An effort to streamline National Environmental Protection Act (NEPA) regulation helps to clarify a basic question: Do environmental groups want to protect the environment or just impede economic activity?
The White House Council on Environmental Quality, created by NEPA, last May set up a task force to study ways to improve regulation under the landmark 1969 law. NEPA requires federal agencies to study the environmental effects of their actions and to allow the public to participate in related planning. It's an important law. It assigns environmental values the priority they deserve in federal decision-making and provides a framework for acting on them.
NEPA, however, can be improved. It should be improved.
Areas of inquiry
The NEPA task force asked for comments in six areas: technology and information management, collaboration among agencies, analytical methods that avoid redundancy, management oriented more to environmental outcomes than to rote compliance, actions that can be excluded from full NEPA regulation, and other areas of potential modernization. For a law more than 30 years old, these are reasonable areas of inquiry.
NEPA has always been creaky and has become more so with time. Designed for analysis, it is too often a tool of obstruction. It imposes procedural delays and breeds lawsuits. It also imposes costs, which sometimes balloon out of control. It stalls some projects to death and causes others never to start.
Environmental groups love NEPA for those reasons. But the law isn't supposed to be about discouraging activity; it's supposed to be about infusing activity with environmental responsibility.
The National Ocean Industries Association summarized problems with NEPA for the task force like this:
"The time, expense, and other costs of completing environmental impact statements, environmental assessments, and related documents and processes represent a major burden for businesses, local governments, and individuals. Furthermore, third parties use the procedural statute to litigate and forestall development, which causes agencies to conduct a NEPA process with the goal of creating legally 'bullet-proof' documents, rather than producing the best decision based on the best scientific and other information."
Claire Moseley, executive director of Public Lands Advocacy, a Denver nonprofit organization representing oil and gas producers, told the task force that officials' efforts to immunize NEPA documents against legal challenge make public review difficult. They yield "costly, time-consuming, excessively broad studies, inventories, and analyses, which result in incredibly cumbersome and extraordinarily complex documents," she said. "It is literally impossible for the general public to understand these documents, and it is also difficult for other interested parties to analyze and review them due to the enormous volume of documentation and the time-consuming nature of such a review." Yet the bloated analysis hasn't discouraged appeals, she added.
Problems with NEPA-related costs and delays have plagued operators in the US West for many years. In 1998 testimony to a House resources committee oversight hearing, an operator with 128,000 acres under coalbed methane leases in Utah told a common story. Hoping to drill as many as 1,000 wells, River Gas Corp., Northport, Ala., filed a proposal in 1994 with the BLM under a process that it expected to cost $200,000 and take 1 year to complete. Instead, the company spent 3 years and $1.3 million to produce the environmental impact statement, even though there was no environmental opposition. Most resistance came from within BLM itself (OGJ, Apr. 6, 1998, p. 38).
'Under attack'
Environmental groups will greet any move to change the NEPA process with suspicion, partly because it has been such a handy way for some of them to block activity that could safely have progressed. The Natural Resources Defense Counsel lists the task force initiative as a way the administration of President George W. Bush has, in its view, placed NEPA "at risk." It says the law is "under attack" because it "presents a legal obstacle to the administration's antienvironment, proindustry agenda."
Yet no serious effort is under way to change the law or to overhaul the associated regulations—and certainly not to weaken or repeal them. The task force is focusing on implementation, the part of NEPA most needing repair. NEPA's core ingenuity is the integration of environmental protection with federally sanctioned work. The aim is work that's environmentally safe, not work that never happens.
