House task force offers NEPA reform proposals

Nick Snow
Washington Correspondent

WASHINGTON, DC, Dec. 27 -- A US House Resources Committee task force has proposed establishing a 180-day time limit for legal challenges to final federal agency decisions under the National Environmental Policy Act.

The group also recommended requiring litigants to demonstrate that the "best available information and science" was not involved in reaching the decision, and to be involved "throughout the process in order to have standing in an appeal."

It suggested that guidelines on who has legal standing to appeal should consider such factors as "the challenger's relationship to the proposed federal action, the extent to which the challenger is directly impacted by the action, and whether the challenger was engaged in the NEPA process prior to filing the action."

The proposals are part of a 30-page draft that the task force issued on Dec. 21, 2005, after 7 months of public hearings on the law. It will receive public comments specifically about the document's recommendations or findings through Feb. 6, 2006.

Rep. Cathy McMorris (R-Wash.), the Resources Committee member who chaired the task force, said that it developed 22 proposed recommendations from testimony at the public hearings and thousands of public comments.

"The 45-day comment period reflects the character of this task force and of NEPA itself. I look forward to receiving additional input from the public once again," she said.

Litigation issues were one of nine groups under which the task force categorized the recommendations it drafted. Others included addressing delays in the NEPA process, enhancing public participation and improving federal agency coordination.

"The task force heard diverse opinions on whether or how to improve NEPA. I am committed to providing practical recommendations that take these views into account," McMorris said.

Rep. Tom Udall (D-NM) was the task force's ranking minority member. Other Resources Committee members on it included Ken Calvert (R-Calif.), George Miller (D-Calif.), Jim Gibbons (R-Nev.), Mark Udall (D-Colo.), Thelma D. Drake (R-Va.) and Louie Gohmert (R-Tex.).

'Strong beliefs'
"The topic of changing NEPA elicited strong beliefs that changes are necessary and would be productive. There were equally strong beliefs that potential changes to NEPA or its regulations, in any way, would undermine the effectiveness of the law," the draft report notes in its summary.

"Litigation was seen by many as the single biggest challenge with the NEPA process—and one of the most effective tools for ensuring its success," it continues.

Few actual lawsuits apparently have been filed under the law, but it is more difficult to measure "the perception or threat of litigation and the impact it has had on the NEPA process," the summary adds.

The draft report says that the question of how and whether to change NEPA was "hotly debated." Many witnesses and comments said that no changes should be made in the law or attendant regulations under the Council on Environmental Quality.

Others suggested that changing NEPA or creating additional regulation "would create a better process through increased certainty and clarity," the draft report says.

It adds that some task force members and submitted comments suggested that a burden of proof should be met before considering changes in the law. Those who advocated changes, it says, cited as specific reasons:

-- Uncertainty that undermines public participation in the NEPA process.

-- Exclusion of state, local, and tribal entities from the process.

-- Compliance costs that can run into millions of dollars.

-- Delays that can result in the cancellation of projects.

"At a minimum, these reasons sustain calls for modest changes to NEPA and its regulations," the task force's draft report says.

Contact Nick Snow at nsnow@cox.net.

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