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'Improving' the National Environmental Policy Act?

New York Law Journal

February 24, 2006
by Stephen L. Kass and Jean McCarrol

On April 6, 2005, the U.S. House of Representatives Committee on Resources, chaired by Richard W. Pombo, R-Calif., established a "Task Force on Improving the National Environmental Policy Act" to study NEPA-related issues, discuss possible improvements to NEPA and to make recommendations to the committee's chairman and ranking member.

The task force, which consists of 22 members of the House committee (predominantly from western states), held seven hearings (largely in western and southern states), listened to 66 witnesses (from federal, state, and local agencies, tribes, "applicants," legal scholars and practitioners, citizen groups, individuals, academicians, and environmental groups), and received written comments.

On Dec. 21, 2005, the task force released a report setting forth its Initial Findings and Draft Recommendations[1] and requested comments from the public on those recommendations. During the comment period, which ended on Feb. 6, 2006, many individuals and groups, including the Environmental Law Committee of the New York City Bar Association, submitted comments. The final Task Force Report is expected to signal a new congressional effort to "improve" NEPA.

Task Force Findings

The Task Force's Report consists of two parts: a summary of comments received, divided into nine "major findings," and a list of nine recommendations. The task force's major findings are grouped in the following categories:

1. What is NEPA's intent?

2. Reasons for and concern about modifying NEPA

3. Litigation — the facts, figures, and effects

4. Federal, tribal, state and local entities and the NEPA process

5. NEPA and other substantive laws

6. Delays to the NEPA process

7. NEPA compliance costs

8. Public participation

9. Do federal agencies have enough resources?

The task force's findings seem to reflect a broad consensus that NEPA has served a valuable purpose since its enactment in 1970 and that public participation is essential to NEPA's success. Many of the report's findings, however, focused on perceptions that the NEPA procedures take too long, cost too much, and delay projects. Many concerns focused on litigation as the cause of those problems, even though the task force received and included in its report statistics showing that NEPA lawsuits represent only a small percentage of environmental cases filed in federal courts and only a very tiny percentage of federal litigation generally, that injunctions are issued in only a small percentage of NEPA suits, and that the vast majority of federal environmental impact statements (EISs) are never challenged in court.[2]

Despite those facts, many commenters seemed to believe that fear of litigation at least increased the length of EISs and the time and money required to prepare them. Commenters also expressed concerns about duplication of environmental review among various federal and state agencies and under various federal statutes.

Recommendations

The task force's draft recommendations are presented in nine groups:

In Group 1, Addressing Delays in the Process: The task force recommends amending NEPA: (1) to define "major federal action"; (2) to require that EISs be completed in 18 months and environmental assessments (EAs) in nine months; (3) to create "unambiguous criteria" for the use of categorical exclusions, EAs and EISs; and (4) to codify criteria for using "supplemental NEPA documentation" (supplemental EISs).

Defining "major federal action" now, after 35 years of interpretation by courts, would seem to be unnecessary, and the proposed definition — "only . . . new and continuing projects that would require substantial planning, time, resources, or expenditures" — omits any mention of environmental impacts, which, of course, are central to NEPA's purpose, or of federal permitting decisions, which often do not require substantial resources but which can have very significant environmental impacts. The other recommendations do not require statutory amendments and are better left to Council on Environmental Quality (CEQ) regulation (where, at least in one case, they are already included[3]) or individual agency rules.

In Group 2, Enhancing Public Participation: The task force recommends: (1) regulations requiring giving greater weight to issues and concerns of "local interests" than to those of "outside groups and individuals"; and (2) a statutory amendment "to codify the concept that an EIS shall normally be less than 150 pages with a maximum of 300 pages for complex projects."

It is not immediately clear how either of these proposals would enhance public participation. Moreover, putting a thumb on the scale to favor certain "local interests" over "outside groups and individuals" would seem to be a bad idea for an environmental disclosure statute and may, in fact, be shorthand for downgrading the concerns of the major environmental organizations that have often brought real expertise and broader experience to debates about projects located in one state or area (such as arctic oil drilling). And, although reducing the length of EISs is a worthy goal, it is hard to see how the suggested statutory language would have any greater effect in NEPA itself than it currently has in the CEQ regulations.[4]

The Group 3 recommendations, entitled Better Involvement for State, Local and Tribal Stakeholders: are (1) to amend NEPA to grant tribal, state and local stakeholders cooperating agency status in any matter in which they request such participation and (2) to direct the CEQ to prepare regulations allowing state environmental review processes to satisfy NEPA requirements where such state procedures are functionally equivalent to NEPA procedures. The former recommendation would risk complicating and lengthening the environmental review process, which is the opposite of the stated goal of the task force. The latter runs counter to the underlying NEPA goal of requiring federal agencies to become informed about, and take responsibility for, the environmental impacts of their decisions.

While some states, notably New York and California, have extensive experience with environmental review and often require EISs that are equal to (and sometimes better than) federally prepared EISs, this is by no means a widespread practice nationally, and even New York's State Environmental Quality Review Act permits private project sponsors to prepare the required EA or EIS in the first instance. Unless sharply limited to circumstances where state-required EISs and comment procedures are no less protective of the environment and of public participation than NEPA and where the involved federal agencies must still review and approve the state EIS and make detailed findings with respect to the environmental impacts of an action, this task force recommendation has the potential to dilute NEPA significantly.

The Group 4 recommendations, Addressing Litigation Issues: are to amend NEPA (1) to create a citizen suit provision and (2) to require that agencies "pre-clear" projects with the CEQ, which would act as a "clearinghouse for monitoring court decisions that affect procedural aspects of preparing NEPA documents."

Although adding a citizen suit provision to NEPA sounds like a step toward assuring access to the courts, the specific requirements in the proposal would likely create more barriers than currently exist under the Administrative Procedure Act (APA), which has been for the past 35 years the vehicle for bringing citizen suits concerning NEPA. The task force's recommendations — for example, requiring a challenger to demonstrate that the environmental review did not use "the best available information and science," placing restrictions on settlement agreements, and codifying standing requirements — either duplicate judicial standards already in place or add restrictions that may reduce access to the courts in NEPA cases, especially for citizen groups and environmental organizations.

One proposal in this group that has considerable merit, however, is for a 180-day statute of limitations for NEPA court challenges. The current APA limitations period of six years is too long and does indeed create the potential for delays and uncertainty. States such as New York State have long used much shorter limitation statutes for court challenges to environmental reviews without unfairly foreclosing legitimate suits.

The "pre-clearing" requirement might or might not be useful in encouraging more uniformity among agencies. Such a requirement, however, would likely delay agency action further and add to the work load of the already overburdened CEQ. The Task Force's Report acknowledges that the CEQ is already "overwhelmed."[5]

In Group 5, Clarifying Alternatives Analysis: The task force recommends (1) amending NEPA to restrict alternatives to be considered to those that are "economically and technically feasible" and to require consideration of the impacts of not taking a proposed action and (2) recommends directing the CEQ to promulgate regulations requiring binding commitments to implement any proposed mitigation.

The first proposal is unnecessary, as it reflects existing law and practice. The second is useful but already within the power of federal agencies conducting NEPA reviews.

The Group 6 recommendations, Better Federal Agency Coordination: are (1) to direct the CEQ to promulgate regulations "to encourage more consultation with stakeholders" and (2) to amend NEPA to codify "appropriate elements" of the CEQ regulation regarding lead agencies.

In Group 7, Additional Authority for the Council on Environmental Quality: The task force recommends (1) amending NEPA to create a "NEPA Ombudsman" in the CEQ "to resolve conflicts within the NEPA process" and "offset the pressures put on agencies by stakeholders," allowing the agencies to focus on assessing the environmental impacts of proposed actions, and (2) directing the CEQ "to control NEPA related costs." The first Group 6 recommendation and the first Group 7 recommendation seem to be pulling in opposite directions: encouraging more consultation with stakeholders, but trying to screen agencies from the pressures of stakeholders. The meaning of the second Group 6 recommendation is not clear, and the second Group 7 recommendation, while serving the worthy objective of controlling costs, gives no suggestion as to how that would be achieved.

The Group 8 recommendations, entitled Clarify Meaning of "Cumulative Impacts": are (1) to amend NEPA "to clarify how agencies would evaluate the effect of past actions for assessing cumulative impacts" and (2) to direct the CEQ to promulgate regulations "to make clear which types of future actions are appropriate for consideration under the cumulative impact analysis." As to the first, the methodology for assessing cumulative impact is an inappropriate subject for a statutory amendment. In any event, the recommendation is too vague for analysis. The second of these recommendations is a bad idea; changing 40 Code of Federal Rules (CFR) §1508.7 to focus, as is suggested, only on "concrete proposed actions" rather than "reasonably foreseeable" future actions would unduly restrict the scope of cumulative impact analysis.

Finally, under Group 9, Studies: The task force recommends that the CEQ be directed to study NEPA's interaction with other federal environmental laws, federal agency NEPA staffing issues, and NEPA's interaction with state "mini-NEPAs" and similar laws. While these are all worthy areas of study, it is hard to see how the already-overwhelmed CEQ would be able to undertake such research along with its existing work and the other assignments proposed by the task force.

Conclusions

Although the task force's goals may appear unobjectionable, its Draft Recommendations, with a few exceptions (such as the proposed shorter statute of limitations for NEPA challenges in court), are unlikely to achieve those goals.

As noted above, several of the recommendations are either ill-advised, contradictory, or unclear, and most would not require amendment of NEPA in any event. Moreover, some recommendations — most notably, those relating to litigation — do not find sufficient justification in the Task Force's Findings. As this report and its recommendations are only "draft" at this point, environmental practitioners and others concerned with the NEPA process should keep a watchful eye on further developments in Representative Pombo's House committee and on the task force's final proposals. Unless substantially revised, the current draft recommendations will do far more harm than good to our nation's premier environmental statute.

Stephen L. Kass and Jean M. McCarroll, together with Clifford P. Case III, direct the environmental practice group at Carter Ledyard & Milburn LLP.


Reprinted with permission from the February 24, 2006 edition of the New York Law Journal
© 2006 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.

Endnotes

[1] The report is available at resourcescommittee.house.gov/nepataskforce/report/nepareport_finaldraft.pdf on the House Committee on Resources Web site. Unless otherwise noted, the quotations are from pages 25-29 of the Report: Draft Recommendations

[2] Report at 11.

[3] See 40 CFR §1502.9(c)(1)(i) and (ii)

[4] See 40 CFR §1502.7.

[5] Report at 24.


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