions to every other environmental law it touches, are about giving polluters more political power and protecting them from public scrutiny. These changes mean polluting corporations will have an easier time doing whatever they want, wherever they want, with even less consideration for climate change or local concerns than they’ve shown so far."
Grijalva went on: "More people will get sick from pollution, more money will have to be spent rebuilding ill-conceived projects, and more preventable climate impacts will go unaddressed. Polluting industries need more public oversight, not less, and supporting this approach means ignoring real-world consequences in favor of Trump administration fairy tales. The courts have been crystal clear that NEPA requires considering climate impacts, so this is just another inevitably doomed effort by this administration to try to illegally rewrite the rules it doesn’t like. The president should do everyone involved a favor and hire more diligent lawyers."
Point of fact, the kind of environmental protection that has resulted from NEPA has been a boon for the economy and laid down a bedrock for what some call "conscientious capitalism" to thrive. Further, policy experts say that because of NEPA federal and state governments and local communities (e.g. taxpayers) have likely been spared billions, perhaps more, in clean-up costs for industrial activities for which the after-the-fact burdens of mitigating disasters or ongoing liabilities to the public were not fully considered.
Giving The Public A Voice, Holding Government To Account
Drafting of NEPA came after years in which bureaucrats and politicians stood accused of keeping the public locked out of decision making and placing the financial interests of powerful, politically-connected private interests ahead of the interests of society. In fact, President Theodore Roosevelt at the dawn of the 20th century railed against such abuse of power when he was president at the dawn of the twentieth century.
NEPA is considered a global model. This was an assessment offered to Mountain Journal by the late Republican conservationist and attorney William Ruckelshaus. Interestingly, an environmental policy center at the University of Wyoming is named after Ruckelshaus, whose importance we will get to below.
NEPA is one of the laws, Ruckelshaus said, that has made America a great nation underscored by the high quality of life Americans enjoy compared to countries where corruption and greed rule. Can it be improved and modernized? Yes, he said but not with a blunt instrument. Many consider NEPA almost like an amendment to the US Constitution. A notable preamble to the nuts and bolts of NEPA is found in this declaration. Words highlighted in italic done for emphasis.
"The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man….
"…..declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans."
The gist of NEPA is this, and it’s why environmental historians say citizens need to be paying attention now: not only do Americans have a right to be protected against land management and business activities that might impair the environment, but they are granted a right to be stakeholders in telling the government how they want lands the public owns to be managed. Courts have cited the lack of NEPA compliance by agencies like the National Park Service, US Forest Service, US Fish and Wildlife Service, US Bureau of Land Management, National Oceanic and Atmospheric Administration, National Highway Administration and EPA, among others, in haulting projects or forcing them to be revised.
In its 50 years, NEPA’s greatest achievement is it gives the public a voice they didn’t have before, says Timothy Preso, a nationally-noted environmental attorney who works for EarthJustice in Bozeman, Montana. That makes NEPA a cornerstone of our participatory democracy, he explains, analogous in many ways to our right to free speech, vote and carry a gun. NEPA holds decision makers to account for actions that impact society and it is why America is not brazenly run by oligarchs, he adds.
Not only do citizens have the right to defend their health, but they have a legal hook for pushing back against environmental despoliation, Preso says. When NEPA became law, it created the White House Council on Environmental Policy and the law required custodians of public resources to conduct environmental reviews—Environmental Impact Statements for complicated proposals and Environmental Assessments for minor things. And it compelled agencies to offer the public a range of options when pondering a proposed development activity.
The Wyoming Department of Transportation, Wyoming Game and Fish Department and private landowners have earned praise for their nation-leading work in building wildlife overpasses and underpasses in the Greater Yellowstone Ecosystem. The structures have reduced the likelihood of wildlife-vehicle collisions and saved the lives of both people and animals while helping to keep wildlife migrations healthy. Some of the animal beneficiaries, here and elsewhere, have been pronghorn, mule deer, elk, moose and animals such as bears, mountain lions and wolves. Such wildlife-friendly devices are now being deployed in many states. What some citizens may not realize is that the structures are being built because, in some cases, federal highways and interstates were built across wildlife corridors with little thought given to the problems they were creating. In fact, some critics say that the Federal Highway Administration failed, as part of the NEPA process, to make environmental concerns part of the equation along with priorities driven by highway engineers. Photos—top courtesy Jeff Burrell with the Wildlife Conservation Society and bottom image courtesy WDOT.
Preso notes that contrary to how NEPA detractors have "mischaracterized" its effect, as being a law loved only by liberal, lefty environmental, anti-business do-gooders, its net effect is to reflect all sides of an issue. He points out that the timber industry invoked NEPA to challenge protection of Forest Service roadless lands which serve as a catchment basin for water reaching tens of millions of Americans at their taps. Preso litigated and won the landmark case. “Public involvement through NEPA is a right Americans have that has been hard won,” he says.
Before Democrats gained control of the House of Representatives in 2018, there were several efforts underway in Congress to legislatively weaken or gut key provisions of NEPA, part of a larger fusillade of more than 150 attempts at reforming the law in ways that did not involve minor tweaks.
Before Democrats gained control of the House of Representatives in 2018, there were several efforts underway in Congress to weaken or gut key provisions of NEPA, part of a larger fusillade of more than 150 attempts at reforming the law.
If attempts at weakening or abolishing NEPA's implementation are successful, environmental protection advocates claim, it will result in resetting the clock backward on environmental protection. Does President Trump possess a full grasp of what NEPA does and how and why it came on the books? Mountain Journal sent several emails to the Interior Department and Trump Administration requesting comment but received no reply.
"This Administration's posture has been to say 'trust us, we know what's right and if you don't like it, tough," says EarthJustice's Preso, asserting that the brazen attitude was demonstrated early in the Trump Presidency when it it historic precedent involving the Antiquities Act and national monuments in Utah embraced by both Republican and Democrat presidents.
Why Fully Understanding Environmental Impacts Is Important
As noted, the effort to make the precautionary principle a centerpiece of NEPA did not come about by accident, but by historic trial and error. Americans across the country realized that if agencies aren’t required to think and plan ahead and hold resource extraction industries to account, disaster can strike.
In Appalachia, there are catastrophes involving mountain top removal of coal and ruination of watersheds (to say nothing of the legacy of black lung). Coastal dwellers have dealt with oil spills—ask residents of Santa Barbara, California about the spill of 1969 or Alaskans about Exxon Valdez in 1989 or Louisianans about Deepwater Horizon. Ohioans remember when the Cuyahoga River caught fire, and New Yorkers when General Electric dumped dioxins into the Hudson River.
In Southern California, where tens of millions of people contended with smog, causing respiratory disorders and early death, regulations imposed on smokestack industries and car manufacturers due to EPA action and NEPA analysis, made the state a leader in improving air quality.
In September 2019, the Trump Administration's EPA took the unprecedented action to limit California's ability to implement stricter laws regulating vehicle tailpipe emissions as a strategy for not only achieving cleaner air but offering a systematic way, at mass scale, to confront carbon pollution contributing to human-caused climate change.
And as a result, California and 22 other states, including New York, filed a lawsuit against the Trump Administration challenging its push to lower environmental standards at the behest of polluters. Yes, it means that states with the largest and most robust economies in the US are suing to have tougher environmental regulations.
In 1969, Ohio's Cuyahoga River was so full of toxic industrial waste and flammable chemicals it burned and required firefighters dousing it with water from water hydrants to put the fires out. The same year a massive oil spill occurred off the coast of Santa Barbara, California, resulting in passage of NEPA, creation of the EPA and the Clean Water Act. Several different Trump Administration initiatives, coupled with bills in Congress, would weaken the review process of proposed industrial activity, especially oil and gas drilling and mining for coal.
Prior to the advent of EPA and NEPA, in towns coast to coast, there was sickness that resulted from gas stations not being required to use leak-proof containers. Rivers were used as sewage disposal systems for municipalities and industrial agriculture, public forests were being treated as taxpayer-subsidized tree farms, smokestacks were linked to outbreaks of asthma, mercury, and arsenic poisoning. As studies have demonstrated, environmental pollution has disproportionately affected poor people.
What is the value of human health and life, clean air and water that humans need every day. What is the worth of coastlines protected from oil spills and dead zones, people in Libby, Montana not dying from asbestos-related illnesses or healthy wildlife migration corridors like those in Greater Yellowstone that accommodate the movements of elk, mule deer and pronghorn and are considered globally-iconic marvels of nature.
The 50th Anniversary Of Landmark Year
Something else momentous happened the same year that NEPA was enacted. A new federal agency was created by executive order with the stroke of Nixon’s pen—the US Environmental Protection Agency. The EPA’s first administrator was, yes, attorney William Ruckelshaus, a Republican, widely praised for having peerless ethical integrity and who even refused to condone Nixon’s behavior four years later when the president famously carried out the infamous Saturday Night Massacre in an attempt to thwart the Watergate Investigation that eventually would drive Nixon from office.
NEPA has a special connection to the EPA, for the law gives the agency heft in enforcing the Clean Air and Clean Water acts and in recent years it has employed NEPA to consider the consequences of fossil fuel companies, automobiles and coal-fired energy plants sending carbon dioxide into the atmosphere contributing to human-caused climate change.
One of the first things President Trump did in 2017 was sign an executive order cancelling an executive order implemented by his predecessor, Barack Obama, which had instructed federal resource agencies to study climate change, consider climate change in management decisions, make plans for adaptation, and generally coordinate across the boundaries of bureaucratic fiefdoms.
In its place, Trump’s executive order established this new priority: “The heads of agencies shall review all existing regulations, orders, guidance documents, policies, and any other similar agency actions (collectively, agency actions) that potentially burden the development or use of domestically produced energy resources, with particular attention to oil, natural gas, coal, and nuclear energy resources. For purposes of this order, 'burden' means to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources.”
Underlying the directive is a motivation to thwart or diminish NEPA's ability to adequately do its job, a number of policy experts contacted by Mountain Journal say.
The move was immediately applauded by Western lawmakers such as Sen. John Barrasso, a medical doctor from Wyoming, and colleague Sen. Steve Daines from Montana. It's difficult to keep track of all the pieces of legislation aimed at disabling NEPA that were being advanced through House and Senate committees and subcommittees.
On January 28, 2018, the House Natural Resources Committee then chaired by Rob Bishop, a Utah Republican, issued a press release praising legislation that would rapidly ramp up oil and gas drilling on public lands and in marine coastal areas. Notably, earlier in January after Trump announced a sweeping change that would clear the way for more offshore drilling by rescinding Obama-era regulations, he backtracked in deciding to exclude Florida where he has a beachside home in Palm Beach—Mar-a-Lago—and where Republicans protested.
Ironically, many climate models predict that with melting glaciers and larger storm surges in the ocean related to increasing global temperatures, Mar-a-Lago and much of the Florida coastline could, by the end of this century, be under water, notes Bishop's successor as Resources Committee Chair Raúl Grijalva.
BP's Deepwater Horizon drilling platform disaster which started on April 10, 2010 and leaked 3.19 million barrels of oil into the Gulf of Mexico across 87 days, causing $62 billion in damages and clean-up costs. It is by far the worst oil spill in U.S. history. NEPA is a law intended to protect the public interest against such disasters. Photo courtesy NOAA
A short while earlier, Bernhardt, then a political appointee serving Ryan Zinke in the Interior Department, circulated a memo that said, going forward, environmental impact statements, regardless of the scale of proposals being examined, “shall not be more than 150 pages or 300 pages for unusually complex projects” in order to reduce review to a year.
The message: if there’s too much science or not enough that should necessitate the need to gather more information, it won’t be considered, Preso of EarthJustice says. Of course, while Interior claims its intentions are pure, there are bills advancing in Congress that create areas of categorical exclusion for NEPA where local federal land managers can, of their own discretion, decide more intense review isn’t required, citizen involvement not allowed and decisions unchallengeable—which is exactly how management used to be done prior to NEPA.
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The reason there is not more environmental disasters and expensive cleanups today is not because NEPA isn't needed, natural resource policy experts note, but that NEPA is doing its job.
In the West today there are tens of thousands of river miles sullied pre-NEPA by hardrock mining wastes because the precautionary principle was never applied. Or, in the case of the Summitville Mine in Colorado and the Zortman-Landusky Mine in Montana, companies declared bankruptcy and ran away from responsibility, leaving the public to foot the burden of addressing pollution forever. There are underwater aquifers that have been contaminated. There are huge stretches of public lands that, while management is supposed to be “multiple use,” are actually single use because one activity trumps the rest.
Had NEPA been in effect, the odds are great that one of the nation’s largest environmental disasters—the federal Superfund site rooted in the Copper King era and extending from Butte, Montana to Anaconda and down the course of the Clark Fork River—might never have reached such epic proportions.
While it is safe to suggest the President is not conversant about NEPA, his former cabinet-level lieutenants were, certainly Interior Secretary Zinke (a former Congressman from Montana), EPA Administrator Scott Pruitt (for attorney general of Oklahoma), and Agriculture Secretary Sonny Purdue (former governor of Georgia).
Prior to his resignation as Interior Secretary, Ryan Zinke welcomes David Bernhardt aboard to serve as his top undersecretary. Months later, Zinke resigned his cabinet-level position amid several ongoing ethics investigations. President Trump chose Bernhardt to be Zinke's replacement. Photo courtesy US Department of the Interior.
Both Zinke and Pruitt resigned form the Trump Administration amid a number of ethics investigations. Zinke has claimed all along that he's innocent and to date he's not faced any indictment or reprimand. The New York Times published a roster outlining the investigations and noted that several have cleared him of wrongdoing.
In 2019 after the Office of Special Counsel involved with one investigation into whether he violated the Hatch Act found he had done nothing wrong, he told CNN: "Every false allegation and subsequent investigation has resulted in the same conclusion: I followed all rules, regulations, and most importantly the law."
Pruitt's replacement at EPA, Andrew Wheeler, said in praise of President Trump's latest move: “The NEPA process today is more about preparing documents for litigation than protecting the environment. This streamlined approach to NEPA will free up countless career employees to focus more of their time protecting the environment instead of protecting the jobs of attorneys who sued to stop each and every project. NEPA was not meant to be a welfare program for trial attorneys.”
Wheeler and Trump were flanked by leaders of the North America’s Building Trades Unions, the National Cattlemen’s Beef Association, the American Trucking Associations and others.
"Today’s proposal would modernize the environmental review process. The proposed rule would make commonsense changes to establish a presumptive two-year time limit for Environmental Impact Statements; require federal agencies to request information from applicants and the public earlier in the process; increase coordination by agencies to reduce delays; avoid duplication by facilitating use of documents required by other statutes or prepared by state, tribal, or local agencies; and ensure that the regulations reflect current, modern technologies," CEQ Chairman Mary Neumayr added.
"The proposed rule would provide for a faster process while ensuring that agencies analyze and consider the environmental impacts of proposed actions and reasonable alternatives to address significant impacts.....Nothing in the proposal would eliminate the protections that Congress has enacted to safeguard our environment and the American people."
In fact, based on objective analysis, what Neumayr says is not accurate for the public review process of NEPA that applies to all federal land, ocean and wildlife management agencies is the undergirding of their own operational codes.
How Might The Proposed Changes Register In the West?
One important area pertaining to NEPA reform—categorical exclusion— would allow managers with the US Forest Service, for example, to authorize small-scale clearcut logging operations—no limit to the number— if they believe they might possibly reduce wildfire risk. Or at least claim so.
Preso says it would return Forest Service decision making to the era before NEPA was put in place, when individual forest supervisors and district rangers across the West and in Alaska green lighted logging and roadbuilding without considering the environmental consequences, which were huge.
A House bill would have allowed local forest supervisors to invoke special categorical exclusions for NEPA review and public involvement involving salvage logging of burned trees and proposed "fuel reduction projects" of up to 10,000 acres while a Senate version would allow review to be skirted in projects up to 6,000 acres.
Both of those proposals attracted condemnation from two nationally-respected ecologists Norm Christensen and Jerry Franklin. "The legislation would ... exempt the Forest Service from analyzing cumulative environmental effects of multiple categorical exclusions projects in the same vicinity, violating fundamental ecological principles of sound public forest management on issues of scale, context and need," they wrote. "These exemptions from environmental law are an aggressive legislative assault on our national forests and public participation."
(For a detailed analysis of the implications for American Wilderness lands and wildness study areas in administrative orders and bills moving through Congress, read this Mountain Journal story by Dr. Franz Camenzind.)
Another executive decision by the Interior Department involves a sweeping change to the federal Migratory Bird Treaty Act allowing oil and gas companies to kill birds if they claimed their actions were unintended, a move made by former Interior Secretary Zinke.
Prior to passage of NEPA, the U.S. Forest Service, bowing to political pressure from the timber industry, approved clearcuts on national forests that not only wreaked environmental havoc but trees were given away at pennies on the dollar, roads built to pull the logs out were subsidized by taxpayers and the public got stick trying to rehabilitate traumatized landscapes and the species living in them. NEPA changed that but now members of Congress are pushing through legislation that would give local forest managers discretion, without being subjected to rigorous public review, to cut trees if they think it might prevent wildfires.
For proponents of reform, a rhetorical front that’s been advanced is requiring federal agencies to give more priority to any short-term economic benefit generated by resource extraction over the concerns of environmental protection.
One aspect of NEPA that has direct relevance for millions of urban Americans is the scrutiny it allows of siting chemical and smokestack manufacturing plants in the backyards of poor people who have borne the brunt of pollution because they tend not to possess the means to battle large companies with political connections.
Some Practical Examples of NEPA Compliance
Why do NEPA and the precautionary principle matter to Westerners, to all Americans? Why do you want government officials to be held accountable?
If, say, a natural gas company wants to start fracking coalbed methane near your property, punching holes into the underground aquifer from which you derive your drinking water and using toxic chemicals to help extract the natural gas, it’s wise to know first whether the activity could cause harm to this essential resource vital to the health of you and your family.
NEPA reformers claim too many proposed private natural extraction activities on public lands, federal maintenance, road building and maintenance projects, and permitting have been tied up in regulatory red tape for years, squelching economic prosperity and costing jobs.
The American Petroleum Institute, which along with other fossil fuel organizations and think tanks, praises the Trump Administration maneuvers. In a statement, API said:
“Endless and repetitive reviews for infrastructure, renewable energy, natural gas and oil projects have been misused to delay and derail development, which hurts job creation, reduces tax revenue and saps investments in communities across the country,” API President and CEO Mike Sommers said. “Reforming the NEPA process is a critical step toward meeting growing demand for cleaner energy and unlocking job-creating infrastructure projects currently stuck in a maze of red tape.”
According to API, studies show that improving permitting "could unleash more than a trillion dollars in private-sector investment, which is critical to meeting growing demand for affordable, reliable and cleaner energy."
Last month, API stated, the National Petroleum Council reported that “overlapping and duplicative regulatory requirements, inconsistencies across multiple federal and state agencies, and unnecessarily lengthy administrative procedures have created a complex and unpredictable permitting process. While there have been bipartisan actions by Congress and the Executive Branch to expedite the permitting process, more improvements are necessary.”
Important to note is that a significant number of oil and gas and coal leases granted on public land to private companies have never been exploited, not due to environmental regulations and permitting but commodity markets.
The BLM: Does It Know How To Balance
Energy Development And Wildlife Habitat Protection?
In many cases, environmentalists note, NEPA compliance even without weakening the law has been dubious. Consider Bureau of Land Management review pertaining to companies desiring to cover tens of thousands of acres of public land with hundreds or thousands of natural gas wells, roads, pumping stations, pipeline and other infrastructure in the Jonah Field and Pinedale Anticline.
With documented declines in Greater Sage-Grouse populations reported this year, there is an ongoing debate about the impacts of oil and gas drilling on the imperiled birds. However, there is no debate over the impact of drilling and its related infrastructure on mule deer.
Research biologist Hall Sawyer, who has studied and tracked the movement of mule deer in the Upper Green River Basin outside of Pinedale, Wyoming for decades, released the findings of a peer-viewed paper. Mule deer populations have declined nearly 40 percent.
Part of the precautionary principle in NEPA would have vigorously assessed whether it would be detrimental to, say, public wildlife such as pronghorn, sage-grouse, mule deer, elk and other animals?
Even former Wyoming Gov. Dave Freudenthal condemned the federal review process that resulted in the massive Jonah Gas Field becoming a sacrifice zone for wildlife.
This gets at a reform that environmentalists would like to see implemented—rigorous ongoing environmental monitoring of projects given the go-ahead by agencies to insure compliance is happening. In the case of the BLM, some of the people involved with the review pertaining to the Jonah Field and Pinedale Anticline claimed the impacts to wildlife would not be severe and that any could be adequately mitigated.
Freudenthal's tenure in Cheyenne coincided with the George W. Bush Administration in which categorical exclusions were granted to the BLM through the Energy Policy Act of 2005 and are blamed with creating the problems referenced by the governor.
As reported in the Casper Star-Tribune, the Government Accountability Office investigation found that in just to years, the BLM approved more than 22,000 new oil and gas drilling permits across 20 states, most of them in the West. The BLM invoked its authority to use categorical exclusions, preventing more extensive public review under NEPA, to approve 6,100 permit applications, many of them located in Wyoming.
Even with NEPA on the books, did the BLM, through environmental assessments and the Environmental Impact Statement process fully evaluate the impacts of energy development on wildlife? Former Gov. Freudenthal didn't think so. What does a weakened NEPA mean as the BLM moves toward approving more drilling in vital habitat?
By law, the Bureau of Land Management was supposed to do a detailed cost-benefit analysis on proposed natural gas drilling in the Jonah Field south of Pinedale, Wyoming. Far from achieving "balance" that recognized the habitat needs of pronghorn, mule deer, sage-grouse and other species, the BLM permitted intensive development that even Wyoming Gov. Dave Freudenthal described as an environmental sacrifice zone and "an example of what not to do in the future." This was done with NEPA in effect. What will a weakened law mean as the Trump Administration aggressively moves toward removing regulations perceived to be burdensome to industry while covering the West with thousands of more wells? Photo courtesy Ecoflight (ecoflight.org)
One could also consider the Wyoming Game and Fish Department’s applications for permits to operate 22 controversial elk feedgrounds located on Forest Service and BLM lands, with there being well documented risk for spreading deadly chronic wasting disease and other pathogens to wildlife. The precautionary principle suggests it isn’t smart to dismiss the concern and simply pray something bad doesn’t happen.
Preso says the Forest Service and National Elk Refuge, in lawsuits challenging the continuance of feeding, have met with incredulous judges in federal courts, pointing decisions that defy science or did not adequate entertain alternatives. NEPA has given conservationists the legal right to challenge elk feeding, which is particularly important with CWD now right not he doorstep of the National Elk Refuge where 8,000 elk or more winter.
The Trump Administration’s proposals to roll back and streamline regulations in the name of achieving better efficiency on the surface sounds perfectly reasonable to some, but critics warn that the net effect will lowering the level of environmental compliance stipulations adopted originally for compelling reasons.
Preso says that for some proposed resource extraction projects, or a flurry of projects in which it's vital to understand the cumulative effects, it is impossible to adequately assess impacts with a two-year limit to get an Environmental Impact Statement completed or written in under 300 pages—particularly with agencies short-staffed and underfunded. In a region like the Greater Yellowstone Ecosystem, with globally-iconic wildlife and other natural wonders, it is not the place to make impetuous decisions with so much at stake and potential impacts being long-lasting or permanent.
"Setting a time limit or a page count for doing an adequate analysis is beyond silly and shows that those mandating these actions don't understand the importance of thorough review," he said.
President Trump, speaking at his recent NEPA reform press event in the White House, insisted that Environmental Impact Statements "often" take 10, 20 or 30 years to finish. His presentation of reality appears to be in conflict with available facts. Yes, some controversial resource development proposals have taken years or decades, such as federal highway projects proposed for being bulldozed through residential neighborhoods. But they are the exceptions.
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Does NEPA thwart business? In the aftermath of the Great Recession and implementation of the American Recovery and Reinvestment Act, the Obama Administration and lawmakers on both sides of the political aisle were eager to get federal projects funded as quickly as possible to provide economic stimulus in states and local communities. In the allocation of $300.7 billion in stimulus funding, the Council on Environmental Quality determined that few federal agencies complained about having to go through NEPA compliance. Of 192,707 NEPA reviews, 184,733 were handled via categorical exclusion, 7,133 through the environmental assessment process and just 841 required full-blown environmental impact statements.
In the allocation of $300.7 billion in stimulus funding, the Council on Environmental Quality determined that few federal agencies complained about having to go through NEPA compliance. Of 192,707 NEPA reviews, 184,733 were handled via categorical exclusion, 7,133 through the environmental assessment process and just 841 required full-blown environmental impact statements.
While there is not comprehensive clearinghouse for NEPA review in general, the Government Accountability Office in 2014 found, based on decisions published in the Federal Register, that the US Department of Energy, for 197 EISs completed in 2012, the average preparation time was 1,675 days or 4.6 years—the highest average dating back to 1997. GAO noted that based on available information, between 2000 and 2012, the total average governmentwide preparation time for an EIS had increased at a rate of 34.2 days, or about a month, each year during that time.
"Managers who use the NEPA process to holistically consider environmental issues and requirements find that the NEPA process helps them with program and project delivery in addition to improving environmental performance," the Council on Environmental Quality determined, coming to a conclusion under Obama dramatically different from the one stated by Trump's CEQ Chairman Neumayr.
The 2011 report to Congress offers page after page, example after example, of how projects that underwent review by NEPA both aided the economy and, in many cases, safeguarding or improved environmental protection.
CEQ pointed to what the architects of the law intended, citing language that was approved by both houses of Congress and signed by President Nixon: "(I)t is not better documents but better decisions that count. NEPA’s purpose is not to generate paperwork – even excellent paperwork – but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment."
The need to give government land managers more authority to invoke categorical exclusions in order to move more natural resource decisions forward, based on the claim by Trump officials that decisions are being held up by Environmental Assessments and Environmental Impact Statements and stifling the economy, is also not supported by facts.
The same GAO review of NEPA in 2014 noted that, according to the White House Council on Environmental Quality, "about 95 percent of NEPA analyses are categorical exclusions, less than 5 percent are Environmental Assessments, and less than 1 percent are Environmental Impact Statements. Projects requiring an EIS are a small portion of all projects but are likely to be high-profile, complex, and expensive."
The CEQ, responding to that same 2014 report, debunked a claim commonly made that environmental litigation linked to NEPA has brought decision-making in the Forest Service, especially decisions involving proposed timber sales, to a standstill. Researchers writing in The Journal of Forestry looked at 20 years of Forest Service land litigation and found that, of litigation cases filed between 1989 (at the height of the timber wars in the Pacific Northwest) and 2008, the Forest Service prevailed in 58.9 percent of the cases, lost 23.3 percent and and settled in 22.9 percent.
Top image: Salmon in Alaska spawning in their birthplace streams. In many ways, salmon are sources of sustenance for indigenous people in Alaska. The controversial Pebble Mine in southwest Alaska near Lake Iliamna and Lake Clark is considered a threat to the one of the healthiest wild salmon populations left in the world. Should it be put at risk so that a Canadian mining company can extract gold, copper and molybdenum? The EPA in summer 2019 announced that it would not oppose construction of Pebble and that it would go through the NEPA permitting process. Many believe the Trump Administration is risking the alienation of moderate Republicans who identify as conservationists and like to fish if it allows the mine to go forward. Photos courtesy Pat Clayton.
NEPA is considered an essential code for examining the impacts of possibly opening the controversial Pebble Mine in Alaska (among the healthiest spawning and rearing grounds for wild salmon left in North America) and the Arctic National Wildlife Refuge to oil drilling. In Minnesota, NEPA compliance is vital in assessing proposals for opening a massive copper and nickel mine on the edge of the beloved Boundary Waters Canoe Area. It also applies to expanded drilling along America's coastlines, possible new uranium mining in the desert Southwest, and hundreds of other projects related to federal land in every state.
Notably, some of the fiercest critics of NEPA have been lawmakers who receive contributions from the fossil fuel industry, including companies that have waged deliberate attempts to silence scientists. They characterize the law as being excessively onerous, riddled with red tape requirements, too costly and too burdensome to agencies having to comply. The U.S. Chamber of Commerce has formed an entity Unlock American Investment backing NEPA reform and its members are a who's who of industrial interests.
Opensecrets.org tracks campaign contributions related to different industries such as oil & gas, including top recipients, and it examines the flow of money to the differing political parties.
Here is a common pattern, Preso of EarthJustice says: an agency, coming under political pressure will issue a decision that does not address issues consistent with the precautionary principle. Then a group will sue, a judge will agree that a decision was made arbitrarily and capriciously and so the agency must go back to the drawing board.
Routinely, members of Congress hostile to NEPA attack the law, judges and environmentalists. They claim there has been a pandemic of lawsuits when the facts actually suggest otherwise and facts show that often industry brings lawsuits too.
For decades, officials at all levels of government refused to confront growing evidence that hundreds of residents in Libby, Montana were getting sick or dying from asbestos-related lung diseases caused from exposure to particles at a local vermiculite mine. Ultimately, a subsequent owner of the mine, W.R. Grace was acquitted of responsibility for the human-caused disaster but the verdict did not resolve the question of who is to blame. NEPA is one law to prevent such disasters from happening.
Seldom do lawmakers acknowledge that NEPA safeguards the quality of life of their constituents and yet when disaster strikes they blame government ineptitude, he says. Two factors hobbling NEPA compliance in recent years have been lack of adequate staffing to conduct reviews and cutbacks to scientific research.
Civil Servants Who Worked On The Front Lines Of NEPA
One of the federal agencies on the front lines of NEPA compliance is the US Fish and Wildlife Service. Former Director Dan Ashe, who held the position during the Obama Administration, navigated NEPA through species listing and delisting decisions, oil spills, river clean ups, habitat protection and on numerous other fronts.
“We are seeing efforts to curtail under the guise of deregulation. Sure, as an administrator you can be frustrated at times when you lose on process issues in court that seem wasteful of limited financial resources,” Ashe said.
“But what people like to say is that American government is by the people and for the people. And NEPA is a law for the people. Citizens should have a right to challenge their government. If you can take on the Fish and Wildlife Service and win in court, given the number of talented lawyers with the agency and at the Department of Justice, then you probably have a point. NEPA keeps you smart as a public servant.”
Ashe says that attempts by the Trump Administration and Congress to hurry decisions is wrongheaded. “Some decisions require time to think and there are plenty of examples when not enough thinking went into decisions,” he explains, citing the Kissimmee River in the Everglades of Florida.
“We took out all of the bends in the river and caused a lot of ecological harm and four or five decades later we are spending hundreds of millions of dollars to put the bends back. Without NEPA you can make these kinds of mistakes everywhere if you’re not careful. The law has done a lot good and it has allowed us to avoid calamities in the environment through rash thinking.”
Ashe noted another ripple effect of unilateral actions taken by Zinke Pruitt and now Bernhardt. “There is definitely some deep frustration within the ranks of the Fish and Wildlife Service. The policies of this Administration have led to a collapse of morale. Good people are leaving. I talked to another senior person just today who is contemplating departure,” Ashe said. “To have an Administration that seems to have no respect for science and seems so willing to say things that are just uninformed is troubling.”
During an interview I had with Bill Ruckelshaus a few years ago, he expressed his dismay that Republican members of Congress who were trying to weaken NEPA and the EPA. In a recent interview with The Huffington Post, Ruckelshaus again spoke out against the Trump Administration's attempts to mute science. ““If your position is, ‘I don’t believe the science, therefore I’m going to get rid of all the scientists studying this, and let’s not mention it in any public announcement,’ that’s just crazy,” Ruckelshaus said. “What you want to do is more science.”
“If your position is, ‘I don’t believe the science, therefore I’m going to get rid of all the scientists studying this, and let’s not mention it in any public announcement,’ that’s just crazy." —William Ruckelshaus, former chief administrator of the US Environmental Protection Agency
There is one aspect of public land management where Congress has been generous. It has allocated funding so that agencies like the Bureau of Land Management can rapidly expedite as many oil and gas drilling permits as possible, though they haven’t bolstered the biology staffs. With NEPA reforms, the issuing of new permits to drill is expected to accelerate, though a recent federal court ruling resulted in the BLM putting a number of leasing proposals in Colorado, Utah and Nevada on hold over concerns about Greater Sage-Grouse and the impacts of more drilling contributing to climate change.
Prior to NEPA, many land management decisions were focused primarily only on short-term economic considerations and yet US taxpayers have been stuck paying billions upon billions of dollars to fund expansive cleanups after companies walked away from their responsibility, filed for bankruptcy or never completed what they claimed they would do. In Wyoming today, there is concern over whether bonds posted by coal companies to clean up old open pit mines will be sufficient to heal damage caused. The same worries exist for oil and gas.
Today in America there are estimated to be between 2.3 and three million abandoned oil and gas wells in the US causing an array of problems, two of the most prominent being groundwater contamination and the release of methane gas into the atmosphere contributing to climate change. This, according to a 2018 analysis completed by EPA.
A recent report from the Government Accountability Office noted that the BLM found 89 oil and gas wells between July 2017 and April 2019 for which the bonds posted by operators are insufficient to carry out clean up. "Without taking steps to adjust bond levels to more closely reflect expected reclamation costs, BLM faces ongoing risks that not all wells will be completely and timely reclaimed, as required by law," GAO said. "It falls to BLM to reclaim orphaned wells, but the bureau does not assess user fees to cover reclamation costs, in part because it believes it does not have authority to do so."
This is why NEPA, the look before one leaps law, matters, environmental protection advocates say. Billions of dollars of resources might be extracted from the ground, with companies enjoying huge profits, but if development results in huge clean up costs for citizens left to deal with the aftermath, then is it good public policy. Is it wise to weaken a law that requires all liabilities to be considered and accounted for?
"We're going to quickly be in the tens of millions of dollars responsible for plugging and reclaiming oil and gas wells if we don't require upfront bonding," Jill Morrison, executive director of the Powder River Basin Resource Council in Wyoming told National Public Radio.
EarthJustice’s Preso says the answer is not merely allocating taxpayer money so that agencies can process more resource extraction permits, it is to fully fund agencies and their science programs so that they have the data they need. This would go a long way toward expediting decisions, proposing mitigation to reduce damage or outright tell companies their plans are being rejected, which saves it time and money.
Having a clean and healthful environment, for people and wildlife, is not a mere privilege, Preso notes. It is a right and when NEPA was written, Republicans and Democrats saw its provisions as an important part of representative democracy.
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Michael V. Finley understands what is at stake with an assault being waged on environmental protection that he says is unprecedented in history. Finley has been involved with public policy and natural resource management for nearly five decades.
He spent more than three decades rising through the ranks of the National Park Service as a civil servant. He prestigiously is the only senior Park Service employee in modern times to have served as the superintendent of “the Big Three” national parks—Yellowstone, Yosemite and Everglades. He served under six different presidents and also was a ranger in Grand Teton National Park.
In 2000, he left the helm of Yellowstone to become president of the Turner Foundation, the private philanthropy entity established by Ted Turner, and through that role worked with thousands of companies, non-governmental conservation organizations and government agencies trying to advance sustainable environmental stewardship.
Mike Finley, former superintendent of Yellowstone, Yosemite and Everglades national parks, was recently the former chairman of the Oregon Fish and Wildlife Commission. Finley also served as president of the Turner Foundation and worked with companies, citizen groups, government officials and recreation interests to promote sustainable conservation practices. While with the Park Service he was one of the most decorated civil servants in government. He says that NEPA was crucial in stopping total destruction of the Florida Everglades, limiting auto traffic in the Yosemite Valley to alleviate traffic congestion and pollution, and in stopping the controversial New World Mine from being built on the back doorstep of Yellowstone.
Most recently, Finley, a lifelong hunter, angler and outdoor recreationist, was chairman of the Oregon Fish and Wildlife Commission. In every aspect of his career, he has observed the vital role that NEPA plays. As a senior civil servant he was obligated to carry out numerous Environmental Impact Statements and Environmental Assessments, including documentation on everything from trying to restore the Everglades to wolf restoration, bison management and battling the New World Mine in Yellowstone to addressing overcrowding and smog problems in Yosemite Valley.
“NEPA protects what’s in front of us now and it serves as our bridge to the next generation, giving us an opportunity to positively shape their world," Finley says. "Attempts being made now to cripple laws like NEPA are not only shortsighted, they are ill-sighted and suicidal in the end.”
Former EPA Administrator Scott Pruitt claimed climate change will benefit humanity and the economy. “Pruitt is out of his mind,” Finley said. “We are already witnessing changes in the chemistry and water temperature of the ocean that is affecting reproduction of salmon which will have serious consequences for both commercial and sport fishermen. More carbon dioxide being absorbed in lowering the pH of the water and the greater acidity is affecting shellfish and smaller foods like plankton that are the cornerstones for other species up the food chain in the marine environment.”
Will Trump's sweeping changes to NEPA do what the President says it will do in goosing the economy all the while squandering precious time for the US federal government—the most important entity in the world—to address the contributors to climate change?
Every major US environmental protection law came on the books as a result of moderate Republicans and Democrats coming together with the belief that protecting land, water, air, wildlife and open space is also a good business move. The Trump Administration has seemed to discount the value of that legacy. It began its tenure with undermining the Antiquities Act, used by Republican President Theodore Roosevelt to create national monuments that today are some of the most beloved protected areas in the country.
And in 2020, it moved to weaken the Clean Water Act, even as dead zones linked to agricultural and industrial waste continue to appear in the Gulf of Mexico and deadly algae blooms are happening with greater frequency around states like Florida. Undercut too is wetlands protection, so critical to the survival of many species including huntable migratory waterfowl and which serve as buffers against climate change. It was Republican President George Herbert Walker Bush who, after all, advanced the policy of no-net loss of wetlands.
Finley says America is rapidly losing credibility as an environmental leader in the world and he has seen numerous opinion polls saying the Trump Administration is out of step with the values of citizens.
"We are being led back into the Dark Ages. Those who are leading attacks on laws like NEPA have disregard for everything but their narrow view of the world. They see everything through the lens of a gas nozzle or a ton of coal, science be damned. If you don't use science as the source of sound management decisions, then what do you use—shrill political dogma and religion?"
Normally restrained in telling the public what to do, Finley says "the circumstances are so dire" that he and other thought leaders are saying citizens need to take action now and direct their outrage at politicans in Washington and state legislatures.
“Citizens need to stop being passive. They need to put pressure on their elected officials, letting them know they are aware that selfish interests and greedy gluttons are pushing an agenda that is not in their best interests or that of their children’s best interests and they are not going to stand for it anymore. The days of decimating our environment are over and we need to rise up. What does America desperately need? There needs to be a #MeToo movement started for the environment.”