Broader, earlier public involvement could be a realistic alternative to litigation under the National Environmental Policy Act, witnesses told a US House Resources Committee panel Nov. 17.
But others testifying before the committee’s NEPA task force said the public’s right to sue needs to be preserved to keep government bureaucrats from forcing massive projects into communities that don’t want them.
“If you take NEPA as it was enacted, its general guidance has stood the test of time. What’s been challenged is implementation, which often has been missing the point,” said James L. Connaughton, chairman of the White House Council on Environmental Quality (CEQ).
Connaughton called efforts to reform the 1970 law “not death by a thousand cuts, but improvement by many measures.” He continued, “We have 35 years of experience, and we’re supposed to learn from it. When we do, it should help us do our jobs better.”
Rep. Cathy McMorris (R-Wash.), who chairs the task force, said that as it held hearings across the country, “we have heard countless times, countless ways that NEPA is a good law, born of good intentions.”
She added, “I completely agree. We also have heard that it needs to be reformed but not gutted.”
Rep. Tom Udall (D-NM), the task force’s ranking minority member, said, “It has become apparent that the lessons we take away from this process will be different.”
Acknowledging that some witnesses have complained about their experiences under the law, Udall added, “Where they see delay, I see deliberation.”
CEQ’s NEPA efforts
Connaughton said that when he came to CEQ, he inherited “a couple of decades” of complaints about NEPA. On the advice of the council’s senior staff, he drew senior officials from federal agencies involved in NEPA implementation to address problems.
The officials became a task force within CEQ, which tried to develop recommendations that were presented at six public hearings before a report was issued.
The result, said Connaughton, was “a blueprint for action.” He said, “What’s great is that these officials are back at their agencies now, putting their recommendations to work.”
The group’s main recommendation is broader use of environmental management systems to get the public involved in NEPA deliberations earlier in the process, he indicated.
“We have a rich experience of highly successful NEPA implementation that doesn’t produce litigation and satisfies community concerns,” Connaughton said. “If you take that experience and see why it worked, we can determine how it did and try to apply this to where NEPA didn’t.”
Other witnesses disagreed over whether limits need to be placed on lawsuits filed under the law. “NEPA is enforced through citizen litigation,” said Robert G. Dreher, deputy director of the Environmental Law and Policy Institute at George Washington University’s law school in Washington, DC. “Going to an independent judge gives citizens power against federal agencies,” Dreher added.
“It’s not that there are no standards,” he said, adding, “There are sets of environmental principles that you apply, but they vary from situation to situation. Citizens inevitably will disagree over whether actions that have been taken are adequate, and they need the right to be heard.”
Nicholas C. Yost, a partner specializing in environmental and energy cases in the San Francisco office of Sonnenschein, Nath & Rosenthal LLP, said, “Were it not for litigation, no one would pay any attention to NEPA and environmental considerations.”
No plaintiffs sanctioned
Mediation or dispute resolution could become an alternative, he suggested. “It is unethical for a lawyer to bring a suit without having a basis. However, no NEPA plaintiff has ever been sanctioned by a court on this basis.”
But Nick Goldstein, managing director of the transportation officials division at the American Road and Transportation Builders Association, said that in its current state, “NEPA generates far more documents than decisions” because its provisions allow lawsuits to be filed easily.
He recommended extending a 180-day time limit for challenging transportation projects to other areas and urged development of a dispute resolution process that would make litigation “a last resort instead of a first step.”
John C. Martin, a partner specializing in energy, environmental, and other cases in Patton Boggs LLP’s Washington, DC, office, agreed that a time limit for legal challenges under NEPA is needed.
“Our clients invest hundreds of millions of dollars in projects. Sometimes, they have to confront legal challenges years after they file their initial applications,” he said.
Martin also said project opponents should be ready to become involved earlier in the NEPA process. “If someone objects to what the agency is doing, properly that person should invest himself in the process at a time when the agency can respond and include deliberations in the final EIS,” he said. ✦
