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Know the West

Bush undermines bedrock environmental law

After 33 years, the National Environmental Policy Act may be 'streamlined'


Note: A sidebar article accompanied this story: "Forests could lose environmental review."

What has the National Environmental Policy Act done lately?

It has forced the U.S. Bureau of Reclamation to scale down its wildly unpopular Animas-La Plata dam project in southwestern Colorado; it has given citizens a fighting chance against proposed silver and copper mines beneath the Cabinet Mountains Wilderness in western Montana; and it has lent a voice to people in every state in the planning of roads, nuclear waste dumps, oil wells, power plants, pipelines and timber cuts.

"NEPA is a democratic law: It lets people get involved in the process," says John Pittenger, a biologist with Blue Earth Ecological Consultants in Santa Fe, N.M.

NEPA, signed into law by President Nixon in 1969, was meant to anchor environmental protection to one law that all federal agencies must follow. The act requires environmental impact statements and public comment periods and allows citizens to appeal agency decisions. It has weathered the political winds of six administrations and survived intact, with only one amendment - to build the trans-Alaska pipeline without delay in 1972 - for 33 years.

But the Bush administration has been chipping away at this bedrock environmental law. In May 2001, using the pretext of an impending energy crisis, President Bush issued an executive order to expedite oil and gas drilling on public lands (HCN, 9/2/02: Bush's energy push). While a federal task force has started looking at ways to "streamline" NEPA, the administration's proposed Healthy Forests Initiative would exempt some timber projects from the law (see story below). Now, thanks to another executive order, some proposed highways and airports may get green lights without substantive environmental review.

"The transportation executive order follows the same pattern the administration has set for all things NEPA-related," says Rob Perks with the Natural Resources Defense Council. "'Streamlining' to us is just a code word for 'steamrolling.'"

Highways in a hurry

In mid-September, President Bush ordered Secretary of Transportation Norman Mineta to create a rolling list of "high priority" projects, based on the recommendations of governors and other regional politicians. According to a Department of Transportation spokesperson, the priority list will be released by the end of the year and will include 15 to 20 projects "that have experienced or are likely to experience delays because of interagency coordination at a federal level."

Once the projects are listed, the order states that all involved agencies must "expedite their reviews for relevant permits or other approvals." The department spokesperson adds that the order is necessary because the "total time for major new highway or airport projects is 13 years and 10 years, respectively, and one third of that time is spent on the environmental review process."

For already-strapped agencies, like the U.S. Fish and Wildlife Service, this means diverting resources and staff away from endangered species listings and critical habitat studies.

The order also calls for a task force, composed of Cabinet officials, to not only shepherd current projects through the expedited environmental review process, but also to identify state, local or tribal laws that might delay future road projects.

But rushed environmental reviews may not save time in the long run.

Bush's order to streamline transportation projects came just two days after the U.S. Circuit Court of Appeals in Denver halted construction on the Legacy Highway, a road that may someday run through a 14-mile stretch of wetlands in Davis County, Utah (HCN, 4/29/02: Lake stops sprawl in its tracks ... for now). The three-judge panel concluded that the environmental impact statement for the project was "inadequate" because the federal agencies failed to consider other transportation options and impacts to wildlife. The judges also concluded that the Army Corps of Engineers' decision to build the road through wetlands was "arbitrary and capricious."

"That's what happens when the administration values expediency more than it does an appropriately careful review of the environmental impacts," says Bob Adler, a University of Utah law professor.

"Look before you leap"

Those familiar with NEPA agree that the law needs updating, but many say the Bush administration is going about it the wrong way. They argue that implementation of the law, rather than the law itself, is the problem.

"In reality, the usual delays occur when the public is not being involved early enough in the project," says the Defense Council's Perks, "so that when construction starts, people have no idea this was happening in their community, and 'NIMBYism' kicks in."

In a 1997 report, the Council on Environmental Quality - which coordinates environmental policies among the White House and all federal agencies - found that the "'NEPA process' is often triggered too late to be fully effective." The report, titled The National Environmental Policy Act: A Study of its Effectiveness After 25 Years, attributed construction delays to "inadequate early and continued coordination with federal and state resource agencies."

"The law was supposed to be a sort of 'look before you leap,' " says Adler. "But NEPA is more often used to justify decisions that are already made. If that's the case, then NEPA is a waste of time. Agencies need to implement the law early in the process -- before they've actually decided what to do."

"NEPA could stand improvements, but not along those lines that the Bush administration is proposing," says John Echeverria with the Georgetown Environmental Law and Policy Institute. His greatest concern: Understaffed federal agencies often contract private consulting firms to complete their environmental studies -- and more often than not, the funding for these studies comes from the developers or drillers proposing the projects under review. Rather than being actively involved throughout the course of the studies, agencies only step in for the final decision-making.

"That's what the NEPA process has evolved into over the last couple of decades," says Echeverria. "But that problem is not being addressed."

Laura Paskus is an assistant editor for High Country News.

You can contact ...

  • DOT Secretary Norman Mineta, 202/366-5580;
  • Rob Perks, Natural Resources Defense Council, 202/289-6868;
  • Or, read NEPA at: http://ceq.eh.doe.gov/nepa/regs/nepa/nepaeqia.htm.