Tough look at a key environmental law - National Environmental Policy Act - shall it end?
November 28, 2005 edition -
A tough look at a key environmental law
A congressional group finishes public hearings on law that assesses
impacts of federal projects.
By Brad Knickerbocker | Staff writer of The Christian Science Monitor
The National Environmental Policy Act - known as the Magna Carta of US
environmental laws - is under intense political scrutiny.
For 35 years, NEPA has required that everything built or operated on
federal land that "significantly affects the quality of the human
environment" be scrutinized for its impact. Thousands of construction
projects and other ventures - from highways, dams, and water projects to
military bases and oil drilling - have been adjusted and in some cases
scrapped because of the law.
The requirements of this Nixon-era act have done much for environmental
protection, its supporters say. NEPA also has acted as a "sunshine law,"
opening the political process involving such decisions to all Americans
through "environmental impact statements" allowing for public comment.
But the law has also been the basis for hundreds of lawsuits, in effect
becoming a tool for activists to slow or kill many projects. NEPA also has
greatly added to the cost of public works, energy development, and other
beneficial projects, critics say. Most recently, it has been charged,
environmental lawsuits under NEPA stymied US Army Corps of Engineers plans
that might have lessened the impact of hurricane Katrina along the Gulf
A congressional task has just ended a series of public hearings in five
states and Washington, D.C. Lawmakers heard from a range of interests -
the New Mexico Cattle Growers' Association, the Women's Mining Coalition,
the Zuni Tribe, the Sierra Club, energy lobbyists, and local officials. A
report and recommendations from the task force are expected shortly. It's
unclear whether these will produce major changes to NEPA, as some
environmental activists fear, or merely tweaks in the law.
Task force's marching orders
In either case, the working premise of the 20-member task force has been
made clear by its chairwoman: "What started as an overly vague
single-paragraph statute is now 25 pages of regulations, 1,500 court
cases, and hundreds of pending lawsuits that are blocking important
projects and economic growth," said Rep. Cathy McMorris (R) of Washington.
"Too often we are hearing horror stories about endless reams of paper
needed to complete the environmental impact statements."
The law's supporters see it as a "look-before-you-leap" measure that has
brought about a new way of considering long-range environmental impacts of
things like river dredging, new power plants, and waste disposal. In the
case of New Orleans, environmentalists point out, the US Army Corps of
Engineers responded to a NEPA challenge (upheld by a federal judge in
1977) by withdrawing its plan for new levees. "Flooding would have been
worse if the original proposed design had been built," a Government
Accountability Office official recently told a House Appropriations
Though supporters of the existing NEPA may be outnumbered in Congress,
they have their champions. "Where critics see delay, I see deliberation,"
Rep. Tom Udall (D) of New Mexico said at the last task force hearing Nov.
17. "Where they see postponed profits, I see public input. Where they see
frivolous litigation, I see citizens requiring their government to live up
to its responsibilities."
A big deal out West
The law, which covers natural resources on public land, has particular
impact on traditional Western industries - ranching, logging, mining -
especially since the federal government controls much of the land in
"I do not believe that NEPA was ever intended to halt natural-resource
use, sometimes to the detriment of natural resources, or to deprive
families and rural economies of livelihoods," Caren Cowan, executive
director of the New Mexico Cattle Growers' Association, told lawmakers.
One thing NEPA critics want is "categorical exclusions" for certain
activities that can impact the landscape - fencing and water facilities on
Western rangeland, for example. "These activities have a minimal impact on
the land but can play a critical role in putting in place a well- managed
grazing program resulting in important benefits for the resources," Idaho
rancher Brenda Richards testified earlier this month.
The Bush administration has already issued exclusions from full NEPA
review on grounds that some activities - such as salvage logging where
wildfires have burned timber on federal land - do not have major
Such exclusions, said Michael Anderson of the Wilderness Society, "greatly
diminished public participation and environmental consideration in federal
In a recent letter to Representative McMorris, 10 former White House
officials who chaired or were general counsel of the President's Council
on Environmental Quality (CEQ) in five administrations (three Republican
and two Democratic) expressed the same concern.
James Connaughton, current CEQ chairman, attributed any problems to the
law's implementation. To resolve conflicts and head off lawsuits, he said
at the last task force meeting, his office is working with the Institute
for Environmental Conflict Resolution, "bringing parties together to seek
common ground and accept compromise."
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