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New York Law Journal
October 25, 2002
ENVIRONMENTAL LAW
Undermining the U.S. National Environmental
Policy Act [NEPA]
by
Stephen L. Kass
and Jean M. McCarroll
ON OCT. 8, 2002, the U.S.
House of Representatives Resources Committee approved and sent to the full
House H.R. 5319 - the so-called Healthy Forests Reform Act of 2002.[1]
The bill, introduced by Representatives Scott McInnis,
R.Colo., and Greg Walden, R. Ore., seeks to exempt proposed logging
projects on federal lands from review under the National Environmental Policy
Act [NEPA]
under the guise of protecting
those lands from forest fires. Unwise as this effort is on its own slender
merits, H.R. 5319 is also one of a series of attempts by the Bush
administration and the House leadership to undermine NEPA,
the seminal 1969 legislation that requires federal agencies to consider the
environmental impacts of their actions and to open agency decision-making to
public comment and scrutiny. More ominously, the anti-NEPA
campaign extends to the domestic front the Bush administration's efforts to
weaken international legal institutions that are designed to carry out
policies - - in this case informed environmental decision-making through
preparation of environmental impact statements - that the U.S. has long urged
other nations to adopt. Thus, the effort to circumvent
NEPA, no less than comparable administration efforts to cripple or
repudiate international environmental and human rights treaties such as the
Kyoto Protocol, the International Criminal Court and the Land Mines Treaty
[among others] bodes ill for the future of both the environment and the rule
of law, at home and abroad.
NEPA
was enacted by Congress in 1969, in an effort to "encourage productive and
enjoyable harmony between man and his [sic] environment."
[2]It
requires federal agencies to consider the environmental impacts of a proposed
"major federal action" and to prepare an environmental impact statement [EIS]
for any such action that will significantly affect the environment.[3]
It also requires agencies to consider alternatives to the proposed action as
well as the short-term and long-term impacts of the action and any
"irreversible and irretrievable commitment of resources" that would be
involved in it.[4]
In addition, pursuant to regulations developed in accordance with
NEPA, the public must have an opportunity to
review any EIS before a federal agency takes such
a proposed major federal action.
[5]
Regulations provide for an
exception to the EIS requirement in certain
circumstances. Specifically, 40 CFR @1506.11
provides that in emergency situations an agency may engage in a major federal
action without preparing an EIS, provided that the
agency first consults with the Council on Environmental Quality [CEQ],
the agency created by and responsible for the implementation of
NEPA. This regulation has been utilized extremely rarely in
NEPA's 40-year history.
Recent Forest-Related
Legislation and Proposals That Seek to Undermine NEPA.
H.R. 5319 is but one of several recent attempts to exempt actions from
NEPA review. On Aug. 8, 2002, President George W.
Bush signed into law the 2002 Supplemental Appropriations Act for Further
Recovery From and Response to Terrorist Attacks on the United States
[Supplemental Anti-Terrorist Appropriations Act], which includes a section
that finds that the Black Hills National Forest [the forest] is in grave
danger of forest fire and therefore must be "treated" immediately.[6]
The legislation directs the Secretary of Agriculture to authorize "treatment"
projects in the forest that "shall proceed immediately and to completion
notwithstanding any other provision of law including, but not limited to,
NEPA."
[7]
In addition, it exempts from judicial review any actions taken by the
secretary of Agriculture in accordance with the section authorizing treatment
of the forest.
[8]
The Black Hills Forest
provision was buried in an act that was hundreds of pages long and not at all
related to the risk of forest fire on federal lands. It sets a precedent for
the exemption of logging projects from NEPA review
and provides a foundation on which later legislation and executive action can
build. In fact, approximately two weeks after signing the Supplemental
Anti-Terrorist Appropriations Act, on Aug. 22, 2002, President Bush introduced
his "Healthy Forest" Initiative, which highlights the "needless red tape and
lawsuits [that] delay effective implementation of forest health projects," and
calls for legislation that will reduce these delays.[9]
Building both on the precedent
set by the Black Hills Forest legislation and the ideas presented in the
President's "Healthy Forest" Initiative, Forest & Forest Health Subcommittee
Chairman Scott McInnis, R.-Colo., and Greg Walden,
R.-Ore., introduced the Healthy Forest Reform Act, H.R. 5319, in the House of
Representatives on Sept. 4, 2002. The stated purpose of H.R. 5319 is to combat
the "threat of catastrophic wildfire on Federal lands."
[10]
There is widespread agreement
among environmentalists and representatives of the timber industry that the
National Forest Service's wildfire prevention policy has not been successful
in preventing fires and protecting communities.[11]
Accordingly, in August 2000, then-President Bill Clinton directed the
secretaries of the Departments of Agriculture and the Interior to develop a
plan that would, among other things, reduce the risk of forest fires. In
August 2001, those departments collectively issued a 10-year comprehensive
plan, one of the goals of which is to reduce the amount of "hazardous fuels"
in forests close to populated areas.
[12]
"Hazardous fuels" include brush, "small-diameter" trees and undergrowth that
help to fuel fires.[13]
The plan contemplates that "conducting prescribed fire and under-story
thinning may reduce the threat of severe wildland
fires while simultaneously contributing to ecosystem health."
[14]
In May 2002, the departments issued an Implementation Plan that set forth
further actions necessary for implementing the goals established in the
10-year comprehensive plan.
[15]
Placing itself in this
context, H.R. 5319 purports to develop a system whereby projects that would
remove such "hazardous fuels" would be exempted from the environmental review
required by NEPA and subject instead to a
less-rigorous review. Specifically, the bill directs the
CEQ to treat the threat of wildfire on federal lands as an "emergency
circumstance" under NEPA's regulations.[16]
The bill also directs the CEQ to promulgate
regulations that will provide for an exemption from the traditional
NEPA review process in emergency situations.
[17]
It contemplates that the secretary of the agency that would typically perform
the environmental review will certify the types of actions or projects that
should be deemed "emergency."
[18]
The CEQ is also directed to promulgate these
rules in consultation "with the Secretary concerned."
[19]
Although the bill gives the
CEQ a great deal of discretion to promulgate the
rules, it does require the inclusion of certain time restrictions in the
contemplated expedited environmental review process. For example, the public
will be given only 21 days to comment on a proposed agency action.[20]
Current NEPA regulations prohibit an agency from
taking any action on a project within 90 days of the publication of notice of
the project's draft EIS in the Federal Register.
[21]
Under the current regulations, an agency is further prohibited from taking any
action for an additional 30 days after the publication of notice of a
project's final EIS.[22]
If the agency files the final EIS with the
Environmental Protection Agency for publication within 90 days of the filing
of the draft EIS, the 30-day period runs
concurrently with the 90-day period for the draft EIS;
however, agencies must provide at least 45 days for comments on a draft
EIS.
[23]
Therefore, H.R. 5319's 21-day requirement would significantly reduce the
public comment period. H.R. 5319 also directs the CEQ
to promulgate these new expedited review rules within 90 days of the enactment
of H.R. 5319.[24]
Contrary to common practice, the bill provides that the promulgation will not
be subject to public notice and comment under the Administrative Procedure Act
[APA], 5 USC
@553.
As described above, H.R. 5319
purports to be aimed at protecting both the environment and communities
affected by wildland fires. However, if one looks
more closely at the specific elements of the bill, it is clear that it seeks
to establish a framework that could allow environmentally harmful logging
projects to move forward with minimal analysis of their environmental impacts
and with a minimal level of public scrutiny. For example, while the 10-year
comprehensive plan recognizes that the removal of brush and small trees in
populated areas helps to reduce the risk of forest fire, H.R. 5319 does not
provide any limit on the size of trees to be removed as part of the
"treatment" process, nor does it limit removal to populated areas. The bill
calls upon the secretary of Agriculture to give priority to projects on
federal lands located in more populated areas [in the "wildland-urban
interface"] and in proximity to municipal water supplies, but it also includes
"priority" forest lands that are "windthrown or at
high risk of reburn."[25]
Depending on how it is interpreted, this last category could open to logging
projects relatively untouched forests distant from populated areas.
The bill also provides little
guidance as to the level of analysis that the CEQ
should require for these emergency expedited reviews. It indicates that the
review should include an "abbreviated statement by the Secretary [of
Agriculture]" on "[1] the purpose and need of the agency action; [2] the
environmental effects of the agency action; [3] the results of consultation
required under section 7 of the Endangered Species Act of 1973 ... or other
provision of law if required for agency action; and [4] the general categories
and themes of public comment received on the agency action."[26]
Notably absent from this list of requirements is consideration of alternatives
to the proposed project - one of the most important components of the
NEPA environmental review process. Under this
framework, the Secretary apparently need only make a brief statement about the
effects of the proposed action, without providing any analysis with respect to
the effects and without actually considering and responding to public concerns
or other viable [and potentially more environmentally friendly] alternatives.
The bill's directive to the
CEQ to promulgate the expedited review rules
without public notice and comment[27]
will allow the agency to eliminate some of NEPA's
most important analysis and public comment requirements without permitting the
public [which benefits from the review process] to participate. Once again,
this is contrary to the very purpose of NEPA, as
well as the APA, to open agency decision-making
processes to public scrutiny and prevent capture of agencies by special
interests.
The bill also seeks to limit
judicial review of agency decisions that will be made under the new expedited
review. Courts are to render decisions on any challenges to proposed projects
within 45 days, "unless the court determines that a longer period of time is
required to satisfy the requirements of the United States Constitution," and
they are encouraged to refer the matters to special masters if they will be
unable to render a decision within the required time period.[28]
Such a further expedited review by the courts also has the potential to allow
environmentally harmful projects to move forward without the scrutiny
necessary to determine their true impact.
No bill comparable to H.R.
5319 has been introduced in the Senate, although Senator Larry Craig R.-Ind.,
introduced an amendment to the Department of the Interior appropriations bill
that is currently being considered by the Senate.[29]
However, consideration of that bill has stalled and it is unlikely to be
passed before the end of the current session.[30]
H.R. 5319 itself is now being considered by the full House, but given the
recent campaigning recess and the limited time left in this term, it is highly
unlikely that it will be passed before the end of the 107th Congress.
Nevertheless, the danger of a similar bill being introduced in the next
Congress is significant and the chance of its
passage will greatly increase
if the balance of power in the Senate changes in November. Given the White
House's support for exempting "fire treatment" projects from
NEPA, it is highly likely that a similar measure
will be proposed and considered again by the 108th Congress.
There have been various other
proposals made recently that seek to undermine NEPA
in other areas. For example, on May 18, 2001, President Bush issued Executive
Order 13212, which directs agencies to expedite review of permits in
"energy-related projects."[31]
In a more direct assault on NEPA, President Bush
has established a NEPA Task Force, the purpose of
which is to review and streamline NEPA.[32]
In addition to efforts by the administration, members of Congress have
introduced legislation that includes provisions either providing for a lesser
NEPA review or calling for the exemption of
projects from review entirely. A recent example is an amendment to the Energy
Bill [H.R. 4] by Senator Ben Nighthorse Campbell, R.-Colo.,
that would waive NEPA requirements to allow
accelerated development of energy sources on tribal lands.[33]
Each of these proposals, if
adopted, would quietly work to undermine the environmental protection provided
by NEPA and allow potentially harmful projects to
move forward with little or no attention to the impacts on the environment and
on nearby communities. They would also begin a gradual process of excluding
the public from agency decision-making.
If passed, H.R. 5319 would
accomplish its goal of reducing delay in the environmental review process.
However, the method by which it seeks to do so would also likely lead to
approval of projects that, under the guise of fire prevention, would allow
logging in pristine areas that, because of their distance from populated
areas, pose little or no risk to communities. The bill, along with the other
recent proposals mentioned above, would also set a dangerous precedent for
undermining or circumventing NEPA's environmental
review requirements in a broad array of environmentally sensitive areas and
contribute to the erosion of the most significant of U.S. environmental laws.
Stephen L.
Kass and Jean M. McCarroll, together with Clifford
P. Case, direct the environmental practice group at the New York City firm of
Carter, Ledyard & Milburn. Allison F. Gardner, an associate at the firm,
assisted in the preparation of this article.
This article is reprinted with permission from
the October 25, 2002 edition of the New York Law Journal.
8
2002 NLP IP Company.
Footnotes
[1]
Bill Status Report for Healthy Forests Reform Act, H.R.
5319,107th Cong. [2002], available at http://thomas.loc.gov [last visited
Oct. 17, 2002].
[2]
42 U.S.C. @4321.
[3]
Id. @4332[C][i]-[ii].
[4]
Id. @4332[C][iii]-[v].
[5]
40 C.F.R. @1506.6 [2001].
[6]
16 U.S.C. @706[a].
[7]
Id. @706[j].
[8]
Id
[9]
HEALTHY FORESTS: AN INITIATIVE FOR WILDFIRE PREVENTION AND STRONGER
COMMUNITIES 2 [Aug. 22, 2002].
[10]
H.R. 5319, @101[a].
[11]
See SIERRA CLUB, FOREST FIRES: BEYOND THE HEAT AND HYPE 5 [undated],available
at http://www.sierraclub.org [last visited Oct. 17, 2002]; SOCIETY OF AMERICAN FORESTERS, POSITION
STATEMENT: FIRE MANAGEMENT IN FOREST AND RANGE ECOSYSTEMS, Dec. 8, 1997,
available at http://www.safnet.org/policy/psst/psst20.html [last visited
Oct. 17, 2002].
[12]
A COLLABORATIVE APPROACH FOR REDUCING WILDLAND
FIRE RISKS TO COMMUNITIES AND THE ENVIRONMENT: 10-YEAR COMPREHENSIVE
STRATEGY 9 [August 2001].
[13]
See National Fire Plan: Fire Science and Technology Development, available at
http://www.fireplan.gov/fire_science_1_28_02.cfm [last visited Oct.18,
2002].
[14]
10-YEAR COMPREHENSIVE STRATEGY at 5.
[15]
A COLLABORATIVE APPROACH FOR REDUCING WILDLAND
FIRE RISKS TO COMMUNITIES AND THE ENVIRONMENT: 10-YEAR COMPREHENSIVE
STRATEGY IMPLEMENTATION PLAN [May 2002].
[16]
H.R. 5319, @101[a].
[17]
Id. @101[b].
[18]
Id.
[19]
Id. @101[d].
[20]
Id. @101[e][1][A].
[21]
40 C.F.R. @1506.10[b][1] [2001].
[22]
Id. @1506.10[b][2].
[23]
Id. @1506.10[c].
[24]
H.R. 5319, @101[g].
[25]
Id. @101[c][4].
[26]
Id. @102.
[27]
Id. @101[h].
[28]
Id. @104[c].
[29]
S.Amdt. 4480 to Department of the Interior and
Related Agencies Appropriation Act, H.R. 5093, 107th Cong. [2002] available
at http://thomas.loc.gov [last visited Oct. 17, 2002].
[30]
Bill Status Report for H.R. 5093, available at
http://thomas.loc.gov [last visited Oct.
17, 2002].
[31]
66 Fed. Reg. 28357 [May 22, 2001].
[32]
67 Fed. Reg. 45510 [July 9, 2002].
[33]
Energy Policy Act of 2002, H.R. 4, 107th Cong. @404[e][3][2002].
Stephen L. Kass and Jean M.
McCarroll, together with Clifford
P. Case, direct the Environmental Practice Group at Carter, Ledyard &
Milburn. Allison F. Gardner, an associate at the firm, assisted in the
preparation of this article.
Read more American Lawyer Media news on the web on law.com.
Reprinted with permission
from the May 5, 2003 edition of The New
York Law Journal © 2003 ALM Properties, Inc. All rights reserved. Further
duplication without permission is prohibited.
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