Bedrock environmental law takes a beating

Pombo’s task force tears into the National Environmental Policy Act

  • Congressman Tom Udall, D-N.M., flanked by, from left, Reps. Chris Cannon, Cathy Morris and Raul Grijalva at the NEPA hearing in Rio Rancho, New Mexico


RIO RANCHO, New Mexico — As registering students chat in the glaring heat outside Rio Rancho High School, a more subdued crowd fills the school’s darkened auditorium: Lanky men in pressed Wranglers and new cowboy hats and environmentalists wearing "I support NEPA" stickers all await testimony about the National Environmental Policy Act (NEPA).

When President Richard Nixon signed NEPA in 1970, the law required unprecedented environmental studies and public input for projects involving federal land or money. But Republican lawmakers have become increasingly critical of the law — and now, the House Resources Committee, chaired by Rep. Richard Pombo, R-Calif., is holding six hearings across the country to solicit input about it (HCN, 7/25/05: Will the real Mr. Pombo please stand up?).

"This region will provide clear examples of two of the themes that have emerged from previous hearings: NEPA is a process that is too long and too litigious," reads a Resources Committee briefing distributed to the press at the hearing. And indeed, this Aug. 1 hearing turns out to be stacked against the environmental law.

The NEPA task force members in attendance include Republican Reps. Cathy McMorris, Wash., and Chris Cannon, Utah, and Democratic Congressmen Tom Udall, N.M., and Raúl Grijalva, Ariz. The 14 witnesses include three energy executives, two state officials, two ranchers, two American Indians, a city councilor, a property-rights attorney, a former lieutenant governor, a biologist, and a former county commissioner with ties to the timber industry. No members of any environmental groups sit upon the stage.

Industry dominates

Four of the witnesses defend NEPA. Calbert Seciwa with Zuni Pueblo is a founding member of the Zuni Salt Lake Coalition, which successfully defeated a coal mine proposal near an area sacred to the tribe. He explains that without the law — which requires the federal government to notify local communities of projects and allow the public to comment — "we would have been both uninformed and voiceless" (HCN, 2/2/04: Uranium mill or dump?).

The remaining 10 witnesses take swipes at the law, but today’s spotlight clearly belongs to the energy industry. Dave Brown of BP America recommends that federal agencies grant "categorical exclusions" for permitting and leasing of oil and gas projects — that is, no environmental studies would be required. He also asks that outside parties be prevented from commenting on proposals, and recommends that taxpayers, rather than industry itself, fund environmental studies.

Duane Zavadil of the Bill Barrett Corp. complains that seismic tests — in which specialized trucks send vibrations deep into the earth, seeking underground fossil fuel deposits — "have been proven to have absolutely no environmental impact" but that NEPA still requires industry to conduct extensive studies. NEPA, he says, "has become cumbersome and fraught with delays," and these delays are paid for by consumers.

Richard Fraley of Burlington Resources recommends that well pads of five acres or less be eligible for categorical exclusions. Burlington, the largest producer of natural gas in New Mexico, already operates more than 6,500 wells in the state — almost all on pads of less than five acres. Fraley also says Congress should provide "additional funding to BLM offices with high oil and gas activity," and concludes that "NEPA constraints inhibit the production of natural gas, thereby limiting the supply and impacting the cost of living for all Americans."

Grijalva gets it on the record

It is left largely to Rep. Grijalva to respond to industry arguments. He cites a July 28, 2005, press release from Burlington, in which the company announced its fourth consecutive quarterly earnings record — and a recent record $537 million profit. Grijalva asks Fraley, "How can the task force reconcile what you’re saying here with (this press release)?" He then asks Brown why BP America supports funding positions within the agencies while at the same time it opposes attempts by the Bureau of Land Management to raise administrative fees to cover the cost of drilling applications (HCN, 8/8/05: Industry embeds its own in the BLM).

Grijalva also questions Sue Kupillas, with the Oregon-based Communities for Healthy Forests. During her testimony, Kupillas blamed NEPA for logging delays after the Biscuit Fire — a 2002 fire that burned nearly 500,000 acres (HCN, 5/16/05: Unsalvageable). Grijalva says environmentalists did not oppose the Forest Service’s plan until the Bush administration revised it from a harvest of 96 million board-feet to more than 500 million board-feet: "I don’t know (if) that’s a NEPA issue, but overreaching on the part of the administration" (HCN, 5/16/05: Unsalvageable).

Karen Budd-Falen, a property-rights attorney in Cheyenne, had lugged six bankers’ boxes of grazing documents onto the stage. She opined that "in today’s rampant environmental litigation environment, it is extremely difficult to imagine that (any) federal decision or action can escape NEPA review." When Grijalva asks her if she has ever used NEPA to litigate on the part of ranchers or farmers, Budd-Falen says yes, over the release of Mexican wolves in the Southwest. Grijalva responds with another question: "So, the saying ‘what’s good for the goose’ does not apply here?"

Asked afterwards if his questions will change conservative minds in Congress, Grijalva shrugs: "I just try to make them uncomfortable. Even if they don’t answer my questions, it doesn’t matter — it’s on the record."

Neither the Resources Committee nor the task force’s press team returned calls, but Glen Loveland, Rep. Udall’s press secretary, says of the selection process for witnesses: "We submitted some names, (and Republican Rep. McMorris’ staff) submitted some names, but it’s pretty common with a Resources Committee hearing that (the Republicans) always have more witnesses than we do — no matter what the hearing topic is."

Once the nationwide hearings end this year, the Resources Committee plans to report its findings to Congress. But Congress is already moving ahead on some fronts: The energy bill, signed by President Bush in New Mexico on Aug. 8, allows categorical exclusions for certain oil and gas activities, and the transportation bill, signed Aug. 10, "expedites" the NEPA process for certain transportation projects.

"Everybody wants their own private exemptions," says Forest Guardians Executive Director John Horning. "And at the end of the day, there’s going to be nothing left standing."

 The author is HCN’s Southwest editor.

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