[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
 PROBLEMS AND ISSUES WITH THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                     MARCH 18, 1998, WASHINGTON, DC

                               __________

                           Serial No. 105-102

                               __________

           Printed for the use of the Committee on Resources


                               


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                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American 
WAYNE T. GILCHREST, Maryland             Samoa
KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas   ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona                SAM FARR, California
JOHN E. ENSIGN, Nevada               PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon              ADAM SMITH, Washington
CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA CHRISTIAN-GREEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               RON KIND, Wisconsin
JIM GIBBONS, Nevada                  LLOYD DOGGETT, Texas
MICHAEL D. CRAPO, Idaho

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held March 18, 1998......................................     1

Statement of Members:
    Chenoweth, Hon. Helen, a Representative in Congress from the 
      State of Idaho.............................................     3
        Prepared statement of....................................     4
        Letter of Robert S. Lynch................................    79
        Texas ``blowdown'' letters, press releases and reports...   227
    Cubin, Hon. Barbara, a Representative in Congress from the 
      State of Wyoming...........................................     2
        Prepared statement of....................................     2
    Pallone, Hon. Frank, Jr., a Representative in Congress from 
      the State of New Jersey....................................     5
        Prepared statement of....................................     6
        Chronology of Port Newark/Elizabeth Dredging Permit......   216

Statement of Witnesses:
    Allen, Randy, General Counsel, River Gas Corporation, 
      Northport, Alabama.........................................    50
        Prepared statement of....................................    79
    Byrne, Michael J., Vice Chairman of the Federal Lands 
      Committee, National Cattlemen's Beef Association, 
      Washington, DC.............................................    51
        Prepared statement of....................................   130
    Caldwell, Lynton K., Professor of Public and Environmental 
      Affairs, Indiana University, Bloomington, Indiana..........    65
        Prepared statement of....................................    88
    Chu, Dan, Executive Director, Wyoming Wildlife Federation, 
      Cheyenne, Wyoming..........................................    54
        Prepared statement of....................................    86
    Geringer, Hon. James, Governor of Wyoming, Chairman, 
      Interstate Oil and Gas Compact Commission, Oklahoma City, 
      Oklahoma, and Vice Chairman, Western Governors' 
      Association, Co-chair, Great Plains Partnership............     7
        Prepared statement of....................................   105
    Hutchinson, Howard, Executive Director, Coalition of Arizona/
      New Mexico Counties for Stable Economic Growth, Glenwood, 
      New Mexico.................................................    67
        Prepared statement of....................................   206
    Leftwich, Tim J., Senior Environmental Scientist, Principal, 
      GL Environmental, Inc., Rio Rancho, New Mexico.............    62
        Prepared statement of....................................   149
    Loesel, Jim, Roanoke, Virginia...............................    64
        Prepared statement of....................................   202
    McGinty, Hon. Kathleen, Chair, Council on Environmental 
      Quality, Washington, DC....................................    11
        Prepared statement of....................................   113
    Norton, Hon. Gale, Attorney General, State of Colorado, 
      Denver, Colorado...........................................    14
        Prepared statement of....................................   123
    Scarlett, Lynn, Reason Public Policy Institute, Los Angeles, 
      California.................................................    56
        Prepared statement of....................................   140

Additional material supplied:
    American Farm Bureau Federation, Washington, DC, prepared 
      statement of...............................................   102
    American Forest & Paper Assoc., prepared statement of........   264
    American Petroleum Institute, the Natural Gas Supply 
      Association, the Independent Petroleum Association of 
      America, the Mid-Continent Oil and Gas Association, the 
      Western States Petroleum Association, and the National 
      Ocean Industries Association, prepared statement of........   100
    Borrone, Lillian C., Director, Port Commerce, The Port 
      Authority of New York & New Jersey.........................    92
    Browner, Carol M., Administrator, Environmental Protection 
      Agency, Federico F. Pena, Secretary, Dept. of 
      Transportation, Togo D. West, Jr., Secretary, Department of 
      the Army, prepared statement of............................    94
    East Texas Wind Storm--Sabine National Forest................   222
    Green River Basin Advisory Committee, NEPA Streamlining 
      Recommendations............................................   277
    Penelas, Hon. Alex, Mayor, Miami-Dade County, prepared 
      statement of...............................................    99
    Problems and Issues with the National Environment Policy Act 
      of 1969....................................................   223
    Rocky Mountain Oil & Gas Association, prepared statement of..    96
    The National Environmental Policy Act Impact on Public Lands 
      Mineral Development and Options for Reform.................   164
    Zelms, Jeffrey L., President & CEO, Doe Run Resources Corp., 
      prepared statement of......................................   269


 HEARING ON PROBLEMS AND ISSUES WITH THE NATIONAL ENVIRONMENTAL POLICY 
                              ACT OF 1969

                              ----------                              


                       WEDNESDAY, MARCH 18, 1998

                     U.S. House of Representatives,
                                    Committee on Resources,
                                                    Washington, DC.
    The Committee met, pursuant to notice, in room 1324, 
Longworth House Office Building, at 11 a.m., the Hon. Don 
Young, Chairman, presiding,
    Members present: Representatives Young, Chenoweth, Cannon, 
Gibbons, Hill, Hinchey, Pallone, Pombo, Thornberry, Cubin, 
Hansen, Saxton, Vento, Crapo, and John.
    Chairman.Young. The Committee will come to order. Today we 
are gathered to examine problems and issues with the National 
Environmental Policy Act of 1969.
    NEPA is prime for an oversight hearing. It is the product 
of 1960's thinking, with no legislative or regulatory change to 
speak of over 20 years. NEPA is experiencing many problems. 
This White House's neglect, abuse, and avoidance of its NEPA 
responsibilities are serious issues.
    The Council on Environmental Policy was created by NEPA to 
administer the Act. Ms. McGinty is now the only member of the 
poorly named council. Just a few weeks ago, Ms. McGinty, you 
told Congressman Lewis, who is the Chairman of your 
Appropriations Subcommittee, that NEPA reinvention was your top 
priority; yet, you have only a tiny fraction, of any, of your 
staff working on this project.
    Specifically, Ray Clark is supposed to be your NEPA man, 
but he's spending his time now on your controversial American 
Heritage Rivers program.
    When he was in Montana last week, Mr. Clark got quite a 
feel for the distaste that many of our constituents harbor 
about that program, which the CEQ is trying to orchestrate. You 
told Congresswoman Carrie Meek a couple of years ago that the 
Homestead Air Force District in her Miami District would be 
free of its NEPA problems under your oversight. This 
Administration said Homestead was on the fast track to gainful 
use. Today Homestead lies barren. The local economy is 
suffering. We have testimony from the Mayor of Miami-Dade 
County as to these facts.
    You told members of the Utah delegation to Congress that 
this Administration was not moving forward on any plans for the 
monument designation in Utah. By subpoenaing your e-mail, our 
staff has documented that not only did you purposely keep 
members of the Utah delegation in the dark, but you also worked 
to designate the monument as an end-run around the National 
Environmental Policy Act that you're supposed to be 
administrating.
    Now you're working on a moratorium on the roads in national 
forests. We have seen that you've chosen to circumvent a full 
NEPA examination of the issues by using an interim rule and you 
have again thumbed your nose to this Congress and to public 
comment.
    This Administration has demonstrated that it has one set of 
standards for itself, and another for the common citizen, our 
constituents.
    I'm here to tell you that this Administration is not above 
the law or this Congress. Again, this Act has not been 
reviewed, it has neither been looked at nor had any oversight 
for the last 20-some-odd years. It is time we find out what 
NEPA is doing, where we're headed, and are we going to make 
this work for the people of America. Or, is it going to 
continue to be a process in which some here are heard and some 
are not heard.
    I think it's very unfortunate that we have now seen that 
much of the public is not heard.
    Let us go to the opening statement by Ms. Barbara Cubin at 
this time and the introduction of her one witness, please.

 STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF WYOMING

    Ms. Cubin. Mr. Chairman, I will submit my opening statement 
to the record. I was just looking for it and I don't want to 
hold the Committee up.
    But I am honored to introduce our first witness; that would 
be Governor Jim Geringer from the great, greatest State of 
Wyoming. Jim and I have been friends for a long time. We served 
in the Wyoming State Legislature together, first of all, in the 
State House and then in the State Senate.
    Jim is very knowledgeable about all of the issues that are 
in front of this Committee and it is a great honor for me to 
introduce my friend and my Governor, the Honorable Jim 
Geringer.
    [The prepared statement of the Hon. Barbara Cubin follows:]

Statement of Hon. Barbara Cubin, a Representative in Congress from the 
                            State of Wyoming

    Mr. Chairman, thank you for holding this oversight hearing 
today on the problems and issues associated with the National 
Environmental Policy Act (NEPA). I'm pleased to see that my 
friend and colleague, Governor Geringer, is here to testify on 
behalf of our State and I look forward to his testimony. The 
Governor will also be appearing before my own Subcommittee 
tomorrow to discuss royalty-in-kind for OCS and Federal oil and 
gas leases, so I feel fortunate to have him here for two days 
to provide us with the benefit of his counsel on these 
important issues.
    Although I believe that NEPA was never intended to mandate 
particular results, but simply to prescribe the necessary 
processes to allow Federal agencies to understand the 
environmental consequences of a particular action, my fear is 
that we have really moved in the opposite direction. By that I 
mean that we have so many competing interests involved in a 
Federal agency action--some with much at stake, others with 
nothing at stake--that various groups often tend to impose 
their will upon an agency to make a particular decision, 
regardless of what the true scientific facts are.
    But more often that not, what we see and have seen in 
Wyoming as Governor Geringer will attest to here today is the 
lack of cooperation among the State and Federal agencies. 
Decisions are routinely made without the State's consent or 
comments or worse still, State's comments and concerns are 
ignored. This style of management is simply unacceptable and 
merely leads to friction in what could and should be a more 
collaborative process.
    In Wyoming for example, in response to a number of concerns 
and appeals surrounding the impacts of oil and gas development 
on Federal lands, Secretary Babbitt and Assistant Secretary 
Armstrong insisted on putting together an advisory council to 
look at ways in which to streamline the leasing process in the 
Green River Basin in Wyoming. Although I will be the first to 
admit that I was fairly skeptical about this committee, I think 
in the end the group came up with some reasonable 
recommendations to resolve resource conflicts on public lands. 
Regrettably, I don't believe many of those recommendations were 
adopted by the Interior Department, but the committee does 
demonstrate that consensus can be reached when varying 
interests are included from the outset in a particular issue.
    In stark contrast, however, is the American Heritage Rivers 
Initiative (AHRI), a product of the President's 1996 State of 
the Union Address which later became an Executive Order 
mandate. Notwithstanding the fact that this initiative involved 
twelve Federal agencies and would have a tremendous impact on 
our States and rural communities, no Environmental Impact 
Statement was ever prepared on the AHRI. While I realize the 
President's Council on Environmental Quality (CEQ) has some 
leeway in excluding certain Federal initiatives from the NEPA 
process, I am still puzzled as to how or why that could be the 
case with AHRI. I intend to quiz Ms. McGinty on that very issue 
when my turn for questioning comes around.
    Mr. Chairman, there is no doubt in my mind that NEPA was a 
well-intentioned law aimed at providing Federal agencies with 
the necessary tools to make decisions about how resource 
development projects might affect our environment and examine 
ways in which to mitigate those impacts. But I also think of it 
as a law of unintended consequences. I hear numerous complaints 
from my constituents on a regular basis complaining of the 
unnecessary delays associated with Environmental Assessments 
and EIS's, not to mention the costs incurred with the work 
product. So I hope if nothing else, we can come away from this 
hearing with some solid ideas on how to improve the NEPA 
process. With a little help and consistency from both State and 
Federal agencies across the country, we can not only improve 
the contents of NEPA documentation, but we can reduce the time 
frame allotted to them and, accordingly, the size of the text 
and review time necessary for local authorities. I look forward 
to working with the members of the Committee on that important 
effort.

    Chairman Young. I thank the kind lady. Are there any other 
opening statements at this time, before I call the rest of the 
witnesses? Ms. Chenoweth?
    Ms. Chenoweth. Mr. Chairman, I have an opening statement.
    Chairman Young. Yes, ma'am. You are recognized.

STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF IDAHO

    Ms. Chenoweth. Mr. Chairman, I want to thank you for 
holding this oversight hearing on the implementation, 
application and successes of the National Environmental Policy 
Act.
    Mr. Chairman, from my vantage point, the application and 
implementation of NEPA by the Clinton-Gore Administration has 
not been based on science, as the Act requires, but on pure 
politics. Take, for instance, a recent blow-down in the Sabine 
National Forest in eastern Texas and this--I will send this up 
for your perusal, Mr. Chairman.
----------
    Sabine photograph on page 222

    Roughly 102,000 acres of trees were blown down, broken and 
lying on the forest floor. This is indeed a catastrophic event 
and the waivers provided by CEQ were correct and needed. These 
waivers allow logging companies to go in and harvest the dead 
trees, clean the forest floor, protect the area from wildfire, 
and, thus, save the Sabine National Forest's health.
    I would like to publicly congratulate Ms. McGinty and Vice 
President Al Gore, who became personally involved in the 
salvage operation in east Texas, which just happens to be in 
the district of our Democratic colleague, Jim Tanner.
    I thank them for moving quickly in Texas by waiving NEPA to 
achieve forest health objectives. Contrast this with what is 
happening in Idaho. In northern Idaho, the Idaho Panhandle 
National Forest, we suffered ice storm damages on thousands of 
acres, and I fail to see why the Administration can do the 
right thing in Texas, but fails to do so in Idaho, Washington, 
Montana, California, Wyoming, Utah, New Mexico and Colorado.
    Unfortunately, this appears to be a pattern. Just two weeks 
ago we held a hearing on the application of the Endangered 
Species Act and the hearing and numbers only confirmed what 
most of us already believed. More than half of the budgets of 
both the National Marine Fisheries Service and the Fish and 
Wildlife Service go to the west and, in the case of National 
Marine Fisheries Service, more than 70 percent of its 
enforcement budget goes to the northwest.
    Most of the Federal Endangered Species listings and 
jeopardy findings are in the west, this in spite of the fact 
that the eastern states have listed more than a thousand 
species, listing the Federal agencies have fully ignored. And 
to make matters worse, NMFS applies different criteria to the 
Atlantic Salmon and the Pacific Salmon.
    The latest attack, the Clinton-Gore roadless moratorium is 
a wholesale sidestep of NEPA and the Administrative Procedures 
Act. Even though the proposal threatens the health of the 
forest, the economic well-being of communities, the livelihoods 
of families, the Forest Service is planning open houses.
    I ask, Mr. Chairman, on this major Federal action, where is 
the opportunity for the public comment and input? There are no 
hearings, as required for significant Federal actions; only 
opportunities for the agencies to engage in propaganda. This is 
terrible.
    Why is this, Mr. Chairman? From my vantage point, it's pure 
politics.
    Again, I want to thank you for holding this hearing and I 
look forward to questioning our witnesses.
    [The prepared statement of the Hon. Helen Chenoweth 
follows:]

 Statement of Hon. Helen Chenoweth, a Representative in Congress from 
                           the State of Idaho

    Mr. Chairman, thank you for holding this oversight hearing 
on the implementation, application and successes of the 
National Environmental Policy Act, otherwise known as NEPA. 
This is an incredibly important issue to my state.
    Mr. Chairman, from my vantage point, the application and 
implementation of NEPA by the Clinton-Gore Administration has 
not been based on science as the Act requires; but on politics. 
Take for instance a recent blowdown in the Sabine National 
Forest in Eastern Texas.
    Roughly 102,000 acres of trees were broken and lying on the 
forest floor. This is indeed a catastrophic event, and the 
waivers provided by the Council on Environmental Quality (CEQ) 
were correct and needed. These waivers allow logging companies 
to go in and harvest the dead trees, clean the forest floor, 
protect the area from wild fire, and thus save the Sabine 
National Forest's health.
    I would like to publicly congratulate Katie McGinty and 
Vice President Al Gore who became personally involved in the 
salvage operation in East Texas, which just happens to be in 
the district of our Democratic colleague Jim Tanner. I thank 
them for moving quickly in Texas, by waiving NEPA, to achieve 
forest health objectives.
    Contrast this with what has happened in Idaho. In northern 
Idaho's Panhandle National Forest, we suffered ice storm 
damages on thousands of acres. I fail to see why the 
Administration can do the right thing in Texas, but fails to do 
so in Idaho, Washington, Montana, California, Wyoming, Utah, 
New Mexico and Colorado.
    Unfortunately, this appears to be a pattern. Just two weeks 
ago, we held a hearing on the application of the Endangered 
Species Act. The hearing and numbers only confirmed what most 
of us already believed. More than half of the budgets of both 
the National Marine and Fisheries Service and the Fish and 
Wildlife Service go to the West; and in the case of NMFS, more 
than 70 percent of its enforcement budget goes to the Northwest 
Region. Most of the Federal endangered species listings and 
jeopardy findings are in the west; this in spite of the fact 
that the Eastern States' have listed more than a thousand 
species . . . listings the Federal agencies have fully ignored. 
To make matters worse, NMFS applies different criteria to the 
Atlantic Salmon and the Pacific Salmon.
    The latest attack, the Clinton-Gore Roadless Moratorium, is 
a wholesale sidestep of NEPA and the Administrative Procedures 
Act. Even though the proposal threatens the health of the 
forests, the economic well-being of communities, the 
livelihoods of families, the Forest Service is planning Open 
Houses!!! I ask, Mr. Chairman, on this major Federal action, 
where is the opportunity for public comment and input? There 
are no hearings as required for significant Federal actions, 
only opportunities for the agency to engage in propaganda. This 
is horrible.
    Why is this, Mr. Chairman? From my vantage point, it's 
politics!
    I look forward to questioning our witnesses.

    Chairman Young. Mr. Pallone.

   STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF NEW JERSEY

    Mr. Pallone. Thank you, Mr. Chairman. I just wanted to say 
that NEPA is, in many ways, the most important of all 
environmental legislation. It was the first and still key 
environmental statute that sprang up in the early 1970's, when 
Americans demanded action to address environmental quality in 
context of the first Earth Day.
    And unlike other environmental statutes, the target is 
specific aspects of environmental protection, like the Clean 
Water Act. NEPA is fundamental to overall environmental 
problems. It requires the Federal Government to consider the 
environmental impacts of its actions and, even more 
importantly, NEPA often provides the only opportunity for 
public comment on these Federal proposals.
    If nothing else can speak to the effectiveness of NEPA, 
then it is the number of attempts to waive NEPA in the 104th 
and 105th Congresses.
    But I have to say that the possibility--possibly the most 
effective aspect of NEPA, in my opinion, is the Council of 
Environmental Quality, which is actually formed under the 
statute. I simply cannot say enough good things about the CEQ. 
And I'm not just saying it because Katie McGinty is here today 
to testify.
    I want to just give an example, very briefly. CEQ was 
instrumental in the New York/New Jersey area in eliminating the 
gridlock on a very controversial issue in our area, and that 
was the dredging and disposal of dredged material. For years, 
maintenance dredging from the Port of New York and New Jersey 
was being held up because there was no place to put 
contaminated dredged spoils.
    Traditional practice was to simply dump it in the ocean, 
just off my district, as luck would have it, and my 
constituents and I fought hard against the ocean dumping of 
these toxic sediments in what was essentially our back yard at 
the Jersey shore.
    But just as vocal on the other side of the issue were the 
port interests, both industry and labor, and in the middle were 
the Army Corps of Engineers and the EPA, which regulated and 
administered dredging and dredge disposal permits. The battle 
between these parties raged on for years, to the point where 
just a couple of years ago, New York City ended up paying 
millions of dollars to ship dredged materials to Utah and, for 
some reason, we could not come to a resolution, and that was 
until CEQ got involved.
    CEQ brought everyone to the table; the environmental 
interests, the port interests, the labor interests, the EPA, 
and the Corps, and, with CEQ's help, we finally reached an 
agreement. With their help, we finally closed the last ocean 
dumping site off the Jersey shore last fall, while, at the same 
time, moving priority dredging projects for the Port of New 
York. And now disposal alternatives are being developed that 
actually involve the beneficial reuse of this material for 
construction purposes, the same material that just a few months 
ago you couldn't pay to get rid of unless you were willing to 
send it almost clear across the country.
    CEQ was instrumental in this endeavor and I know that 
without their help, we never could have accomplished what I 
consider to be a landmark achievement for the Jersey shore and 
the Port of New York and New Jersey.
    I just have a letter from the Port of New York and New 
Jersey which expresses its support and the great work that the 
CEQ is doing. I would like to submit it for the record, with 
your permission, Mr. Chairman.
    In closing, I just wanted to thank Katie McGinty for all 
the great work that I think the CEQ is doing.
    I think this is an important example because on the one 
hand, we had the labor and business interests; on the other, we 
had the environmental interests, and she and the Council were 
able to work this out to everyone's satisfaction, so that 
everyone is, in effect, happy today, and we're also not 
shipping this stuff to Utah, which I think, I'm sure the people 
in Utah appreciate, as well.
    Thank you, Mr. Chairman.
    [The prepared statement of Representative Pallone follows:]

Statement of Hon. Frank Pallone, Jr., a Representative in Congress from 
                        the State of New Jersey

    Thank you, Mr. Chairman.
    Mr. Chairman, the National Environmental Policy Act, 
informally referred to as NEPA, is really in many ways the most 
important of all emvironmental legislation. It was the first of 
and still key environmental statute that sprang up in the early 
1970's when Americans demanded action to address environmental 
quality in the context of the first Earth Day.
    Unlike other environmental statutes that target a specific 
aspect of environmental protection like the Clean Water Act, 
NEPA is fundamental to overall environmental protection. NEPA 
requires the Federal Government to consider the environmental 
impacts of its actions. And even more importantly, NEPA often 
provides the only opportunity for public comment on these 
Federal proposals.
    If nothing else can speak to the effectiveness of NEPA, 
then it is the number of attempts to waive NEPA in the 104th 
and 105th Congresses.
    But I would have to say that possibly the most effective 
aspect of NEPA is the Council of Environmental Quality, which 
is actually formed under the statute.
    I simply cannot say enough good things about CEQ--and I'm 
not just saying that because Katie McGinty is here to testify 
before us today.
    CEQ has been instrumental in the New York-New Jersey area 
in eliminating the gridlock on a very controversial issue in 
our area--dredging and dredged material disposal. For years, 
maintenance dredging for the Port of New York and New Jersey 
was being held up because there was no place to put the 
contaminated dredged spoils. Traditional practice was to simply 
dump these contaminated spoils in the ocean, just off of my 
district--as luck would have it. My constituents and I fought 
hard against the ocean dumping of these toxic sediments in what 
was essentially our backyard at the Jersey Shore. But just as 
vocal on the other side of the issue were the port interests, 
both industry ans labor. And in the middle were the Army Corps 
of Engineers and the U.S. Environmental Protection Agency which 
regulate and administer dredging and dredged material disposal 
permits.
    The battle raged on for years, to the point where just a 
couple of years ago, New York City ended up paying millions of 
dollars to ship dredged material to Utah. For some reason, we 
could not come to a resolution. Until CEQ got involved.
    CEQ brought everyone to the table--the environmental 
interests, the port interests, the labor interests, the EPA, 
and the Corps--and with CEQ's help, we finally reached 
agreement. With CEQ's help, we finally closed the last ocean 
dump site off of the Jersey Shore last fall while at the same 
time moving priority dredging projects for the Port. And now, 
disposal alternatives are being developed that actually involve 
the beneficial re-use of this material for construction 
purposes, the same material that just a few months ago, you 
couldn't pay to get rid of unless you were willing to send it 
almost clear across the country.
    CEQ has been instrumental in this endeavor and I know that 
without their help, we never could have accomplished what I 
consider to be a landmark achievement for both the Jersey Shore 
and the Port of New York and New Jersey.
    At this time, I would like to ask that a letter from the 
Port Authority of New York and New Jersey which expresses its 
support for CEQ and the great work that they are doing be 
submitted into the record.
    In closing, I want to thank Katie McGinty for all of the 
great work that I think CEQ is doing. I look forward to 
continuing to work with her and her staff at CEQ on 
environmental issues that are important to both New Jersey and 
the Nation as a whole.
    Thank you.

    Chairman Young. Any other opening statements?
    [No response.]
    Chairman Young. If not, I will call the rest of the panel 
to the floor. Ms. McGinty and the Honorable Gale Norton, 
Attorney General of the State of Colorado. Please take your 
seats.
    Again, I want to restate, this is the first oversight 
hearing we have had on NEPA since the creation of it. We are 
here to find out where we're headed, not where we've been, and 
if there is a--I would call it a discretionary ability for the 
Council on Environmental Quality to pick certain areas to do 
things and certain areas not to do things for political 
purposes.
    If that is the case, then the Act itself is failing. 
Governor, you are welcome to the Committee and, again, with the 
kind introduction your great Congresslady made, I will not 
introduce you any further. But welcome and we look forward to 
your testimony as the Governor of one of the states nearly as 
pretty as Alaska; not quite, but nearly. Governor, you're up.

    STATEMENT OF HON. JAMES GERINGER, GOVERNOR OF WYOMING, 
 CHAIRMAN, INTERSTATE OIL AND GAS COMPACT COMMISSION, OKLAHOMA 
    CITY, OKLAHOMA; VICE CHAIRMAN OF THE WESTERN GOVERNORS' 
                          ASSOCIATION

    Mr. Geringer. Well, it's a matter of judgment, Mr. 
Chairman. Since you're the Chairman, it's your state.
    Chairman Young. Thank you, sir.
    Mr. Geringer. Thank you for the opportunity to be with you 
today and the Committee on Resources Oversight as we discuss 
the National Environmental Policy Act.
    I'm the Governor of Wyoming, though one of the 
organizations that I am chair of has its headquarters in 
Oklahoma, and that's the Interstate Oil and Gas Compact 
Commission.
    That is an organization of 36 member states and four 
international affiliates who are involved with the regulation 
and conservation of our energy resources.
    But I am here principally as the Governor of Wyoming, to 
represent its people, and also to speak for a couple of other 
organizations. I am currently the Vice Chairman of the Western 
Governors Association. Tony Knowles, Governor of Alaska, is 
chair, and we will be up in your territory next summer, Mr. 
Chairman.
    Also, I am here with the Great Plains Partnership, which I 
co-chair, along with John Sawhill of the Nature Conservancy. 
The reason I cite these organizations and their interest is 
that all of them are working to improve the process of 
involving people, our lands, our livelihood and our future in 
resource management.
    This is a people issue, Mr. Chairman, and I hope that we 
can focus on that, instead of that blasted buzzer.
    Mrs. Chenoweth. We want to make sure you're awake.
    Mr. Geringer. I see that. The National Environmental Policy 
Act was enacted in 1969, with the stated purpose of 
understanding the interrelations of all components of the 
natural environment, taking words from the purpose clause. It 
goes on to say that it's the policy of the Federal Government, 
in cooperation with state and local governments and other 
concerned public and private organizations, to create and 
maintain conditions under which we can exist to fulfill social, 
economic and other requirements of the present and future 
generations.
    I call your attention to those words, Mr. Chairman, because 
the impact and the intent have been diminished considerably 
over the years. I was reviewing some of the documents put out 
by the Council on Environmental Quality. Kathleen McGinty, 
seated with me here today, has said we have much to gain in 
finding common ground to conserve resources for future 
generations, while at the same time we provide a stable 
economic future our people.
    I call attention to those words, as well, because the 
economic considerations are not always a major factor as we 
evaluate NEPA and the other environmental Acts.
    Katie McGinty made a statement from the chair in the CEQ 
25th anniversary report that says ``Our common ground, the 
environment, has become a battleground. Somehow we have become 
a country in receivership, with the courts managing our 
forests, our rivers and our range lands.''
    In fact, Mr. Chairman, it's not just that the courts are 
directly involved in managing many of our resources, they are 
indirectly managing all of them in our states because of the 
fear of litigation, not just because of actual litigation.
    The Act called NEPA is not the problem so much as the 
implementation of the Act. It takes too long, it costs too 
much, it's spawns unending litigation, and it is so 
inconsistently implemented that each agency of the Federal 
Government has its own custom-tailoring of an approach.
    You'd likely not even have to amend NEPA at all, Mr. 
Chairman, if we could simply require the Federal Government to 
be consistent and speak with one voice. We have one President, 
one Congress. We ought to have just one Federal Government when 
it comes to speaking on issues.
    We have to change the confusing and contradictory 
regulations used by the Federal agencies to implement NEPA. In 
other words, it's not the Act, it's the actors.
    The Act is intended to require Federal, state and private 
actions that are comprehensive, with better planning, that have 
an inter-generational view in their effect and strike a 
wholesome balance between the environment and the economy. 
Quoting from the Act itself, 1022(a), which discusses the fact 
that we are looking at the impact on the human environment, the 
human environment is cited several times in the regulations of 
the CEQ and the economy has to be a factor in that overall 
human environment; after all, poverty and loss of community are 
definitely part of the human environment.
    I have several suggestions for improving NEPA, but the 
importance of a stronger role for state and local governments 
is what I would emphasize the most today.
    In a letter that Katie wrote to me last summer, it says 
that ``Regulations implementing the Act at CFR 1508.5 are clear 
that a state or local government may, by agreement, with the 
lead agency, become a cooperating agency.'' Quoting further, 
``Frankly, considering NEPA's mandate and the authority granted 
in Federal regulation to allow state and local cooperation 
through agreement, cooperator status for state and local 
governments should occur routinely.'' In fact, it does not.
    In fact, I would cite two other sections of the CEQ 
regulations that allow for the appointment of joint lead 
agencies with the states as a joint lead agency and also a 
reference in 1506.2(c) that says ``State and local governments 
shall be designated as joint lead agencies in those appropriate 
areas.''
    In fact, that does not occur at all, let alone routinely. 
Clearly, the shortcomings with NEPA are in the application, not 
in the purpose. Agencies have much too much of their focus on 
producing litigation-proof documents and not enough concern 
about involving people in the process.
    I recommend improvement in five key areas. First, involve 
the right people, which means including local and state 
governments from the beginning. Quite often, Federal agency 
officials come to my Wyoming office to update me on actions 
they've already taken or will take. Well, Mr. Chairman, I'm 
tired of being updated. The states are partners in natural 
resource management and rather than being updated, we should be 
included in the planning and the evaluation process to ensure 
that our people are represented in the spirit in which NEPA was 
enacted.
    I remind those here today that the states were not created 
by the Federal Government; rather, the Federal Government was 
created by the states. We have governing responsibilities under 
law that cannot and should not be set aside. Clearly, we have 
shared and concurrent jurisdiction with the Federal agency 
managers.
    As an example, when the U.S. Forest Service and the Bureau 
of Land Management oversee the land management responsibilities 
they have, the states have primacy over wildlife management, 
air quality, water quality, solid waste disposal, and water 
rights management on those very same lands. In other words, we 
have a joint or shared responsibility that requires full 
partnership, not just a close relationship.
    Let me repeat that. We want a full partnership, not a close 
relationship. By analogy, the police officer with a prisoner in 
handcuffs has a close relationship with the prisoner, but I 
would hardly call that a partnership.
    Mutual respect and benefit characterize a partnership. Take 
the handcuffs off, Mr. Chairman.
    The Great Plains Partnership, which represents 14 Great 
Plains states, has a mission statement that, paraphrased, goes 
like this--``We need to help the people on the land feel good 
about stewardship in control of their choices so that they can 
pass something along to their children that's better than what 
they receive.''
    We have to show in plain and simple actions that the 
environment, the economy, and the community are compatible. Our 
citizens are tired of the judicial gridlock and they're feeling 
left out of the process. They are willing and able to 
participate. Local government involvement, particularly early 
in the process, can greatly reduce conflicts in litigation, 
which is an extraordinary cost to our government.
    That first recommendation then focuses on the need to be 
partners with state and local governments.
    My second recommendation is that coordination among and 
within agencies has to be improved. We have duplication of 
environmental analyses, to the detriment of the process and the 
expense of the Federal Government. We could redirect many of 
our financial resources if they were only better utilized.
    The poor coordination among the project proponents, lead 
agencies, and third parties that are hired to conduct the 
analysis does not always occur.
    Third, inconsistencies among and within agencies have to be 
reduced. We have Forest Service management on permit allotments 
in Wyoming, where one forest requires only the grazing 
allotment-holder to do the oversight, the second forest 
requires the officials only in the Forest Service to do the 
monitoring, and the third forest allows the policy to change 
from district to district. Again, the Federal agencies should 
speak with one voice.
    Two more points, Mr. Chairman, and I'll wrap it up. Fourth, 
the training of Federal agency personnel needs to be improved 
and increased. The word is not getting even from the CEQ 
regulations down to the field. Even the CEQ regulations very 
clearly cover the economic and community impact and the 
participation of the states; yet, it's not at all implemented 
at the local level. There has to be a recognition of that 
legitimate role for state and local government.
    Even understanding the difference between EAs and EIS's is 
not even clear down at the local level. There need to be 
consistency and reasonable alternatives, clear, concise 
documents that use plain language and limits on the volume of 
the paperwork.
    In the words of the CEQ regulation, the goal is to be 
analytic, not encyclopedic.
    Fifth and finally, there must be a scientific, substantive 
basis for asking for how to manage so that we avoid the endless 
inquiries and unnecessary data collection. I call your 
attention to the use of adaptive management, which the National 
Academy of Sciences calls the process where management and 
research are combined so that the projects are specifically 
designed to reveal causal relationships between interventions 
and outcomes to maximize learning.
    Regulations should be built upon adaptive management and 
trust. Make a decision based upon the best information at that 
time, don't try to cover every possible contingency. You can 
always ask one more question that starts off with ``what if.'' 
Make the decision, get underway and monitor the performance and 
if there is impact, adapt to correct the problem. Use accurate 
science and modern technology and train the people to be 
objective.
    The culture and the history of the Rocky Mountains reflects 
a strong spirit of independence and innovation. We have a deep-
seated respect for each other and a spirit of cooperation, 
where it's not just a matter of neighborliness that can mean 
survival. We do support each other; we respect the resource; we 
conserve for the next generation to prevent the irreversible 
deterioration that comes from a lack of stewardship.
    It is in this spirit that I present my comments today, with 
the goal of improving the implementation of NEPA.
    Chairman Young. Governor, we're about out of time. I 
apologize.
    Mr. Geringer. Mr. Chairman, I will answer any questions.
    [The prepared statement of the Honorable Jim Geringer may 
be found at end of hearing.]
    Chairman Young. I do thank you for your testimony. This 
Committee will recess until 20 minutes of 12. I want all of you 
back here, if we're going to ask the questions. I do thank you. 
The Committee is now recessed for 10 minutes. Thank you.
    [Recess.]
    Chairman Young. The Committee will come back to order. I do 
thank the panel for bearing with this very ineffective system 
we call Congress, running back and forth, but apparently we are 
now through with our votes for a length of time, so we can go 
through the panel.
    The next testimony, we will hear from Kathleen McGinty, 
Chair of the Council on Environmental Quality, Washington, DC. 
You're up.

     STATEMENT OF HON. KATHLEEN McGINTY, CHAIR, COUNCIL ON 
             ENVIRONMENTAL QUALITY, WASHINGTON, DC

    Ms. McGinty. Thank you, Mr. Chairman and members of the 
Committee. Thank you for the opportunity to visit with you 
today on the National Environmental Policy Act. This Committee 
certainly is to be congratulated; first, in the historic role 
the Committee played in devising and putting into place the 
National Environmental Policy Act and, also, now today, in 
spending time and effort to oversee and ensure the Act's 
faithful implementation.
    Let me state that I believe very strongly that NEPA is a 
seminal statute and I say that not just as an environmental 
statute, but more broadly. For four reasons, I think that that 
is the case.
    First and foremost, NEPA is not just about the environment. 
While it certainly has been a watershed statute in ushering in 
our efforts to protect the environment in this country, NEPA 
actually is about the integration of environmental, economic 
and social considerations into one coherent whole.
    Second and related to that very important piece of what 
NEPA is about is that NEPA is the singular place where we see 
both a directive and, through the Council on Environmental 
Quality, the opportunity for there to be cooperation and 
coordination among the various parts of the Federal family.
    Third, NEPA is that statute that calls for, if you will, 
sobriety in the expenditure of the public's fisc. It asks and 
calls on the agencies to look before they leap, to plan and 
make decisions in a sound and wise way, and, fourth, very 
related to all of the above, NEPA is a seminal statute because 
it is that one place that ensures a democratization of 
decisionmaking. It is that one instrument through which the 
public and state and local governments have a seat at the table 
as decisions are made which affect them in a very real way.
    I think, Mr. Chairman, certainly in the last 5 years, but 
in the 30 years of NEPA's history, we have been able to 
accomplish enormous successes through NEPA. First, we have been 
able to change conflict into cooperation. Mr. Pallone cited the 
example in the New York/New Jersey harbor. Years of battling, 
yielded to a cooperative and collaborative approach that serves 
both the environment and the economic interests in the New 
York/New Jersey region.
    In California, a similar situation with regard to the 
management of water resources, 20 years of feuding, ceding to 
cooperation and collaboration as environmental-economic 
interests brought together for the first time into a 
collaborative process.
    And just last week, a joint initiative we were able to 
undertake with the Governor of California to finally move 
beyond the loggerheads we have seen under the Endangered 
Species Act and reach a partnership agreement with the State of 
California which avoids Federal action to list salmon in 
northern California.
    All of these things enabled by that piece of NEPA that says 
we should move from conflict to cooperation and collaboration 
by bringing all the interests to the table.
    Second, NEPA has been the instrument through which we have 
saved the public a vast amount of money. In South Carolina, $53 
million saved as a bridge was redesigned, money saved and 
wetlands protected that otherwise would have been lost through 
a more expensive approach.
    In Texas, up to $54 million saved as NEPA analysis showed 
that new ports and new docking facilities were not necessary. 
The list can go on and on.
    Third, NEPA has enabled us to engage the public as never 
before in decisions that affect their lives. Governor Geringer 
has been a leader in this regard and I was pleased to work with 
him to ensure that for the first time the State of Wyoming and 
Park County, Wy-

oming will be cooperating agencies in figuring out the best 
management plan for Yellowstone.
    Overall, NEPA has been about telling us that the choice 
between jobs and the environment is a false choice. Either we 
will have both or we will have neither, and NEPA further tells 
us that the only way we will avoid that false polarization we 
have seen is if we integrate environmental, economic and social 
considerations and we achieve that integration by bringing the 
variety of voices and actors to the table for collaborative 
processes.
    Despite these successes, Mr. Chairman, and members of the 
Committee, there have been shortcomings. To echo what the 
Governor has said, those shortcomings are inherent not in the 
statute itself or the regulations that CEQ has issued to 
implement the statute over the years, but in the implementation 
of the statute itself.
    The shortcomings fall into several categories. Paperwork; 
NEPA is supposed to be about good decisions, not grand 
documents. But instead we have seen a proliferation of paper 
rather than a perfection of process which truly vests the 
public with the interests that they deserve in decisions that 
affect their lives.
    Second, minutia; NEPA has gotten involved in the small 
actions that happen every day, but has been lost in the larger 
policymaking, programmatic planning and processes that the 
agencies follow.
    Third, pro forma procedures; rather than giving the public 
an opportunity to feel effectively engaged in decisionmaking, 
the public often feels that the public hearings that are 
provided are pro forma, that we are going through the motions, 
but that, in fact and in reality, the decision has already been 
made.
    Fourth, continued confrontation and lack of collaboration. 
This comes back to a technical part of the statute. The 
agencies are not fully taking advantage of implementing the 
scoping process that NEPA provides. That process is about 
getting all of the interests to the table up front, identifying 
any problem that's going to arise with the project up front, 
and work it out as the project moves itself along in the 
process.
    In light of these shortcomings, Mr. Chairman, as you 
mentioned, it has been my priority to reinvent the processes 
that have evolved in the implementation of NEPA and to secure 
again the original purposes of NEPA.
    We have made progress in that regard. We have issued a 
plain English directive to make these documents understandable 
to the general public. We have begun to enforce page 
limitations on how long the documents can be and we have begun 
to insist that the agencies use common terminology; so that the 
Forest Service is speaking the same language as the BLM, for 
example.
    We had a project plan to move forward and build on these 
initial steps that we're taking. A project that would include 
the adaptive management procedures that the Governor refers to, 
landscaped scale management, moving up to programmatic levels 
of NEPA implementation, and, importantly, further ensuring the 
participation of state and local governments.
    As this Committee is well aware, the Congress did not 
support the reinvention initiative last year, however, and I 
welcome this forum as an opportunity further to reflect on the 
importance of that reinvention effort and hopefully to secure 
with you a path for moving forward with that reinvention effort 
once again.
    Thank you very much, Mr. Chairman and members of the 
Committee.
    [The prepared statement of Kathleen McGinty may be found at 
end of hearing.]
    Chairman Young. Thank you, Ms. McGinty. Ms. Norton, you're 
up next.

   STATEMENT OF HON. GALE NORTON, ATTORNEY GENERAL, STATE OF 
                   COLORADO, DENVER, COLORADO

    Ms. Norton. Mr. Chairman and members of the Committee, I 
appreciate this opportunity to discuss the National 
Environmental Policy Act with you today.
    I think NEPA is a good piece of legislation that has lost 
its way during implementation. With some small changes, 
however, it can accomplish what it was intended to accomplish; 
that is, having the state and Federal Governments work together 
to find and implement the proper balance between protecting the 
environment and achieving other societal goals.
    I will focus today on the federalism issues of NEPA. I am 
familiar with both the Federal and state perspectives on 
environmental and natural resources issues. During my 7 years 
as Colorado's Attorney General, I have been personally involved 
in many environmental and natural resources issues, and I was 
selected by other Attorneys General to chair our Environment 
Committee.
    During the Reagan Administration, I served in the 
Department of Interior as Associate Solicitor for Conservation 
and Wildlife. In addition, I am currently the national chair of 
a new organization, the Coalition of Republican Environmental 
Advocates.
    The National Environmental Policy Act was passed by 
Congress in 1969 and signed into law by President Richard Nixon 
in 1970. The Act reflected a widespread public desire to 
address concerns over the worsening state of the environment.
    Today, environmental impact statements and environmental 
assessments are a routine part of the planning for any project 
undertaken by the Federal Government or that requires Federal 
approval. The EPA Office of Federal Activities recently 
described the statistical picture of NEPA analysis. Of the 
final EIS's submitted in 1996, the longest had 1,638 pages of 
text, while the average was 572 pages, including 204 pages of 
NEPA analysis. Although an average of only 508 environmental 
impact statements were prepared each year between 1990 and 
1995, CEQ estimated that about 50,000 environmental assessments 
were being prepared annually.
    The original goal of NEPA and many other environmental 
statutes was to forge a Federal/state partnership in protecting 
the environment. In NEPA, state and local governments were to 
have an essential part in determining the environmental and 
societal impacts of Federal actions.
    This state/Federal partnership has worked well in some 
instances. For example, the U.S. Department of Transportation 
has allowed our Colorado Department of Transportation to play a 
significant or even primary role in preparation of some EIS's. 
On the other hand, states have often found themselves at odds 
with the Federal Government when the issue involves public 
land, an issue that is critically important to western states.
    This is not what Congress intended when it began the 
environmental decade. To remedy this problem, Senator Thomas 
recently introduced Senate Bill 1176, the State and Local 
Government Participation Act, which would amend NEPA to 
specifically require Federal agencies to cooperate with states 
and counties.
    Innovative environmental policies come about when the 
states can act as laboratories of democracy. Furthermore, the 
states are important in the Federal/state environmental 
partnership because there is no such thing as one-size-fits-all 
government. The states, where government is closer to the 
people, are the proper entities to implement environmental laws 
and policies.
    To return to the original intent of Congress and NEPA and 
so many other environmental statutes, I recommend that Congress 
start the devolution of authority in the environmental area 
back to the states by a small amendment to NEPA. Specifically, 
Congress should require that agencies consult at an early stage 
with state and local governments in developing environmental 
impact statements.
    It should be clear in NEPA that an environmental impact 
statement is not adequate if it does not fully address state 
and local concerns.
    The most significant challenge set out in NEPA is that 
government must strive to find a proper balance between 
environmental protection and other societal needs. We certainly 
need a clean and healthy environment. Americans applaud the 
advancements in clean air and clean water made since NEPA and 
other key environmental statutes went into effect.
    We also need a productive society that fulfills the social 
and economic needs of present and future generations. State, 
local and Federal Governments must attempt to balance all of 
these needs in implementing environmental policies. We must 
ensure that all societal needs and impacts are identified in 
the NEPA information-gathering process.
    If the Forest Service is going to deny an easement for an 
existing water project, we need to understand not only the 
environmental impacts, but also the impacts on the way of life 
of local communities and their economic productivity.
    We must use the information collected and analysis done in 
the NEPA process to identify potential conflicts and initiate a 
process to resolve them. For example, the NEPA process may 
identify a potential conflict between the local community and a 
Federal agency proposing a project. Amendments to NEPA might 
require that some conflict resolution mechanism be initiated at 
that point to resolve the conflict.
    In short, collecting information and analyzing societal 
impacts is desirable, but only if the information is used to 
make well reasoned and balanced decisions about Federal 
actions.
    In conclusion, I would suggest that the policy set out in 
NEPA 30 years ago is a good one--protect the environment while 
balancing that protection with other societal needs and goals. 
Thirty years later, we have sometimes strayed from that policy. 
The best thing we can do for citizens and the environment is to 
return to that original vision.
    Thank you.
    [The prepared statement of Gale Norton may be found at end 
of hearing.]
    Chairman Young. Thank you, Ms. Norton, excellent testimony. 
All good testimony by the witnesses.
    Governor and Ms. Norton, if I heard you correctly, you're 
saying that NEPA, to make it really work, should be primarily 
in the states' authority or in a total partnership with the 
Federal Government. Is that correct?
    Mr. Geringer. Mr. Chairman, yes. In fact, what should 
routinely be occurring is so rare that it doesn't even 
implement the requirements of the Act or the regulations that 
were designed to do that.
    I made reference to joint lead agencies. I don't know if we 
can cite a situation of recent memory where a state--and I 
believe the Act itself calls for those areas of responsibility 
that are statewide--where the state has statewide jurisdiction 
or an agency within the state has statewide jurisdiction. Those 
agencies are to be routinely designated as joint lead agencies, 
not just cooperator status.
    We fight hard just to even get cooperator status and 
usually we are just updated.
    Chairman Young. Ms. Norton, are you saying there should be 
some amendments to the Act itself to make sure this occurs? 
Right now, it's my interpretation that the agencies, and not 
necessarily Ms. McGinty herself personally, have in the past 
cooperated very little and are now cooperating very little. The 
cooperation usually is with the Federal Government. You either 
cooperate with the Federal Government or there is no 
cooperation.
    So there has to be an amendment to the Act. Is that my 
interpretation of your testimony?
    Ms. Norton. The Act itself, as it currently stands, would 
fully allow cooperation between the states and Federal 
Government.
    The Chairman. But it isn't required.
    Ms. Norton. It is not.
    The Chairman. It will allow it, but there is no law that 
says it has to occur.
    Ms. Norton. We would like to see more of a mandate to 
require----
    Chairman Young. I go back to the Governor's comment. 
Remember, this is supposed to be the United States of America, 
not the United States of the Federal agencies. I think that is 
very, very true.
    That's one reason I challenge every witness I have before 
me, anybody, go down the halls or the walks of any street in 
any town of the United States today and ask them what they 
think of their Federal Government, and you will be terribly 
disappointed, and I'm part of it.
    So there's something wrong somewhere along the line. The 
states should be the ones to be lead agencies, and it ends up 
being the Federal Government saying, ``Don't bother us, we're 
God and don't mess with us.''
    Katie, I've got a question to ask you. One of the things 
that concerns me is the reinvention, you talk about 
reinvention, which is Al Gore's campaign word. Top priority, 
but how many people do you have working on reinvention of NEPA 
right now?
    Ms. McGinty. Well, every one of my staff engages in a 
reinvention of the statute in every action they undertake every 
day. Every example that was either cited by myself or 
Congressman Pallone, that is CEQ acting, one, to ensure 
coordination among the agencies; two, to integrate economic and 
social considerations into environmental decisionmaking.
    Chairman Young. With all due respect, Katie, that's not 
reinvention. That's what you should be doing anyway. What are 
we doing to expedite the process? We're going to have a chart 
up here a little later.
    The length of NEPA, the requirement for a permit is 
deplorable. I mean, it takes forever. So what are you doing to 
reinvent this process?
    Ms. McGinty. Mr. Chairman, there is no convincing necessary 
in terms of selling me on how important reinvention is. That's 
why I launched it and I initiated the overall reinvention 
project. As this Committee is aware, however, the Congress did 
not provide resources for the reinvention project last year.
    And I would remind the Committee that CEQ, as we exist 
today, we are less than half the size that we were at the final 
days of the Bush Administration or as we were proposed to be in 
the final days of the Bush Administration.
    Chairman Young. May I ask the question? Why do you have to 
increase in size if the states are the lead agencies?
    Ms. McGinty. Because the job to be undertaken here is 
enormous. To ensure that--as Gale Norton pointed out, there are 
50,000 EAs, approximately, that might be undertaken every year. 
To really try to make sure that overall on a programmatic basis 
that the agencies are acting in a way that fulfills the 
objectives that have been talked about here, giving agencies a 
seat at the table, integrating various considerations, that 
can't be done on a----
    Chairman Young. You and I have a difference of opinion. I 
don't think the agencies ought to be doing what they're doing 
right now. It should be the state that's doing it. The agencies 
shouldn't have the power they have over an individual when it 
comes to filing an environmental impact statement.
    I never understood why the states can't, in fact, do an 
environmental job equally or better than the Federal 
Government. Why should the Federal Government be involved with 
it anyway?
    One question I have last and then my time is running out. 
Are there any limits on how much a Federal agency can extract 
from a private citizen to pay for the cost of doing an 
environmental impact statement?
    Ms. McGinty. The private citizens do contribute to the 
analysis that is done on an EIS or an EA.
    Chairman Young. In Alaska, the Forest Service is holding a 
native corporation hostage and requiring them to pay all costs 
of NEPA to get a right-of-way that's legally theirs across the 
lands, and every time they finish it, they add to the cost for 
requiring further studies.
    Now, where is the limit here?
    Ms. McGinty. Well, one of the things that I would like to 
pursue in the reinvention project is to give a permitee the 
ability to secure an agreement with the agency on what the 
time-frame would be, to negotiate a schedule for how long the 
NEPA process will be. That is one of our top priorities in 
pursuing the NEPA reinvention project.
    Chairman Young. I just think eventually we're going to have 
to write it into law because this is going on too long--there 
have been four EIS statements finalized, just about to the 
point where they can sign off, and they add to it and they're 
paying for it, in what is an attempt by an agency, using the 
EIS statement and, in fact, NEPA, to stop the project itself.
    I think that is very inappropriate and never was the intent 
of the Act.
    My time has run out and we'll have a second round. Mr. 
Vento.
    Mr. Vento. Thanks, Mr. Chairman. I'm sorry I can't stay for 
the hearing, but I think it's an important hearing in terms of 
exploration of the NEPA law and the role of the CEQ and the 
chair person, who, I guess, is alone in fulfilling that role 
these days by virtue of Congress' help.
    I want to place in the record the Western Governors 
Resolution, Mr. Chairman. That hasn't been done yet and I 
assume that you want it in the record.
    Chairman Young. Do you have any objections, Governor?
    Mr. Geringer. None at all.
    Chairman Young. All right. We'll do that.
    [The information to be inserted may be found at end of 
hearing.]
    Mr. Vento. Governor, I think that you point out in your 
statement that the NEPA process has improved Federal 
decisionmaking, in the opening paragraph of that particular 
statement, don't you? This statement says that.
    Mr. Geringer. It depends on which part you interpret.
    Mr. Vento. Well, I'm reading the initial background 
statement, part one, that it's improved decisionmaking.
    Mr. Geringer. And where that has been properly applied, 
that is certainly true, because we have a great improvement 
over what some of our circumstances were in the past on the 
impact on the environment.
    What we're frustrated with now is the endless litigation 
and the process has turned on itself.
    Mr. Vento. I understand what your concerns are. I mean, one 
of the statements I read there is in the background, it is .2, 
it says that it sounds as though you want to consolidate some 
of the decisionmaking power in NEPA and take it away from 
Federal agencies.
    Is that a valid interpretation of this statement?
    Mr. Geringer. It's to allocate what is rightfully the 
responsibility of the states and that's why I made the point 
about concurrent jurisdiction.
    Mr. Vento. Well, of course, I think the issue here is what 
could we do, Chairperson McGinty, this Committee, to, in fact, 
more effectively implement NEPA?
    Ms. McGinty. I think that this hearing is a very good 
start. I would like collaboratively to join with the Congress 
in ensuring the implementation of NEPA. The statute, as 
written, and the regulations, as written, call for the very 
kind of thing the Governor is calling for, as well, and it only 
makes sense.
    We should have coherence and coordination among the Federal 
agencies. We should have state and local governments at the 
table helping us to fashion our decision. We should act in a 
timely fashion.
    These are things that are called for, but, frankly, it's a 
big job to ensure that they are actually being implemented.
    Mr. Vento. Well, it's hard to play catch when someone 
throws the ball straight up the air, isn't it?
    Ms. McGinty. Yes. One thing I would mention, Mr. Vento, the 
issue has been raised several times about whether or not states 
and county governments are being given or afforded the 
opportunity to be joint lead agencies.
    In fact, there are many instances right now where that is 
happening and the one that specifically comes to mind is in 
Yellowstone, where the State of Montana is a joint lead agency 
with us.
    Mr. Vento. What could you--one of your tasks is to try to 
mediate disputes. It seems one of the problems here--I guess 
we're dealing with land issues. As I looked at the list of 
witnesses, it looked like mining, logging, a lot of interesting 
issues. I didn't see recreation witnesses in there, but----
    Chairman Young. They don't have to file a NEPA analysis.
    Mr. Vento. They don't have to file a NEPA. Well, I disagree 
that some recreation impacts would and do and have 
necessitated. But let me get back to the witnesses, Mr. 
Chairman. We can debate amongst ourselves any time.
    But one of your roles is to try to mediate disputes between 
agencies. In a sense, this is a coordination effort here. 
Obviously, you can argue about who should take a lead and who 
shouldn't. I think we also make a lot more heat than light with 
regards to the lack of collaboration, because I find it to be 
generally very close.
    But you have to have someone there willing to catch the 
ball and cooperate on the issues rather than frustrate the 
decision, as happens when we try to locate little things like 
nuclear waste sites and so forth, you know. It isn't always 
positive, guys, you know.
    But what about the coordination and how we can get that? 
We're also resisting a lot of debarkment inertia in terms of 
trying to hold onto their own turf.
    Ms. McGinty. Yes. Right.
    Mr. Vento. So you've got a major job. We talked about 
cutting your staff in half since what it was in 1992. What can 
we do to, in fact, enhance that ability to give you more 
authority or at least some carrots here to incentivize the 
agencies and departments to, in fact, cooperate?
    Ms. McGinty. Well, this sounds like an opportunity not to 
be missed and I would refer the Committee to the President's 
budget request. But in addition to that, I think more often 
than not, Mr. Vento and members of the Committee, it comes down 
to providing that forum where agencies can be brought together.
    It's not about at all questioning anyone's decisionmaking 
authority, but respecting the expertise that's brought to bear 
by the variety of agencies. We have, I think, shown that when 
the Forest Service, for example, now works cooperatively with 
the Fish and Wildlife Service, that their mutual interest can 
be advanced in a much better and effective way.
    Mr. Vento. There is also a learning curve in there, 
learning how to write these statements today. It's much more 
effective than what it was when it was uncertain in that 
litigation that is put in is not always in good faith, is it?
    One of the things--if I call you and ask you and have a 
problem in my district, I have a right to expect you to 
respond, don't I, as the Council for Environmental Quality with 
regards to NEPA?
    Ms. McGinty. Yes, absolutely, and that is, of course, one 
of the missions we are charged with under the National 
Environmental Policy Act.
    Mr. Vento. And you are also charged with coming up with 
proposals and helping prepare the annual report for the 
President that's supposed to be due in July, and with coming up 
with other initiatives.
    So your responsibility in terms of the Council of 
Environmental Quality is very broad besides NEPA. And so to 
have cut this budget this way obviously is a self-fulfilling 
prophecy with regard to the unworkability of NEPA in the last 5 
years.
    Thank you, Mr. Chairman.
    Chairman Young. The gentleman's time has expired. The 
gentleman from Utah.
    Mr. Hansen. Thank you, Mr. Chairman. Mr. Chairman, I think 
the Governor was right. When he's speaking to the Federal 
Government, the Federal Government should be consistent and 
speak with one voice. Ms. Norton says state governments should 
work together with the Federal Government.
    I don't mean to beat up on an old horse here, but Ms. 
McGinty is fully aware that I subpoenaed many documents from 
the Administration with regard to the creation of the Grand 
Staircase-Escalante. One of those documents was from the 
ANDALEX coal mining proposal of the Kaiparowits Plateau.
    It is significant to note that the EIS was about to find 
that there was no significance impact. The document shows that 
people in higher positions didn't want that to happen. Another 
document I subpoenaed went like this. It was a dialog between 
Mr. John Leshy, the--you know who he is, and some other folks 
in Interior, and the document notes that NEPA compliance is 
still necessary when an agency proposes a creation of a 
national monument.
    The gist of the whole idea is this; if an agency proposes 
the idea, you have to do NEPA. If the President proposes the 
idea, you don't have to comply with NEPA. Then CEQ spent the 
next 7 months trying to get the President to sign a letter, so 
that it could be his idea, and the interesting thing is, it's 
great reading if you're bored some night and you want to keep 
awake, is the letters between CEQ and the President of the 
United States, getting him to sign this letter so they could go 
down and do this.
    Then why did they do it? Other documents we got are very, 
very clear. They did it just for political purposes. The 
environmental community would wildly accept that.
    Now, I don't have any fault with what you do. This is 
hindsight. Maybe we can eat this one and live with it and kill 
the economy of southern Utah, but what the heck, we got some 
political mileage out of it, so why do we care.
    Mr. Chairman, I would like unanimous consent to put in the 
record a work by our Committee, your people, Behind Closed 
Doors-The Abuse in Trust and Desecration of the Establishment 
of the Grand Staircase-Escalante National Monument.
    Chairman Young. Without objection, so ordered.
    [The information will be included in the Committee files at 
1324 Longworth House Office Bldg, Washington, DC.]
    Mr. Hansen. I'd like to add, now that that's behind us, I 
feel better. Thank you, Ms. McGinty, for allowing me to say 
that.
    Would you look at that thing right there in front of you?
    Ms. McGinty. I think I have it.
    Mr. Hansen. You've got a copy of that.
    Ms. McGinty. I've got a copy of it, yes.
    Mr. Hansen. Well, I notice you folks are going to waive 
NEPA on a blow-down that happens to be going on in Texas at 
this particular point. What you see in front of you is the 
Dixie National Forest. The Dixie National Forest is one of 
those beautiful forests that wasn't a forest until we started 
managing it in southern Utah over 150 years ago.
    Now, they have a little infestation of pine beetle in that 
area and the supervisor of the forest, a Mr. Hugh Thompson, he 
said, ``I can go in there and cut those 30 acres out and it 
will be gone and the strong force can replant those 30 acres.''
    Now, as you look at the picture, you will see, in different 
areas, it's a dead forest now. And as an old pilot, I like 
flying over that area and I see these dead, dead trees staring 
me in the face.
    Why is that? Because the environmental community has taken 
it upon themselves to file a lawsuit against the Forest Service 
every time, so we can't take care of it. So we've got a dead 
forest now and I'm wondering why we do that. But because we do 
have a dead forest, it would seem applicable to me and very 
important and a great analogy if you're going to waive the 
blow-down in Texas, that you further look at that picture on 
the far side where you've got dead trees, and grant a waiver 
for the Dixie.
    I could bring to this Committee, and in front of you, 
dozens of experts who will say one thing--the possibility of 
having a fire in the Dixie is 100 percent. The possibility of a 
flood behind that is 100 percent. And all that topsoil that's 
taken 150 years is now a big mucky mess down in the valleys of 
Utah and southern Utah.
    I would hope you would give that some consideration in 
waiving NEPA here. We have an emergency on our hands. We've got 
a big problem. I would implore you to give it some thought.
    After what I said to you earlier, I don't know if you will, 
but anyway, I thought I would--do you want to respond to that?
    Ms. McGinty. If I might. Thank you, Mr. Congressman.
    Mr. Hansen. I would appreciate it.
    Ms. McGinty. Yes. And to harken back to Congresswoman 
Chenoweth's comments earlier. I want to make one clarification. 
In Texas, as here, if the issue were brought to us, we would 
not be waiving NEPA. NEPA has emergency provisions in it. In 
all cases, we are executing NEPA.
    The difference between the situation in Texas that the 
Congresswoman points out and your situation is only that the 
Forest Service came to us with a request there and we acted on 
it immediately and granted it. We have not received a request 
from the Forest Service with regard to the Dixie.
    And I agree with you, I have been to the Dixie, it is 
beautiful.
    Chairman Young. Would the gentleman yield?
    Mr. Hansen. I yield to the Chairman.
    Chairman Young. Are you trying to tell me that if the 
Regional Supervisor now decides not to do this, you have no say 
in it?
    Ms. McGinty. There is--what I am saying is that under NEPA 
itself, there are provisions for emergency procedures and 
should that forest need to execute emergency procedures, there 
is full provision for that to be provided within the bounds of 
the statute itself.
    I would just offer one other example, which is Idaho. Last 
year, we did follow emergency procedures in Boise at the 
request of Congressman Crapo and Senator Kempthorne, when there 
was a dangerous fire situation, a flooding situation there.
    Mr. Hansen. Excuse me. Let me say, the Forest Supervisor in 
this particular forest has asked for emergency things here. 
Apparently, his higher-ups, his betters have not seen it upon 
themselves to do it. They have told me they've done it because 
of environmental reasons.
    That's not fair, in my mind. I mean, I didn't think those 
guys handled the forest. I thought scientists did it and 
managers did it.
    Ms. McGinty. It is, as I say, Congressman, the first I've 
heard of it and if the Forest Service wants to come forward and 
talk to us about it, we would talk to them immediately about 
it.
    Mr. Hansen. So if I subpoenaed the Forest Supervisor back 
here and put him under oath and he says it, is that what I've 
got to have to get it in front of you?
    Ms. McGinty. Under normal circumstances, what he would do 
to invoke these emergency procedures is he would put together a 
process that he would consider the appropriate emergency 
process. And as we've done in Idaho, as we did last week in 
Texas, that process would then fulfill the requirements of 
NEPA.
    Mr. Hansen. Well, the problem is the person on the ground 
does it, but for somebody up above, living in the beltway of 
Washington, doesn't see the necessity of it, and, therefore, 
we're stuck.
    Ms. McGinty. And as I'm saying, this is the first I've 
heard of the situation. I would be happy to talk to the various 
parties, Washington and the Forest Supervisor on the ground to 
see if we couldn't facilitate some discussion there.
    Mr. Hansen. I appreciate that. I'll have him talk to you. 
Thank you so much.
    Ms. McGinty. Thank you very much.
    Mr. Hansen. Thank you for your time, Mr. Chairman.
    Chairman Young. Mr. Hinchey.
    Mr. Hinchey. Thank you very much, Mr. Chairman, and thank 
you, ladies and gentlemen, for your very fine testimony. I 
enjoyed listening to it very much.
    Madam Chairwoman McGinty, NEPA, I think, as you have 
indicated in your testimony, has been an extraordinarily 
valuable piece of legislation and that has served the country 
extremely well over the course of the last 30 years.
    In addition to a great many other things, it has simply 
prevented us from making some very serious mistakes, in that it 
provides the opportunity for close and careful analysis to 
projects and programs before they get started.
    Part of that process is the public participation. It seems 
to me that there have been a number of examples where public 
participation has just been extremely valuable and that 
particular part of the process is so essential.
    Can you comment on that, from your experience, how public 
participation and how information from the public has been 
valuable in making things work better and preventing mistakes 
from being made?
    Ms. McGinty. Yes, absolutely. One example that just comes 
to mind is in South Carolina, where a classic train wreck 
situation, they need to put a new bridge in, but it would seem 
to be unavoidable destruction of some very pristine wetlands 
resources.
    No one could figure out how to resolve what seemed to be an 
irreconcilable conflict, until the public came along and said 
we live in this community; we have an idea as to how you could 
relocate that bridge, redesign it, still provide the essential 
transportation that we want, too. We live here, we want the 
transportation services, but also in the context of doing that, 
save and preserve those wetlands.
    The upshot was public happy, wetlands preserved, and $54 
million saved, because the new bridge was actually more cost-
effective than the old design would have been.
    Mr. Hinchey. I think that kind of example is indicative of 
the reasons why, when you speak to people about this program, 
and the state initiatives that have been sired by NEPA, the 
State Environmental Quality Review Act, for example, I know, 
I'm very familiar with that in New York and the way it works.
    The public overwhelmingly supports these pieces of 
legislation for the very valuable contribution they have made 
and the enormous amount of money that they have saved, both 
nationally and for state governments, in the last 28 years or 
so.
    Ms. McGinty. Very true. I offered an example in my 
testimony of Admiral Watkins testifying about this. He says 
thank God for NEPA because through that process, a tremendous 
amount of money was saved in identifying a much more sound 
technology.
    Mr. Hinchey. In your testimony you have identified the need 
for additional funding for the reinventing initiative. Can you 
tell us how much you requested in the budget and give us some 
idea of what that money would be used for?
    Ms. McGinty. Yes, sir. It's on the order of a half-a-
million dollars, a roundinger, I must say, with regard to most 
agencies. But it's very important to us because it would be 
funds dedicated to the reinvention project itself, funds 
dedicated to have people outside of the fire fight of the 
issue-by-issue crisis, looking programatically across the 
agencies to see how we can change the implementation of the Act 
so it works better for everyone and for all of the purposes we 
have been talking about here today.
    Mr. Hinchey. I thank you very much and I thank you for the 
contribution that you make as the chair of the Governors 
Council on Environmental Quality. That office has been 
extremely valuable and I can't think of a better person that's 
served in that position than the contribution that you have 
made in the time that you have been working through this 
Administration on protecting the environment of our country and 
saving substantial amounts of taxpayer dollars in the process.
    Ms. McGinty. Thank you, Congressman. I very much appreciate 
it. Appreciate your leadership, as well.
    Mr. Hinchey. Governor Geringer, you were the sponsor, as I 
understand it, of the Western Governors Association in the 1996 
resolution on NEPA. I would like, Mr. Chairman, unanimous 
consent to have that resolution included in the record, if it 
has not been so already.
    Chairman Young. It's already been included.
    Mr. Hinchey. Already been included. Well, thank you. The 
Western Governors resolution states that, among other things, 
as follows; ``The broad goals and objectives of the National 
Environmental Policy Act are important and have improved the 
overall quality of decisions by Federal agencies.''
    Do you, Governor, feel that NEPA has improved Federal 
decisionmaking processes and the outcomes of those decisions?
    Mr. Geringer. Mr. Chairman, the answer is yes and that's 
why the qualifiers were in my remarks and I'm not sure if you 
caught all of them, where the process has bogged down and has 
become more of a judicial process than a participatory process.
    Mr. Hinchey. But you feel that the process itself is very 
valuable.
    Mr. Geringer. The process can be very valuable, but we're 
about to have an impasse on how it might even be implemented. 
The benefit that can be derived from NEPA is at risk.
    Mr. Hinchey. But hasn't the process provided avenues of 
contribution for state and local governments, for Governors and 
for the public that didn't exist before? Hasn't that opened up 
the process and made valuable contributions in and of itself?
    Mr. Geringer. Well, you know, I come from a farming 
background and there's an old saying that if it ain't broke, 
don't fix it, and that may be where your line of reasoning is 
going. But there is also a concept that says if you see 
something that can be prevented, you try to head it off, and 
that's what we're here to do today, is to try to prevent the 
breakage of NEPA.
    Mr. Hinchey. I'm of the opinion that anything, no matter 
how good it seems, can always be improved. I'm not of the 
school of if it ain't broke, don't fix it experience, frankly. 
I think that anything can be made better and I have no doubt 
that this could be made better.
    But my point is that it has provided invaluable service to 
us over the course of the last 28-29 years. Saved an enormous 
amount of money, prevented an awful lot of mistakes from being 
made, and I think your statement in 1996 just makes that as 
clear as could be.
    Chairman Young. The gentleman's time has expired. Governor, 
you can comment, though.
    Mr. Hinchey. Thank you, Mr. Chairman.
    Chairman Young. You can answer that.
    Mr. Geringer. I guess the response I would have is that if 
you see something that's headed for detriment or disaster, you 
try to head that off, and that was part of the reason for even 
raising that resolution, was to say we have the goals in mind, 
we understand the purpose, we'd like to see the benefit that 
has accrued in the past, where it has accrued, now let's see if 
we can't improve that and make it a general positive overall 
rather than seeing it die in the muck.
    Mr. Hinchey. Well, I agree with you.
    Chairman Young. The gentleman's time has expired.
    Mr. Hinchey. It can be improved, but I just don't want it 
to ignore all the contributions that have been made in the 
past.
    Chairman Young. The gentleman's time has expired. I have 
got to go to another--I have a bunch of students down there, I 
have to speak to them for a moment. Ms. Norton, I'm going to 
suggest to you, as Attorney General, if you can give me some 
ideas of how to improve this Act by writing some legislation, I 
would deeply appreciate it.
    And, Ms. McGinty, I officially am going to ask you about 
the Chugach National Forest. We're facing a terrible fire 
problem, worse than anything you've ever seen, and we're having 
to face a fire NEPA requirement. Otherwise, they're going to 
wait until it burns and then it's going to be heard. We might 
lose two communities. It's a classic example of the stupidity 
of this Act and how it's not properly implemented.
    Lastly, my Forest Service down in Arizona is suddenly 
requiring a rod and gun club to fire off a NEPA environmental 
impact statement 35 years after this rod and gun club began 
operating. Yet I have pictures here, and I'm going to submit 
them to you, of the Forest Service dump right next to the rod 
and gun club for which they never filed a NEPA requirement, and 
you'll want to look at some of these examples of your agencies. 
I have requested documentation from them. They have not given 
it to me yet. They are going to get subpoenaed, if they don't.
    But this is an example of why there's such a real bad 
feeling about the agency. They require a rod and gun club, who 
never had an accident, to file an environmental impact 
statement and then they turn around and they have their own 
dump, and they never had an environmental impact statement on 
that adjacent Federal land.
    So there are some real questions about how it's being 
implemented.
    Mrs. Cubin is going to chair the meeting for a period of 
time.
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    Ms. Cubin. [presiding] Thank you, Mr. Chairman. The next 
person in line for questioning I believe is Representative 
Pombo.
    Mr. Pombo. Ms. Norton, in your statement, you talked about 
a voluntary self-audit statute that was developed in Colorado. 
I would like to hear a little bit more about that and what your 
experience has been with that particular statute that was 
adopted in Colorado.
    Ms. Norton. Thank you, Representative. While this is not 
directly on point with NEPA, it certainly has a lot to do with 
Federal/state relations in the environmental area. Colorado 
adopted a law that would make a self-audit privilege and some 
degree of immunity available to companies that want to see if 
they have any environmental problems.
    It's essentially an incentive for companies to do voluntary 
self-audits and then to correct any environmental problems that 
they might find.
    The State of Colorado felt, and this was on a bipartisan 
basis, felt that it would be more likely that companies would 
come forward, find problems and correct them if we rewarded 
them for that instead of bashing them for doing it.
    The EPA has been fighting with us. They are looking at 
disapproving some of our programs because they think we need to 
punish companies that come forward with self-audits rather than 
providing them certainty about how they will be treated when 
they come into the regulatory process.
    I testified yesterday in front of the Commerce Committee's 
subcommittee on that and I would be happy to provide you with a 
copy of my testimony.
    Mr. Pombo. Yes. I would like that and I would like to 
explore somewhat what kind of a relationship that creates 
between the state agencies and the Federal agencies when you 
have that kind of a confrontational relationship that is being 
developed.
    Ms. Norton. We had, unfortunately, a very confrontational 
relationship. They sent--the EPA sent us a 23-page single-
spaced list of essentially interrogatories about how our state 
statute would operate, and that's on a two-and-a-half page 
statute.
    They have not allowed us to interpret our own law and have 
even questioned the way in which we interpret our own law. 
We're going into a negotiation process with them next week and 
we are hopeful that we will be able to maintain the spirit of 
Colorado State law.
    We find it very disturbing that Federal agencies have not 
allowed us to determine whether our hypothesis is correct. Our 
hypothesis is that this will be beneficial for the environment. 
We can only find out if the Federal agencies will allow us to 
carry forward with our experiment.
    Mr. Pombo. Now, Governor, in your statement, in your 
prepared statement, you talk about the relationship between the 
Federal Government and the states and you state in here that 
the Federal Government was created by the states, not the 
states by the Federal Government, and that you believe that the 
states should have primacy over environmental laws and over the 
laws in your particular state.
    How has your relationship been in operating the state, in 
working with these different Federal agencies? Has it been 
cooperative? Have they always been willing to listen to your 
ideas and accept the solutions that have come up with people 
that live in your state?
    Mr. Geringer. As with many western states, the states feel 
more like they are the last to be sought out rather than the 
first, and that's why we brought these issues to the forefront. 
As the Act and the CEQ regulations point out, where there is a 
responsibility, and I mentioned several of those areas where 
the states, within their states, have primacy, the Clean Air 
Act, the Clean Water Act as examples, where the states have 
primacy, they are not consulted the environmental impact might 
be or to even do the environmental assessment that leads to the 
EIS.
    It is that frustration that leads to delays, it leads to 
litigation, it leads to the costly expenditure of funds. If we 
were to just simply reallocate some of those inefficient 
expenditures, you could triple the size of the CEQ under the 
same budget.
    Mr. Pombo. Have there been instances where your state has 
been named the lead agency and the Federal Government accepted 
the findings that you have come up with?
    Mr. Geringer. None in recent memory.
    Mr. Pombo. None in recent memory? If this law was working 
the way that it was supposed to, would there not be instances 
that you could bring out?
    Mr. Geringer. That would certainly be our goal, 
Representative, and as I look at the CEQ regulations that deal 
with exactly that point, it says that the agencies of the 
states should be consulted to eliminate duplication of other 
procedures.
    It talks about joint planning processes, joint 
environmental research and studies, joint public hearings, 
joint environmental assessments, and it says unless those state 
agencies are specifically barred by some other law, they shall 
be consulted.
    That's pretty directive.
    Mr. Pombo. And have your consultations been in the manner 
in which is suggested in the law?
    Mr. Geringer. No.
    Mr. Pombo. Do they normally come by and meet with you 
before a decision is made?
    Mr. Geringer. Typically after. We should look at the 
planning process and at the scoping process, which can be very 
helpful in guiding toward an outcome and a more efficient way 
time-wise, as well as study-wise. Perhaps as an indication of 
that, one of the land management agencies in the west developed 
its strategic plan and after they had gone through the whole 
process of strategy, listing objectives, goals, strategies to 
get there, then they dropped it off.
    So even in the entire realm of resource management, not 
just the EAs or EIS's, the attitude seems to be we have to 
comply with our regulations first and then we'll go to the 
states.
    As we discussed an overall reinvention, to use that word, 
with a group of people that Katie McGinty made reference to, 
the Institute for Environment and Natural Resources at the 
University of Wyoming, another Federal agency said, you know 
what this really means is that we're going to have to rewrite 
all of our regulations.
    And I kind of said, ``Well, duh.''
    Mr. Pombo. Thank you.
    Mrs. Cubin. I think that it's actually my turn to ask 
questions, even though I'm sort of not in line over there.
    Governor, you just read an excerpt that said that the--to 
paraphrase--that the different governmental entities shall be 
consulted. Now, I think what we ran into with Cave Gulch in the 
Natrona County area was that the Federal agencies said, well, 
we consulted them in the scoping process and their input in the 
EIS, but did not grant them cooperating agency status.
    And to me, that--I mean, I don't know. So Senator Thomas 
has a bill that he introduced in September 1997 that includes--
there's just three words. It says that Federal, state and local 
entities should be considered as cooperating status agencies.
    Would you agree with that legislation? Would you support 
it?
    Mr. Geringer. I do. In fact, Madam Chairman, I think it's 
the simplest bill I've ever seen.
    Mrs. Cubin. Isn't it nice?
    Mr. Geringer. It's about a three-word change to an entire 
document, and the change perhaps suffers from the disadvantage 
of being logical.
    Ms. Cubin. As we recall, it's usually those 500 pages that 
pass just like that and these little ones are a little bit 
tougher.
    Ms. McGinty, do you support that legislation?
    Ms. McGinty. Let me say I am very supportive of----
    Ms. Cubin. No, no, no, no, no. No. The legislation.
    Ms. McGinty. The legislation? No, I don't support the 
legislation.
    Ms. Cubin. And why is that? Because that seems to 
contradict the testimony that you've given here today.
    Ms. McGinty. Well, first, I think as this Congress has said 
repeatedly, we don't necessarily need new laws and more laws 
and more regulation. The provision that you referred to----
    Ms. Cubin. Your testimony has been that amply provided for 
and it's a question of whether the agencies are implementing 
that. I think the Governor can testify that every time an issue 
like this has been raised, to me, we have worked to effectuate 
that provision of the regulations which gives the states and 
the counties a seat at the table.
    Ms. McGinty, honestly, I can tell you firsthand that you 
may have worked toward that, but the length of time that it 
takes turns out to be quite costly for the private entities 
that are waiting--and then when the final result comes out, 
many, many times what the states, counties and local 
governments have considered to be pertinent has been 
disregarded, particularly when we talk about socioeconomic 
impacts.
    But we are going to have a second round of questioning. To 
me, it seems extremely contradictory that you can sit here and 
tell us how you want all this input, you want this, but then 
when it comes down to the nitty-gritty, it isn't there. It 
sounds a little disingenuous.
    But I'll get back to that line of questioning on the second 
round, because at this time I would like to ask the Governor 
some more questions.
    Do you think or are you aware of circumstances where the 
roadless area moratorium prevents any activities that are 
needed and that by not doing, will have an adverse impact on 
the environment?
    Mr. Geringer. Madam Chair, the roadless moratorium through 
the U.S. Forest Service has a more far reaching effect than 
what has been publicized. I think the first group that we heard 
from, or heard about, was the timber industry. We've seen 
already limitations on our state agencies that oversee wildlife 
management, resource management, such as stream gauging for 
water, the opportunity for recreation and hunting.
    The impact on the full range of activities on the lands and 
management as far as the environment goes is more significantly 
impacted than just the timbering industry, although that's been 
the only focus.
    So the decision of the chief of the Forest Service to 
impose a moratorium probably is subject to his own NEPA 
requirements. I don't think he thought beyond just the impact 
of building roads for timbering. What we see through the 
roadless moratorium are effects that more significantly impact 
other areas than just timbering.
    Ms. Cubin. How does NEPA or does NEPA, in your opinion, 
address the socioeconomic impacts on local communities and does 
this moratorium have an effect on local communities and, if so, 
what is that effect?
    Mr. Geringer. Well, the moratorium has, with other 
examples, the general trend among the Federal agencies is to 
say that social and economic impacts are not a part of the 
environment, and that's why I made the reference, Madam Chair, 
in my remarks to the fact that when it comes down to it, 
poverty and loss of community are definitely part of the human 
environment, which were mentioned consistently in the Act and 
in the regulations.
    Impact on inter-generational sustainability, all those are 
issues that involve an interrelationship. Even the CEQ 
regulations acknowledge that there is an interrelationship 
between environmental and economic issues.
    I certainly heartily endorse what Chairwoman McGinty has 
said, that that relationship between economic, environmental, 
and social issues has to be recognized.
    Ms. Cubin. Do you think it has been in the past?
    Mr. Geringer. I think it's been--because the pendulum tends 
to swing one way or the other. At first, there was a tremendous 
swing toward just environmental protection.
    Ms. Cubin. And what time-frame would that have been in?
    Mr. Geringer. That was back in the late 1960's, early 
1970's. And now, with the advantages that have been gained 
through that, that's been overshadowed by a swing that needs to 
return back to more of a neutral position, where there is a 
balance between limitations on economic activity.
    It's as though humans are not a part of the environment and 
I think we ought to recognize that they are.
    Ms. Cubin. One last question, very quickly. Are grazing 
permits in your state, in our state, being renewed or delayed 
by NEPA and what effect is that having on the economy for the 
entire state?
    Mr. Geringer. As with anything, if there is a delay in the 
permit processing or application, you miss the timing of an 
event.
    Ms. Cubin. So there are delays?
    Mr. Geringer. There is definitely an impact on how that 
applies.
    Ms. Cubin. Thank you very much. Congressman Chenoweth.
    Ms. Chenoweth. Thank you, Madam Chairman. Ms. McGinty, last 
time you were before the Committee, we discussed the American 
Heritage Rivers Initiative. That was September 24th of last 
year. You testified that the initiative's authority lies in 
Section 101(b)(4) of NEPA.
    I have a copy of NEPA and I have studied that pretty 
carefully. I asked for a legal analysis as to why you believe 
that that section, which simply lays out the policies and the 
goals of the Act, why that would have any actual authority in 
it.
    As I read it and as other attorneys have read it, it has 
none whatsoever. I have not received that legal analysis yet 
and so I would very much appreciate receiving that.
    Ms. McGinty. Thank you, Congresswoman. And in addition to 
other venues where we have discussed this, that analysis, of 
course, is fully laid out in our responsive brief to your brief 
in the lawsuit you filed against us and that the court has 
dismissed.
    Ms. Chenoweth. That is being appealed. But I asked for a 
legal analysis to be sent to the Committee.
    Ms. McGinty. Sure. Happy to do that again.
    Ms. Chenoweth. So if you would do that. You also indicated 
in your testimony here that there was some language involving 
emergencies and exemptions in NEPA.
    Ms. McGinty. Yes.
    Ms. Chenoweth. That would allow forest supervisors to be 
able to exempt certain environmental processes under NEPA.
    Ms. McGinty. Design wholly new processes that fit the 
emergency situation at hand, yes.
    Ms. Chenoweth. Where is that located in NEPA?
    Ms. McGinty. It is in the regulations and I would have to 
respond for the record in terms of the exact provision in the 
regulations. But any natural resource manager can approach CEQ 
and say I have an emergency situation on my hands, I propose 
these emergency procedures.
    Ms. Chenoweth. So it's not in the law? It is? OK. It's in 
the Code of Federal Regulations.
    Ms. McGinty. The Code of Federal Regulations, yes.
    Ms. Chenoweth. All right. And it's also in the National 
Forest Management Act, too.
    I wanted to ask you several questions and they'll go pretty 
quickly. Included in your funding request before Congress are 
funds needed to support the American Heritage Rivers 
Initiative, isn't that correct?
    Ms. McGinty. Well, we do not have a specific line item on 
that initiative. It is part of our overall effort to reinvent 
the way that environmental programs are implemented.
    Ms. Chenoweth. Did you know that Section 624 of the 
Treasury Postal Act states that no part of any funds 
appropriated in this or any other Act shall be used by an 
agency of the executive branch, other than for normal and 
recognized Executive-Legislative rela-

tionship, for publicity or for propaganda purposes, for the 
preparation, distribution or use of any kit, pamphlet, booklet, 
publication, radio, television or film presentation designed to 
support or defeat legislation pending before the Congress, 
except in presentation to the Congress itself.
    So there are statutes that tend to limit your activities in 
this area, is that not correct?
    Ms. McGinty. Yes. Congresswoman, I am aware of that 
statutory provision.
    Ms. Chenoweth. Let's look at the compliance with Section 
624 of the Treasury Appropriations. We'll focus first on the 
publication and distribution of literature, even though that is 
only part of the prescription of the statutes.
    You have distributed editorials, articles and feature 
pieces in key media outlets and publications that use and 
reflect the tone of key messages in this plan. Would you call 
that a publication or distribution of literature?
    Ms. McGinty. Well, I will absolutely say that we have 
engaged in extensive communication and outreach to the public 
on the American Heritage Rivers Initiative, as on any 
initiative that we have been involved.
    Ms. Chenoweth. And you've flown--you personally have flown 
around the country, as well as have your staff, to push the 
American Heritage Rivers Initiative, to give speeches and to 
promote the public support. Is that not correct?
    Ms. McGinty. I would be hard pressed to think of an 
invitation from citizens around the country that we have 
denied, when they have asked us to come and visit with them 
about this program. I can't think of one request for 
information or our personal presence that we have said no to.
    Ms. Chenoweth. So your answer----
    Ms. McGinty. We have been there when asked.
    Ms. Chenoweth. So your answer is yes, right?
    Ms. McGinty. We have responded to the invitation of Members 
of Congress or individual citizens who have asked us to come 
and answer their questions.
    Ms. Chenoweth. The American Heritage Rivers Initiative 
program will be costing between five and ten million dollars, 
is that not correct?
    Ms. McGinty. The American Heritage Rivers program will seek 
the better coordination and distribution of the programs and 
resources that are already provided for in a variety of 
different statutes.
    Ms. Chenoweth. And that amounts to about five to ten 
million dollars. Is that not correct?
    Ms. McGinty. Congresswoman, I would have to respond for the 
record because there could be many programs that are better 
coordinated through this initiative, whether it is--an example 
I shared with the Committee before, making available to 
communities Defense Department software which enables----
    Ms. Chenoweth. That's not quite the question I asked.
    Ms. McGinty. Well, I use it only as an illustrative example 
of why it's hard for me to put a specific price tag on it.
    Ms. Chenoweth. Well, let me make it easier for you, Ms. 
McGinty. The American Heritage Rivers Initiative has a new web 
site, is that not correct? And it contains materials, such as 
speech materials and so forth, but it does have a web site.
    Ms. McGinty. Since its very inception, again, as a matter 
of being able to have the public have as much information as 
they need, from its very inception, we have had a web site.
    Ms. Chenoweth. Is that the publication or distribution of 
literature?
    Ms. McGinty. From a legalistic point of view, I would have 
to again respond for the record, but certainly the whole point 
of it is to provide information to the public.
    Ms. Chenoweth. Let me wind this up. Even using the 
narrowest construction of the narrowest section of Section 624, 
the prohibition, which was signed into law by the President and 
it is now the law of the land, right? And since it's the law of 
the land, you are bound by its provisions, right?
    Ms. McGinty. Absolutely.
    Ms. Chenoweth. Do you believe that one of your 
responsibilities is to obey the law?
    Ms. McGinty. Absolutely.
    Ms. Chenoweth. Even by the very narrowest construction of 
Section 624, that prohibition which reaches any activity of the 
publication or distribution of literature, we have just 
identified a number of violations of that statute alone.
    Can you really say that you're complying with Section 624? 
You did say for the record you were familiar with it.
    Ms. McGinty. Absolutely and without doubt.
    Ms. Chenoweth. You are complying with it.
    Ms. McGinty. Absolutely and without any hesitation or doubt 
whatsoever.
    Ms. Chenoweth. I do want to say I will let your answer 
stand, but I do want to say that, for the record, the case was 
dismissed in the American Heritage Rivers Initiative. It will 
be appealed. It was dismissed simply on standing and not on the 
merits of the case. We will be perfecting the standing issue 
and we will be back.
    Thank you.
    Ms. Cubin. Thank you, Ms. Chenoweth. Mr. Hill.
    Mr. Hill. Thank you, Madam Chairman. Katie, I wanted to 
stay on this issue of American Heritage Rivers, just for 
clarification. When you appeared here earlier, you made a clear 
statement that if a Member of Congress wanted to withdraw 
applications from within their district, they would have veto 
power over any application. Do you agree with that earlier 
statement?
    Ms. McGinty. Yes, absolutely.
    Mr. Hill. And that is still the position of the 
Administration.
    Ms. McGinty. A Member of Congress has veto authority over a 
river that runs through his or her district, absolutely.
    Mr. Hill. I wrote to you in December and again in January 
asking that Montana be withdrawn. I just yesterday received a 
letter from you confirming that the Yellowstone River will now 
be included. There are other applications pending in Montana. 
Can I expect that those will receive confirmation that those 
with also be withdrawn?
    Ms. McGinty. Congressman, if you are requesting that every 
river in your district be withdrawn from the program, as I have 
said before, that is your right to do that and it would be 
withdrawn.
    Mr. Hill. Well, let me read to you what I wrote to you, 
just so we're clear about this.
    Ms. McGinty. Yes.
    Mr. Hill. So that we don't have to exchange more 
correspondence. In December, I wrote to you and I concluded the 
letter saying that I respectfully make the request that the 
Yellowstone and its tributaries and other rivers in Montana not 
be considered as part of the American Heritage Rivers 
Initiative. I believe this request should be honored in light 
of the above statements.
    Your office said you weren't clear and would you write 
again. And so I wrote again January 21st and I opened the 
letter with this. I am once again writing to inform you of my 
request to not include any of Montana's rivers as part of the 
American Heritage Rivers Initiative. Despite my long-standing 
statements of concern and a previous letter requesting Montana 
not be considered part of the initiative, I am mystified over 
your staff's insistence on the need of another letter and 
communication on this issue.
    Do you think that that's clear, in your mind, that I wanted 
all of Montana rivers withdrawn?
    Ms. McGinty. I think I understand fully the question you're 
posing, yes.
    Mr. Hill. So can I then be assured that Montana rivers will 
not be considered?
    Ms. McGinty. I hesitate to ask this question, but, 
Congressman, as I understand it, you are the only Congressman 
from Montana.
    Mr. Hill. I represent all of Montana. And, incidentally, 
Senator Burns also asked to be out of the program.
    Ms. McGinty. The answer is yes.
    Mr. Hill. So that's clear, because these are still on the 
web site as being under consideration, the other applications. 
Will they be noted and removed?
    Ms. McGinty. It is clear that you have now and with your 
letters previously withdrawn rivers in Montana from 
consideration. Yes, sir.
    Mr. Hill. Thank you. And as you know, the Committee has had 
a great interest in this issue. On February 10, you were sent a 
letter from Representative Bob Schaefer and 60 other members, 
including 15 from this Committee, requesting that the Blue 
Ribbon panel of experts on the American Heritage Rivers, which 
is to be named, I guess, will hold a day of hearings in 
Washington at its regularly scheduled meeting.
    What decision have you made to accommodate that request for 
public hearing in D.C. by this panel of experts?
    Ms. McGinty. Let me say, Congressman, that the whole thrust 
and, I think, related to Congressman Chenoweth's questions, the 
whole thrust of this initiative has been public participation 
and outreach. You will see no difference as we--in fact, the 
FACA itself is about having the public involved in making the 
decision. It will be an open process. There will be opportunity 
for the public to be involved.
    I would like, however, to have those FACA members appointed 
so that they can also be responsive to you with regard to the 
details.
    Mr. Hill. Thank you. Going over to the NEPA process itself, 
is it your view that NEPA requires that the social and economic 
impacts--aspects, I would put it--should be integrated into the 
alternatives that are proposed?
    Ms. McGinty. Absolutely. NEPA is triggered when there is a 
significance--when a significance action of the Federal 
Government will have major impact on the environment. But once 
triggered, it calls for environmental, social and economic 
analyses.
    Mr. Hill. And integration.
    Ms. McGinty. And integration, yes.
    Mr. Hill. The point I'm getting at is that these should 
always be integrated into the alternatives. Would you agree 
with that?
    Ms. McGinty. I absolutely agree, yes.
    Mr. Hill. Have you spent any time looking at the Interior 
Columbia Basin study?
    Ms. McGinty. Some.
    Mr. Hill. And the proposed management plan. One of the 
complaints about that, and, frankly, I mean, I think widely 
accepted, is that the social and economic impacts have not been 
integrated into the alternatives.
    As a matter of fact, what has happened is that the 
alternatives have been analyzed in terms of their impact on the 
social and economic considerations, and that's a substantial 
difference. Would you agree?
    Ms. McGinty. I would agree and would be happy to pursue it 
with you. I am not as familiar with those details, though.
    Mr. Hill. And going to the road moratorium. Do you believe 
that the road moratorium is subject to NEPA?
    Ms. McGinty. In fact, there is a NEPA process underway on 
the road moratorium proposal, yes, sir.
    Mr. Hill. And the social and economic impacts would be 
considered as part of those integrated into the alternative 
that has already been selected.
    Ms. McGinty. I very much believe that the social and 
economic impacts should be considered. Now, I will tell you----
    Mr. Hill. No. Integrated. We said earlier integrated.
    Ms. McGinty. I want to share with you what I think is a 
problem and it has been an issue over the years, and that is 
whether or not social and economics get into environmental 
assessments, as well as EIS's. It's my view that they should 
and I would just share with you that I think it has not been 
the practice that the social and economic concerns are as fully 
integrated into EAs as they have been in EIS's, and I think 
that that's an area for change and improvement.
    Mr. Hill. Madam Chair, if I could just ask one more 
question. In the process of the development of this road 
moratorium, did you have discussions with Chief Dombeck with 
regard to the NEPA aspects of this and the advisability of this 
policy?
    Ms. McGinty. I did have conversations with him on both the 
policy overall and the NEPA application, too.
    Mr. Hill. And when did you initiate those discussions?
    Ms. McGinty. I would have to respond for the record, but I 
certainly did have several conversations with the Chief.
    Mr. Hill. Could you give us an approximate time when you 
think--you had several conversations.
    Ms. McGinty. Yes.
    Mr. Hill. But do you have an idea of when the first one 
might have been?
    Ms. McGinty. In the fall perhaps.
    Mr. Hill. Fall of 1997?
    Ms. McGinty. Late fall perhaps of 1997, just before 
Christmas.
    Mr. Hill. I find that interesting because Chief Dombeck, in 
his testimony, advises that he had no conversations with you 
with regard to the road moratorium issue.
    Ms. McGinty. Well, I would have to see what specifically he 
was referring to, but I was apprised. I did discuss with him 
the road moratorium.
    Mr. Hill. Thank you, Madam Chairman. Thank you.
    Ms. Cubin. The gentleman from Utah, Mr. Cannon. That's OK. 
I was going by seniority, but if you two can work it out. The 
gentleman from Nevada, Mr. Gibbons.
    Mr. Gibbons. I appreciate your kind consideration.
    Ms. Cubin. I'm just trying to fair to you.
    Mr. Gibbons. And the senior gentleman from Utah that's also 
here. Ms. McGinty, I just want to followup with what Mr. Hill 
said about the American Heritage Rivers Initiative. I also sent 
you a communication, a letter requesting an exemption from all 
rivers in the 2nd District of Nevada. The 2nd District of 
Nevada is 99.8 percent of the territory of Nevada, except for 
the downtown urban area of Las Vegas, which has no rivers.
    I have yet to hear back from you on our request. Can I 
assume then, because of our request for exemption, that no 
river in that area of the 2nd District of Nevada will be 
included?
    Ms. McGinty. Yes, sir.
    Mr. Gibbons. Thank you. All this talk about consultation 
with states over environmental projects and actions that are 
taking place and local governments, would you sort of balance 
out, for my education, Yucca Mountain in Nevada and the DOE's 
action and state consultations?
    Ms. McGinty. Yes, sir. In terms of what the state 
consultations that have been had or have not been had, I am not 
aware of the details with regard to that specific issue. But I 
think the issue is very illustrative to come back to the 
legislation that Congresswoman Cubin had raised.
    I would think some members of the Committee might give 
cause to the notion that the county in this case in Nevada 
would have decisionmaking authority, for example, as to whether 
Yucca Mountain would go forward.
    Mr. Gibbons. Or even the State of Nevada.
    Ms. McGinty. Or if the State of Nevada would have that kind 
of authority and, therefore, might want to take a second look 
at the proposed legislation. I think Yucca Mountain is a very 
good example as to why a broad-brush approach doesn't 
necessarily serve everyone's interest.
    Mr. Gibbons. In other words, what you're saying is the 
State of Nevada should have no say in this issue.
    Ms. McGinty. No. I would say very strongly that the State 
of Nevada should. I am just suggesting that some members of the 
Committee may have some pause about that, given the legislation 
that's been introduced, for example, to override the state's 
views on the Yucca Mountain issue.
    Mr. Gibbons. Ms. McGinty, moving on, what actions are you 
specifically taking to expedite the time delays between the 
time an environmental impact statement is asked for and the 
time it is granted and the permit is granted? Today we are 
seeing numerous years, hundreds of thousands of dollars 
expended, jobs at risk in order for many industries to get a 
permit.
    Ms. McGinty. Yes.
    Mr. Gibbons. And it is an unreasonable--in fact, it's an 
indefensible practice to delay, delay and delay. I want to know 
what you are doing to change that and I would like you to tell 
us what a reasonable period of time would be for you to issue a 
permit.
    Ms. McGinty. Well, sir, first of all, I do not issue 
permits, but let me respond to the thrust of your question. 
First, I have begun to resurrect that part of the regulations 
which gives the permitees the right to negotiate a NEPA 
schedule, so that there would be a schedule that is agreed 
upon.
    Another initiative that we have begun and related to that 
is that there would be performance indicators for an agency, 
which indicators would include how many times have you granted 
a permitee the right to negotiate a schedule with you.
    Related to that, I want to come back to one of the 
suggestions that Governor Geringer had made, because I think 
it's one of the most important new phases of natural resources 
management, and that is the idea of adaptive management. Get on 
with the process, get on with the project now, with the idea 
that you monitor it and you can change course if need be down 
the road, but don't wait until the perfect documentation or the 
perfect scientific thesis is written.
    Mr. Gibbons. Well, what problems I see in all of that 
proposal about a negotiated time schedule is that it holds 
agencies and industries hostage. It holds them hostage because 
only those that can afford to pay will get an expedited EIS.
    The cost of these EIS, environmental impact statements----
    Ms. McGinty. Yes. Yes.
    Mr. Gibbons.----is an enormous burden that ends up being 
delayed and delayed throughout the practice. I just wanted to 
get an estimate of the time you thought would be a reasonable 
time and I see that that's a little bit complicated to come up 
with a direct answer.
    And I just wanted you to also look at this picture, that is 
the Dixie National Forest in Utah, and take out the meadow that 
you have there in the foreground and put Lake Tahoe in it and 
it will show you the same theme, the same picture, with a lake 
in the middle, that has beetle-infested, fuel for a dangerous, 
disastrous, deadly forest fire, and would ask that if we come 
before your agency to show you the same conditions, will you 
grant that agency emergency waiver status to deal with that 
problem?
    Ms. McGinty. If the Forest Service comes forward, as you're 
suggesting, with an application for emergency procedures, we 
would sit down with them immediately.
    Mr. Gibbons. So it's not the forest manager.
    Ms. McGinty. It can be the forest manager. It can be the 
person who is on the ground, the forest supervisor. Yes. I 
think that, in fact, was the case in Texas. We deal with the 
people that were right there on the ground.
    Mr. Gibbons. That's what I want to get. I just want to find 
somebody that I can go to.
    Ms. McGinty. Yes.
    Mr. Gibbons. That's identifiable. I don't want a big, broad 
agency. I want the manager of this forest to come to you and if 
I can do that, you will grant him an emergency waiver.
    Ms. McGinty. I would have to work with him or her on the 
specifics of it. It's not a carte blanche, but it is--there is 
an opportunity for emergency provisions in the statute and I 
would be very happy to work with that forest manager if there 
is an emergency situation, yes.
    Mr. Gibbons. I see my time has expired, Madam Chairman. 
Thank you very much.
    Ms. Cubin. Before I recognize Congressman Cannon, I do have 
to make a point, since you brought up the cooperating agency 
status and said that Yucca Mountain might be why the Thomas 
bill is not needed.
    I have to point out that because an entity or a 
governmental entity has cooperating agency status does not mean 
that they can direct unilaterally what the result of the EIS or 
the EA or the recommendation will be.
    So they are just at the table and have a bigger role. So I 
think that your statement supports my position.
    Mr. Cannon.
    Mr. Cannon. Thank you, Madam Chair. Gale, it's nice to see 
you again, and, Governor and Ms. McGinty, I appreciate your 
testimony and the answers to the questions so far.
    I am motivated a little bit by the gentlemen from Nevada 
and Montana who have asked you about their states being exempt, 
but unfortunately, I just asked my staff, we have not sent a 
letter asking that my district be exempted from the American 
Heritage Rivers Initiative.
    I'm wondering if we can do that here just by my asking you.
    Ms. McGinty. If you are asking that rivers in your district 
be withdrawn from consideration under this initiative, I hear 
that and you have every right to do that and they are 
withdrawn.
    Mr. Cannon. As the head of the CEQ, you have the authority 
to put my mind at ease here on record with that, right?
    Ms. McGinty. I'm happy to followup with a letter to this 
effect. But it is a provision within the initiative itself that 
a Member of Congress can withdraw rivers in their district from 
consideration.
    Mr. Cannon. Thank you. I appreciate your doing that. If you 
would like to follow that up with a letter, I would like to get 
the letter. I'm still waiting for other things, I would remind 
you, from your agency.
    You heard Congressman Hansen vent a little bit. I would 
like to go back over some of his concerns and actually hear 
what you think about that.
    He characterized your discussions through e-mail with the 
solicitor of the Department of Interior, Solicitor Leshy, as 
agreeing that if an agency starts the process, then NEPA 
applies, but if the President starts the process, NEPA may not 
apply. Do you think that's a fair characterization of the law?
    Ms. McGinty. I think it's actually a very important 
principle of law that Presidential action, whether it's NEPA or 
very many other statutes, those statutes don't apply to 
Presidential action, military defense, the international trade. 
The President is given prerogatives to act on behalf of the 
interest of the----
    Mr. Cannon. In the case of the Antiquities Act, where you 
have a non-delegable authority, I think that was the context in 
which this discussion took place and the e-mails between you 
and your staff and Mr. Leshy and his staff.
    Is that a fair characterization that, in fact, if the 
President starts it, it's possibly exempt from NEPA, but if the 
agency starts the process, then NEPA applies?
    Ms. McGinty. It is absolutely the case that NEPA, again, as 
other statutes, do not apply to Presidential action. That is 
absolutely the case. And it's also absolutely the case, as you 
are suggesting, that should an agency initiative a process to 
declare--that would lead to the declaration of a national 
monument, I would have to respond for the record on that, where 
the lines are with NEPA's application or not.
    Mr. Cannon. First of all, I'm just asking you about the 
characterization of the e-mail that went back and forth, which 
I know you read because you responded to the press about that. 
Is that a fair characterization of what went back and forth 
between your office and Mr. Leshy's office? That 
characterization being that the agency, in this particular 
case, under the Antiquities Act, begins the process, then it's 
subject to the requirements of NEPA.
    Ms. McGinty. I do believe that is right. I would have to 
review the e-mail in question, but I do believe it is right. It 
is absolutely the case that NEPA does not apply to Presidential 
action. I believe what you are saying is right with regard to 
agency action.
    Mr. Cannon. You're a lawyer, as I recall. Is that right?
    Ms. McGinty. Not licensed to practice in any state of the 
union, however.
    Mr. Cannon. Have you ever practiced law?
    Ms. McGinty. No, I haven't. I went to law school. I worked 
for various firms during my summers in law school, but I have 
never practiced law.
    Mr. Cannon. Did you look at this issue legalistically? I 
mean, lots of e-mail went back and forth and, in fact, many of 
those e-mails were, I believe, authored by you, saying that you 
needed the President's--a letter from the President to initiate 
the action so as to avoid NEPA.
    Did you look at those letters as a lawyer or as a non-
lawyer?
    Ms. McGinty. Actually, the action was initiated prior to 
the President's letter. The action was initiated in the 
President's personal conversation with the Secretary of 
Interior. I believe on----
    Mr. Cannon. We had an oral communication here, an oral 
interaction between the President and the Secretary of 
Interior. I heard that in the press that you said that. I 
wondered if that was actually an accurate quote, but that was 
not my question.
    My question was, as you sent those letters, those e-mails 
saying that you needed a Presidential letter to start the 
process, were you doing that legalistically? Were you thinking 
as a lawyer or were you taking advice from other lawyers, 
either at CEQ or at Interior?
    Ms. McGinty. No. I was fulfilling the President's directive 
to me that he wanted the process initiated to review whether a 
national monument pursuant to the Antiquities Act could be 
established in this area. Again, because of his grave concern 
about legislation that was pending on Capitol Hill that he----
    Mr. Cannon. But you have not answered the question. Pardon 
me. I'm just wondering, when you authored those letters, when 
you said we need the--you said this several times, as I recall, 
we need the President to sign a letter, were you thinking then 
as a lawyer or were you acting on advice of other lawyers?
    Ms. McGinty. I was acting at the direction of the President 
to try to fulfill his directives that he wanted this process 
engaged and a----
    Mr. Cannon. With all due respect, Ms. McGinty, the e-mail 
was very clear that you were going to the President with this 
idea and that you wanted to go with a letter, not at his oral 
direction.
    Ms. McGinty. If I recall, if I am thinking of the e-mail 
you're talking about, that e-mail was to the staff secretary. 
The function of the staff secretary in the White House is to 
secure the President's review of documents, often that he has 
requested, and to secure then his signature of those documents.
    That is the e-mail that I believe you are referring to. The 
President requested the action.
    Mr. Cannon. No, no, that is not. There are e-mails between 
you, I believe, and I believe it's the Interior Department and 
other members of your staff, not the document controller of the 
President. But, still, I'm wondering, did you act as a lawyer 
when you did that or whose advice--did you get counsel as to 
that issue and if so, whose counsel was it? That is, legal 
counsel.
    Ms. McGinty. I was only fulfilling the President's request 
of me that the Interior Department engage in the analysis 
required under the Antiquities Act to inform his decision as to 
whether or not----
    Mr. Cannon. And when did the President give you that 
direction?
    Ms. McGinty. It was around the time that he spoke to the 
Secretary of Interior, so around July 4 of 1995 or 6. Six, I 
suppose.
    Mr. Cannon. May I have an additional 5 minutes to continue 
this line of questioning or would you prefer that we come back?
    Ms. Cubin. Actually, Representative Cannon, we are going to 
have two rounds and so if you wouldn't mind coming to that next 
time.
    Mr. Cannon. Yes, thank you.
    Ms. Cubin. And besides that, it's my turn, since 
Representative Pombo left, so hey.
    Ms. McGinty, you made it very clear and I don't argue this 
point because I am not an attorney and I don't know, but that 
NEPA does not apply to Presidential actions.
    Ms. McGinty. Yes, right.
    Ms. Cubin. But isn't the purpose of NEPA, in spirit, if not 
in the word of the law, to protect the resource? It's yes or 
no. I mean, it's to protect----
    Ms. McGinty. In part, I'd say--as we've been talking about 
before, there is an environmental component of NEPA, but it's 
broader. I think, to use current buzz words, it's about 
sustainable development is what NEPA is about.
    Ms. Cubin. Fine, fine. OK. So now, to quote NEPA 
regulations, this is the quote, ``Major Federal actions 
significantly affecting the quality of human environment are 
situations where the NEPA process should be triggered.''
    Ms. McGinty. Yes.
    Ms. Cubin. Now, isn't it, again, a bit disingenuous to say, 
well, the President doesn't have to--or NEPA doesn't have to be 
applied to Presidential action, when, in fact, that is what the 
purpose of NEPA is? Whether it's strictly spelled out in the 
law or not, because what the law actually says is that the lead 
agency should identify potential cooperating agencies.
    I mean, basically, if, in fact, the letter of the law 
wasn't violated, isn't the spirit of the law violated in this 
situation? Because certainly there are enormous impacts to 
people by Escalante.
    Ms. McGinty. I think--and related to Mr. Cannon's point, 
there are very few areas where the prerogative, through 
legislation, through tradition, through the Constitution, is 
retained specifically and exclusively by the President of the 
United States solely.
    In almost all instances, the authority is delegated to the 
agencies.
    Ms. Cubin. And this is considered an emergency, is that--I 
mean, the timing has been brought into question, that it was 
done for political gain, and this was considered an emergency 
that, even while people were being told this is not going to 
happen and other folks were being loaded in buses in Colorado 
to drive them down to Arizona, to make this announcement--I 
mean, come on, Katie.
    Ms. McGinty. Well, I would not say that this is an 
emergency in the sense of some of the other issues we've been 
talking about in terms of fires breaking out. We certainly 
were, and had communicated to the Congress, gravely concerned 
about the legislation that was moving on Capitol Hill, but it 
is true that the Antiquities Act relegates certain powers and 
prerogatives to----
    Ms. Cubin. I understand that, but that doesn't direct--but 
that does not answer the question that I am trying to get 
answered. So let's just move on.
    Like the others, I would like to have it on the record that 
we wrote a letter to CEQ and all of the rivers within the State 
of Wyoming are not to be included in AHRI. Thank you.
    One thing I have to say, though, is that I thought it gave 
me reason for pause when AHRI was sold as going to be, you 
know, local people are going to make the decision, even though 
we have a river navigator that isn't answerable to anyone 
except the political person who appoints him. But local people 
are going to be the ones to make the decisions and yet it's 
Federal people who are knocked out of the process when rivers 
are withdrawn from consideration.
    That just gave me reason for pause.
    Ms. McGinty. Of course, if there were local opposition, 
that also--significance local opposition, that is one of the 
criterion on which an application is judged. There has to be a 
demonstration of strong and broad-based local support.
    Ms. Cubin. One thing that we have had a problem with in my 
state, as well as--during a NEPA process, as well as the 
Federal agencies working with the state to get the process 
completed in a timely fashion, we have had a horrible problem 
with the disagreement between Federal agencies, between the EPA 
and the BLM and things like that.
    Do you think that the CEQ has a role in establishing a 
policy whereby different Federal agencies cannot get my 
constituents in a deadlocked, money-losing situation?
    Ms. McGinty. Yes, and----
    Ms. Cubin. And are you working on that? I know at one time 
you were working to streamline the process, but then I heard 
that you stepped away from that. So what is the status on that?
    Ms. McGinty. The answer to the first part of your question 
is absolutely yes. One of the major and, I think, not well 
implemented parts of NEPA is the scoping process, which process 
requires that all of the agencies are going to have a piece of 
this. Any agency is going to have an issue with regard to a 
specific project, be at the table and bring those issues to the 
fore in the initial stages of the project.
    This is one of the top priorities in the overall 
reinvention effort that we had launched. We had----
    Ms. Cubin. But our problem was that the agencies were 
brought together, but two Federal agencies disagreed.
    Ms. McGinty. Yes.
    Ms. Cubin. Which caused a long delay in any----
    Ms. McGinty. Right. And the point of the scoping exercise 
is supposed to be to iron out those differences and find a plan 
that everybody can move forward together with.
    Ms. Cubin. Just one last observation, because since I was 
so strict with Mr. Cannon.
    It was suggested to me, and regretfully so, that sometimes 
this Administration appears to promote the Leona Helmsley 
philosophy that laws are not for the Administration, but 
they're for the little people, and, you know, when I see things 
like Escalante and the American Heritage Rivers Initiative and 
the questioning that Ms. Chenoweth brought forward on what the 
legal role of government agencies is, it gives me cause for 
concern.
    The Leona Helmsley philosophy ought to be the least 
philosophy considered by anyone in government, I think.
    Mr. Pombo.
    Mr. Pombo. I'll pass.
    Ms. Cubin. Ms. Chenoweth.
    Ms. Chenoweth. Madam Chairman, I will forego my next line 
of questioning, but I would like to submit a letter for the 
record from the Central Arizona Project Association, from 
Robert S. Lynch, Chairman of the Board.
    Ms. Cubin. Without objection.
    [The information referred to may be found at end of 
hearing.]
    Ms. Cubin. Mr. Cannon.
    Mr. Cannon. Thank you, Madam Chair. Going back to the 
American Heritage Rivers Initiative for just a moment. There is 
some question about what level of government the CEQ will 
accept as opting out of the program for their area.
    In other words, you have certainly the Governor, I suspect, 
may be able to, and I'd like your response to that. But going 
down through, how about county commissioners or mayors or 
special districts within a town or political subdivision? Have 
you--where are we on that?
    Ms. McGinty. We have not granted the same veto kind of 
authority to the full spectrum of government officials that you 
just mentioned. Certainly we have with Members of Congress and 
as this discussion illustrates, there are many such waivers we 
have granted.
    But very much related to this, an application has to 
demonstrate broad-based and diverse local community support 
before it will be positively considered.
    Mr. Cannon. If a Governor asks to opt out, would you opt 
out for the Governor?
    Ms. McGinty. I can't--I am not aware of any such request 
that we have had. For the most part, the requests have come 
from Members of Congress, which we have granted.
    Mr. Cannon. But you would weigh lower levels of government 
in your process of deciding which waivers should be done.
    Ms. McGinty. Yes.
    Mr. Cannon. Let me just ask one other question on another 
topic here. If you look at the picture to the your left, this 
is an area that I--I have tracked horses through this area. I 
grew up and spent a lot of my youth in my area.
    One of the things I find disturbing is there is a group of 
environmentalists or a thought among some groups that this kind 
of devastation by pine bark beetles is natural and, therefore, 
acceptable.
    I take it when you earlier said that you had talked about 
that with the Forest Service, that is not particularly your 
view, but I would like to note that for the record.
    Ms. McGinty. Well, every specific instance, I think we need 
to have the scientists decide the land management--the land 
managers decide what is the best course. But I will say it is 
my experience that in almost all instances, the land managers 
believe that some management of the resources is necessary, if 
even just for the purpose of enhancing its environmental 
quality. That just leaving problems fester is not a workable 
solution.
    Mr. Cannon. So you think that this is a mistake that we 
have made, the picture that's represented here of the Dixie 
National Forest is a mistake and we ought to be solving that, 
if we can.
    Ms. McGinty. Well, I wouldn't want to criticize the actions 
taken by the land managers. I don't know what the situation has 
been. Certainly this is not a positive development that there 
is this kind of infestation, no.
    Mr. Cannon. That's what I wanted to hear. Thank you. I 
appreciate that.
    Ms. McGinty. But, also, there are many and varied causes. 
Sometimes it's lack of management. Sometimes it's overly 
intense management. I think we realize----
    Mr. Cannon. Right. We recognize there are all kinds of 
cause, but ultimately, I understand you as saying that you 
think this kind of infestation shows that a mistake has been 
made and we need to do something to correct that. We're not 
even talking about what to do to correct it. Maybe just NEPA, 
maybe we do other things, but you think that this is a problem.
    Ms. McGinty. Well, it could just be an act of nature, too. 
I don't want to cast blame with and blame----
    Mr. Cannon. Well, it's clearly an act of nature. These are 
bugs that are killing the trees. That is clearly an act of 
nature.
    Ms. McGinty. And I would strongly suspect that it is linked 
to management decisions that have been made in the past, 
whether----
    Mr. Cannon. Clearly you could have cut down a few trees 5 
years ago and solved the problem. A few hundred acres would 
have solved the problem and that didn't happen.
    Ms. McGinty. That may be the case in this instance, but 
there are other instances where clear-cutting, for example, has 
greatly exacerbated these kinds of problems and given the 
invitation for invasive species to come into an ecosystem.
    Mr. Cannon. Well, but not this kind of bark beetle, which I 
think we understand how it works and we know that you can 
contain it if you do that.
    Oh, the yellow light is on. Can you tell me, in just a 
minute, who was at the meeting on July 4 with the President 
when he communicated his interests orally about the creation of 
a monument?
    Ms. McGinty. The President spoke to the Secretary at a 
Fourth of July celebration on--I think it was the Eastern Shore 
of Maryland, where a Bald Eagle was released, and it was after 
that--I think right after that ceremony that the President and 
the Secretary had a conversation.
    Mr. Cannon. Who initiated it, were you there?
    Ms. McGinty. I was not there, no, sir.
    Mr. Cannon. I take it then that Secretary Babbitt told you 
about this or was it the President?
    Ms. McGinty. No. I had spoken to the President about it 
either before or after that, but certainly around that same 
time.
    Mr. Cannon. So did the President initiate the discussion or 
did Secretary Babbitt?
    Ms. McGinty. The President initiated the discussion.
    Mr. Cannon. And did you initiate the discussion with the 
President or did he initiate the discussion with you?
    Ms. McGinty. Well, we had been engaged in an endless number 
of discussions throughout the--since the inception of the 104th 
Congress, when legislation relevant to these lands began to 
move, and as you know, we had a whole series of actions that, 
yes, I discussed frequently with the President, veto threats, 
testimony against the legislation, and ultimately the 
establishment of the national monument, all of which were 
related to the same thrust that we had to, as you know, oppose 
the legislation that was moving.
    Mr. Cannon. Which legislation in particular was that?
    Ms. McGinty. The legislation that would have removed 
environmental protections from Federal lands in Utah.
    Mr. Cannon. I'm sorry. What?
    Ms. McGinty. I'm happy to provide it for you, but it was 
sponsored by the Utah Delegation.
    Mr. Cannon. Was it the wilderness bill?
    Ms. McGinty. I'm sorry?
    Mr. Cannon. Was it the wilderness bill that Jim Hansen 
introduced that would have created 2.1 or 2.4 million acres of 
wilderness?
    Ms. McGinty. Right. That would have reduced from----
    Mr. Cannon. So you felt compelled to do in a regulatory 
fashion what Congress deemed not to do.
    Ms. McGinty. Well, we were successful, I think, in opposing 
the legislation, but that didn't happen, of course, until the 
final days of the Congress, because there were still efforts in 
the appropriations process to deny our ability even to----
    Mr. Cannon. Are you suggesting that the regulatory process 
is co-equal with the Congressional process?
    Ms. McGinty. Well, regulations, of course----
    Mr. Cannon. As long as you accomplish your objective.
    Ms. McGinty. Regulations, of course, have the full force 
and effect of the law.
    Mr. Cannon. Of course they do, but they should follow 
Congressional intent, don't you think?
    Ms. McGinty. I absolutely agree with that, yes, sir.
    Mr. Cannon. But that's not what you just said. You said you 
were protecting what Congress deemed not to protect or was 
considering not protecting.
    Ms. McGinty. No. Congress did protect it, because the 
legislation was not passed. So the protections on those lands 
now remain in place. The legislation was failed.
    Mr. Cannon. The protections remained in place. It was a 
wilderness study area. With all due respect, that's a study 
area, not an internal designation. Congress has not acted to 
designate wilderness.
    Ms. McGinty. That's right, but Congress has acted to say 
that a wilderness study area is managed for wilderness purposes 
until Congress acts to change that designation.
    Mr. Cannon. The sum of what you're saying is that you and 
the President designated a monument because you know better 
about how to designate land in Utah than the Congress does.
    Ms. McGinty. Well, sir, the Antiquities Act is on the 
books, has been on the books----
    Mr. Cannon. And was massively abused, of course, in this 
case. But was your purpose to beat Congress at our game?
    Ms. McGinty. I didn't understand that you were pursuing a 
game, sir.
    Mr. Cannon. This is the national game done by the founding 
fathers. We have that authority and you're talking about 
usurping that authority from Congress.
    Ms. McGinty. No, sir, there is nothing--you have the 
authority to designate wilderness areas. That's right. A 
national monument, of course, doesn't designate wilderness 
areas one way or another. And, in fact----
    Mr. Cannon. It probably does eliminate wilderness areas. 
That's been my position for a long period of time. I think 
ultimately what you've done to the land is probably wrong and 
subjects it to injury that is unconscionable, like the 
bureaucratic process that doesn't work, is done to my home land 
down in southern Utah and I think that the approach--if you 
read the law, you would not have done so many acres.
    That is unconscionable and I think that that will be solved 
elsewhere. Thank you. Mr. Chairman, I'm finished with my time, 
and beyond.
    Mr. Pombo [presiding]. Thank you.
    Mr. Cannon. But I can't get over the fact that this is all 
a matter of oral interaction here at the Presidential level for 
making these kinds of decisions.
    Mr. Pombo. Ms. McGinty, I did not intend on touching this 
subject, but since we've heard so much about it this morning, I 
just wanted to ask. In terms of the American Heritage Rivers 
Initiative, how--I'll just ask you. How can you tell Mr. Cannon 
that his rivers are left out just unilaterally?
    Ms. McGinty. In designing the program, many Members of 
Congress requested that they have that ability and we wanted to 
respond positively to that and made sure that as the program 
was put together, that that would be an integral feature of the 
initiative. That if a Member of Congress wanted the rivers in 
his or her district opted out, vetoed, if you will, that he or 
she would have that right.
    Mr. Pombo. I'm one of them who asked, but--and I'm not 
arguing with individual members having that right. But in 
looking at your testimony and what the functions of the CEQ 
are, I see nowhere in here where it gives you or the Council on 
Environmental Quality the authority to make decisions like 
that.
    Ms. McGinty. Sir, I am obliged, pursuant to the National 
Environmental Policy Act, to ensure the coordination of 
environmental policy and what this initiative is about is 
ensuring that the agencies are working together in a way that, 
on a second thing that is called for in NEPA, that local 
communities begin to have a role in decisionmaking, begin to 
have an effective voice in decisionmaking processes.
    This initiative is about effectuating that directive and 
its intent in NEPA.
    Mr. Pombo. It just appears to me that the way this whole 
thing is being put together is that it's not an initiative, 
it's a new agency and you are the head of that agency and are 
making decisions for Forest Service, for the Department of 
Interior, for the Department of Agriculture, for the National 
Marine Fisheries Service.
    You are now the head of all of those agencies and are 
making those decisions. You're not coordinating the activities 
of those agencies. You are now the super-agency on all 
environmental issues and you are the one who now has been put 
in the position of making those decisions.
    Ms. McGinty. I will assume no decisionmaking responsibility 
for any statutory program which is a part of this initiative. 
For exam-

ple, I think it's the Environmental Protection Agency and the 
Department of Housing and Urban Development who have the 
authority to decide who gets a brownfields grant. We hope to 
have that integrated into this program, but I will not make 
those decisions. EPA and HUD will make----
    Mr. Pombo. Let's just use your example that you just gave 
me of the Brownfield cite. Is there someone from EPA here that 
you just coordinated with when you made the decision that none 
of the rivers in Mr. Cannon's district are going to be 
included? Is there anyone from EPA here?
    Ms. McGinty. Every one of these agencies is involved in 
this program and I think it's 13 different agencies 
cooperating, have already decided that should a Member of 
Congress act as Mr. Cannon has just done, to withdraw the 
rivers in his or her district, that they would be withdrawn. 
Those agencies have reached that decision as part of putting 
this initiative together.
    Mr. Pombo. And so you are the one who has been put as the 
head of this new American Heritage Rivers agency.
    Ms. McGinty. There is no agency that has been created here.
    Mr. Pombo. Who is in charge of it?
    Ms. McGinty. This is a collaborative interagency effort. 
There are, as I said, 13 different agencies.
    Mr. Pombo. But who is in charge of it?
    Ms. McGinty. They're all working collaboratively.
    Mr. Pombo. So no one is in charge?
    Ms. McGinty. They are reaching decisions on a consentual 
basis and we provide the----
    Mr. Pombo. Who chairs the meetings?
    Ms. McGinty. Sorry?
    Mr. Pombo. Who chairs the meetings?
    Ms. McGinty. There are many different agencies involved. 
CEQ acts as a convenor of those meetings. Some of my staff are 
involved in those meetings. I would say probably at every 
instance, someone from my office is involved in those meetings, 
but----
    Mr. Pombo. Do they chair the meeting?
    Ms. McGinty. They have been more collaborative than the, I 
think, question would suggest.
    Mr. Pombo. You and I both know if you sit down in a room 
with 13 different agencies, you don't sit around a round table 
and nobody chairs the meeting.
    Ms. McGinty. If this is helpful, the agencies involved in 
this will report to the President through me on what their 
recommendations are. They have done that throughout the process 
and putting the initiative together. It led to the President's 
execution of an Executive Order on this, and that will 
continues to be the process. But in terms of the decisions, it 
is the agencies that are reaching those decisions on how the 
project should be developed and implemented.
    Mr. Pombo. Maybe I can ask you the question in writing and 
have it answered.
    Ms. McGinty. That's fine. I'd be happy to.
    Mr. Pombo. In writing.
    Ms. McGinty. Fine.
    Mr. Pombo. It's apparent that you really don't want to 
answer it, so maybe if we do it that way, you can have your 
attorneys look at it and you can answer it.
    But I want to thank the panel for your testimony a great 
deal. I know that we kind of got off on a few other subjects 
during the panel, but I appreciate your testimony and thank you 
very much.
    Mr. Geringer. Thank you, Mr. Chairman.
    Ms. McGinty. Thank you.
    Ms. Norton. Thank you.
    Mr. Pombo. I would like to call up the second panel. Mr. 
Randy Allen, Mr. Michael Byrne, Mr. Dan Chu, and Ms. Lynn 
Scarlett. I would like to welcome the second panel up. Thank 
you very much. I am sure you're all aware of how the light 
system works. Mr. Allen, if you are prepared, you can begin.

     STATEMENT OF RANDY ALLEN, GENERAL COUNSEL, RIVER GAS 
                CORPORATION, NORTHPORT, ALABAMA

    Mr. Allen. Thank you for the opportunity to be here. I 
represent River Gas Corporation, a small, independent natural 
gas producer, with three shareholders.
    We currently operate over 500 wells in Tuscaloosa, Alabama, 
114 wells near Price, Utah, and some wells in Wyoming.
    Over the past 3 years, we conducted a study of every 
domestic coal basin. Every area showing strong potential 
involves Federal land. Our future is based on the premise that 
we will be allowed to extract natural gas in a prudent fashion 
from Federal lands.
    We are very concerned about the costs and timing of NEPA 
compliance. In its current form, NEPA can either be a very 
useful planning tool, encouraging prudent decisionmaking, or it 
can be used to block even the most environmentally sound 
proposal.
    How it is used depends solely on the Federal agents who are 
making key decisions throughout the EIS. This Russian Roulette 
is crushing small companies and driving large ones overseas.
    River Gas purchased 128,000 acres of leases in central 
Utah. Seventy six thousand acres of those were on BLM land. 
When we made the investment, we planned on a certain time-frame 
within which we would realize a return. In April 1994, an EIS 
was initiated for our proposal to develop our leases. We agreed 
to pay for it.
    The EIS originally was scheduled to be completed in 13 
months, before June 1st of 1995, within a $200,000 budget. It 
was completed in May 1997, almost 2 years late. We paid $1.3 
million for the effort, $1.1 million over budget.
    Some have said that our experience is the Poster Child for 
NEPA reform. Whether it is or not, it's an example of how the 
current system allows things to go terribly wrong and it 
demonstrates how much power is wielded by field level BLM 
employees without oversight.
    Early in the EIS, a small group of BLM employees clearly 
indicated that they were personally opposed to our project. 
Over the course of the EIS, the group manipulated the system to 
delay the process. It forced the contractor to back up and 
repeat work and forced us to spend a lot of money.
    They were hoping we would just go away, but we couldn't. We 
had invested our entire future in the leases in Utah and our 
wells on state and private land were prolific, indicating vast 
untapped reserves under our Federal leases.
    For example, in 1997, we paid the State of Utah $2.3 
million in royalty. Our EIS was completed over 9 months ago, 
yet we still have not received a single permit to drill on 
Federal land. That was as of yesterday. We could have received 
some today.
    The small same group who caused the problems during the EIS 
are working on our permits. This being said, most BLM employees 
are good to work with. Most of the people are good, they're 
honest, they have integrity, they're professional, but a small 
group involved in the process can cause big problems.
    NEPA also is fundamentally good. I think NEPA has done a 
lot to promote prudent decisionmaking in the process. I think 
the industry is better off for it. I think we would be 
concerned if were talking broad-ranging sweeping changes to the 
law, but in certain instances, it can get out of control.
    We need strong oversight during the process. We need to 
demand that agencies get control of the process early on and we 
need to develop a process allowing project proponents to raise 
concerns during the process.
    We need to set maximum time limits on the EIS process; not 
only on the entire EIS, but also on critical key points during 
the process. We need followup analysis. Many EIS's are made 
based on assumptions of previous EIS's on how different 
activities will impact the environment. No followup is done on 
these assumptions. So the same effects could be perpetuating 
themselves over time. Followup analysis needs to be done.
    Also, the employees inside the BLM, for the most part, are 
overworked, they're understaffed, and they're struggling with a 
very complex set of rules and regulations.
    I would request that in the budget-making process, that 
there be at least consideration given to dedicating money to 
resolving some of these issues in the field and dedicating 
employees for that purpose.
    Thank you for the opportunity to be here today. I've wanted 
to tell our story for some time. I hope it helps.
    [The prepared statement of Randy Allen may be found at end 
of hearing.]
    Mr. Pombo. Thank you. Mr. Byrne.

  STATEMENT OF MICHAEL J. BYRNE, VICE CHAIRMAN OF THE FEDERAL 
    LANDS COMMITTEE, NATIONAL CATTLEMEN'S BEEF ASSOCIATION, 
                         WASHINGTON, DC

    Mr. Byrne. Thank you, Mr. Chairman. I am Michael Byrne, 
Vice Chairman of the National Cattlemen's Beef Association, 
Federal Lands Committee, and Director of the California Public 
Lands Council. My brother and I ranch in a family partnership 
in northern California and southern Oregon on a fourth-
generation cattle ranch.
    Thank you for the opportunity to testify today. I would 
like to submit written testimony at this time.
    I wish to begin by saying that I have no doubt that the 
intentions behind NEPA were good. The vision encompassed in 
NEPA is that all Federal agencies work together to achieve, in 
quotes, ``productive harmony among our environment, economic 
and social objectives, and to give a voice to the various 
interests represented in the decisionmaking process.''
    It is my belief that NEPA has fallen far short of these 
goals in many respects. In my business, NEPA analysis is 
considered a broken process because of the endless delays 
caused by lawsuits and administrative appeals and the endless 
new interpretation of what is needed to fulfill NEPA's 
mandates.
    Implementation of NEPA with respect to ranching operations 
has created a lengthy regulatory maze, imposing a heavy 
economic burden on the ranching industry.
    In my opinion, the NEPA process has become a redundant 
exercise in document production, resulting in limited, on-the-
ground implementation of resource management, which is robbing 
the public of its intended benefits.
    More importantly, the way NEPA is currently being 
administered is subverting the whole purpose of the Act. In the 
original Congressional declaration of intent for NEPA, Congress 
stated that it is the policy of the Federal Government to 
create and maintain conditions under which man, and I 
underscore man, and nature can exist in productive harmony and 
fulfill the social, economic and other requirements of present 
and future generations of America.
    Instead, NEPA has evolved from a national policy designed 
to protect the integrity of the environment into an unbridled 
regulatory apparatus which subordinates the economic needs of 
the community to agency preferences for resource preservation. 
This situation causes uncertainty and apprehension in the 
ranching community.
    The livestock industry's experience with the NEPA process 
suggests it is time for Congress to clarify its original intent 
to the agencies and to the courts so that NEPA can be applied 
as it was supposed to be, instead of today's morass of delay 
and bureaucratic red tape.
    Currently, qualified range managers are tied up in the 
office with paperwork and endless coordination meetings with 
other agencies instead of being on the ground managing the 
resource.
    I am not here to argue whether the NEPA analysis should or 
should not apply to specific grazing decisions or whether the 
process is biased toward uses other than grazing. The fact is, 
most ranchers are already good stewards of the land and are 
dedicated to working within the regulatory constraints of the 
Act to demonstrate their good management to the American 
public.
    The Forest Service has estimated the cost of managing the 
forests and completing the NEPA work, as currently interpreted, 
to be more than double what the current range management's 
budget is. That means they want $2 for every one to comply with 
what they interpret Congress requiring them to do.
    Instead of doubling the agency's budget to fund a broken 
process, let's fix the process. The public's right to 
participate in decisions about the use of its public lands can 
be accomplished without spending an obscene amount of money.
    NEPA has turned into a money black hole for the land 
management agencies. We are funding a process. The process has 
taken control. We are more concerned about complying with a 
process than we are about managing the resource or making sure 
the American public's concerns are addressed.
    The procedural mechanism of NEPA is in dire need of 
overhaul. The following is a list of some of the positive 
suggestions for change. Overlap of regulatory statutes should 
be eliminated and consistent and coordination with the 
application of the Act among agencies should be mandated.
    Duplication of regulatory efforts involving multiple 
agencies leads to unpredictability and unnecessary costs and 
delays. The process should be amended to eliminate multiple 
analysis of the same allotment. Under the present system, it is 
not uncommon for a rancher to spend over 2 years working with 
the Forest Service or the BLM toward the completion of an 
environmental assessment, only to have the Fish and Wildlife 
come along and change everything with a biological opinion, 
effectively changing the completed EA.
    Agencies should coordinate efforts and the Act should be 
applied consistently. Under the present system, each Federal 
agency interprets and applies NEPA differently. For example, 
one agency can build a fence almost immediately, but another 
agency may have to wait up to 2 years to complete what it 
perceives to be the process.
    Agencies should have the authority to categorically exclude 
land management plans and grazing authorization from NEPA. 
Agencies should also be required to work cooperatively from one 
set of data, incorporating all the science necessary to meet 
the requirements of the applicable regulatory statutes.
    The public participation requirement extends the public 
involvement invitation to anyone interested in any livestock 
management action occurring on Federal lands, including small 
actions such as fence-building or maintaining range 
improvements.
    This broad-scale public participation ties the hands of 
ranchers and range managers attempting to make timely 
stewardship decisions. The public involvement requirement 
should be reevaluated to preclude the interested public from 
interfering with the minor decisions at the local level, where 
the agency land managers have been trained to make these types 
of decisions.
    The number of frivolous NEPA appeals is increasing, despite 
the opportunity for increased public participation in the early 
stage of allotment planning process. The result of more appeals 
is increased delay, expense, and exhaustive record production 
that have no positive effects on range management.
    For example, under the current grazing regulations, any 
member of the interested public may become involved in the 
decisionmaking process for any action relating to the 
management of livestock, including activities such as issuing, 
renewing and modifying permits or leases.
    In a recent letter from Director Shea to Senator Larry 
Craig, on appeals, he has estimated that the cost went from 
$52,000 in 1994 to over $350,000 in 1997 for just one regional 
office. This is unconscionable, because these appeals have 
mostly been denied because they are without merit.
    The 1995 Rescissions Act required the Forest Service to 
come up with a schedule for completing NEPA. The Forest Service 
estimates vary, but they are only at 40 to 70 percent complete 
of what they estimated, and, as has been testified to earlier 
today, the cost has been enormous, with the production being 
very slow.
    The bottom line is NEPA is a procedural law designed to 
ensure that actions of the Federal agencies are balanced 
between the needs of man and the environment by allowing 
everyone to voice their concerns in the decisionmaking process. 
Currently, we are caught up in the process that we are 
forgetting about the bigger picture, which is the public lands 
are being held in trust by the government for the benefit of 
all Americans.
    Right now, the American public and the resources are not 
being well served by the NEPA process.
    This concludes my testimony and thank you very much. I will 
be happy to answer any questions.
    [The prepared statement of Michael J. Byrne may be found at 
end of hearing.]
    Mr. Pombo. Thank you. Mr. Chu.

  STATEMENT OF DAN CHU, EXECUTIVE DIRECTOR, WYOMING WILDLIFE 
                 FEDERATION, CHEYENNE, WYOMING

    Mr. Chu. Good afternoon, Mr. Chairman and members of the 
House Resource Committee. My name is Dan Chu and I am the 
Executive Director for the Wyoming Wildlife Federation.
    We are a non-profit conservation organization, composed of 
over 3500 members, who are united by deep commitment to the 
protection to wildlife habitat, the perpetuation of quality 
hunting and fishing, and the protection of their right to use 
and enjoy public lands.
    Today I would like to provide our perspective on the 
function and effectiveness of the National Environmental Policy 
Act.
    NEPA was established in 1970 to establish the Council of 
Environmental Quality and to guide Federal agencies in their 
efforts to manage for sustainable development and to allow the 
public to be involved in the management of their lands and 
resources.
    Our members directly benefit from NEPA because it provides 
a forum for local people and local interests to be considered 
in Federal actions on public land.
    We educate and mobilize citizens to be involved in these 
decisions that affect the public land throughout Wyoming. We 
view NEPA as providing Federal agencies a formal process for 
responding to the public and determining if an action is truly 
in the public's interest.
    We believe that the purpose of NEPA is to establish the 
policy that all Federal agencies must, No. 1, be responsible to 
future generations; No. 2, provide environmental equity for all 
Americans; No. 3, allow for the beneficial use of the 
environment without undue degradation; four, encourage 
historical, cultural and biological diversity, as well as 
individual liberty; five, promote widespread prosperity for all 
Americans; six, manage for the conservation and prudent use of 
our natural resources; and, seven, consider and incorporate 
public comments and interests.
    NEPA does not have decisionmaking authority. Rather, its 
function is to provide a framework for disclosure and sound 
planning.
    NEPA requires that Federal agencies provide the public with 
full and adequate disclosure of impacts and effects of 
development. Such effects include ecological, aesthetic, 
historic, cultural, economic or health.
    To determine the true impacts of development, an adequate 
cumulative impact analysis must be conducted. Ultimately, a 
good cumulative impacts analysis can ensure the orderly 
development of our public natural resources under a multiple 
use mandate.
    Although we believe that NEPA is an example of great 
foresight and responsibility from Congress in 1970, we also 
feel that the implementation of this Act can be improved and 
streamlined. In fact, the topic of improving and streamlining 
the implementation of NEPA was a major topic of discussion for 
the Green River Basin Advisory Committee, on which I served as 
a member in 1996.
    In response to a growing number of concerns and appeals 
surrounding the cumulative impacts on proposed oil and gas 
development on Federal public lands in Wyoming and Colorado, 
both oil and gas companies and environmental organizations 
asked the Secretary of the Interior to initiate a formal 
process to help resolve conflicts.
    Secretary Babbitt formed the Green River Basin Advisory 
Committee, which I will refer to as GRBAC, in February 1996. 
The GRBAC was given a one-year charter; to ensure the 
reasonable development of natural gas and oil, while protecting 
environmental and other resource values on public land in 
southwest Wyoming and northwest Colorado.
    Secretary Babbitt, in cooperation with the states, selected 
16 members from the oil and gas industry, conservation groups, 
state game and fish agencies, local and state government, and 
any recommendations forwarded to the Secretary from the GRBAC 
received the wholehearted support of every single member on 
that committee.
    One of the issues we agreed to discuss was the use of NEPA. 
After much discussion, we reached consensus on some 
recommendations we felt could improve the implementation of 
NEPA and the process of oil and gas development on public 
lands.
    I would like to briefly point out some of the 
recommendations. For more detail, I refer you to the GRBAC's 
final report to the Secretary of the Interior.
    One of the most common issues of concern we discussed was 
the lack of interagency coordination in the NEPA process. We 
recommended, quote, ``improving coordination and communication 
among project proponents, affected agencies, and stakeholders, 
to reduce adverse comments and time required.''
    Specifically, we all saw a need for Federal agencies to 
improve interagency coordination prior to and during the NEPA 
process. We all felt that there have been too many instances 
where one particular development project had resulted in two or 
more NEPA documents initiated by different Federal agencies.
    Such a lack of coordination resulted in unnecessary delays 
and inadequate cumulative impact analysis.
    One complaint we heard from industry is that the NEPA 
process results in significant delays. Many of these delays 
result from a lack of accurate field data, detailing the status 
of existing wildlife and plant communities. We also recognize 
that industry and environmentalists alike are frustrated with 
the incompatibility of various Federal agency data bases, often 
precluding the share of key biological data.
    Another GRBAC recommendation addressed how to improve the 
format and content of the NEPA document, while reducing its 
size. ``Eliminate duplication in data requirements, as well 
consolidating and accessing existing data bases.''
    To this end, we recommend that Congress provide additional 
funding to Federal agencies for the purpose of consolidating 
various data bases to provide accurate and comprehensive 
biological data.
    Another recommendation was ``impact analysis should be 
based on scientific and realistic impact assessments, not 
speculation.'' This recommendation states that a common need of 
industry, environmentalists, and management agencies is that of 
having reliable and complete databases. Whereas industry 
strongly believes that it is not their responsibility to 
collect baseline data, Federal agencies have a legal and moral 
responsibility to the public to conduct a cumulative effects 
analysis and minimize impacts of the proposed development on 
other users.
    We believe the fundamental problem once again resides with 
inadequate funding of data collection. For this reason, we 
support the Teaming with Wildlife Initiative and believe that 
it could bring sorely needed funds to state game and fish 
agencies to conduct those baseline data studies.
    In conclusion, we applaud the great foresight and wisdom of 
Congress when they established the National Environmental 
Policy Act in 1970. Consolidating Federal agency data bases, 
improving interagency coordination, investing and filling 
crucial biological and cultural data gaps, and facilitating 
early communication between all resource users can enhance the 
implementation of NEPA.
    Thank you for this opportunity to comment.
    [The prepared statement of Dan Chu may be found at end of 
hearing.]
    Mr. Pombo. Thank you. Ms. Scarlett.

STATEMENT OF LYNN SCARLETT, REASON PUBLIC POLICY INSTITUTE, LOS 
                      ANGELES, CALIFORNIA

    Ms. Scarlett. Yes. I'd like to thank the Chair for 
convening the hearing and thank Mr. Pombo for his patience and 
perseverance and the committee members for their attention.
    As Executive Director of the Reason Public Policy 
Institute, a Los Angeles-based think tank, I am not here as a 
practitioner involved in the NEPA process, but rather as an 
analyst who has reviewed NEPA and other environmental statutes 
and practice.
    Let me offer a few brief comments, first, on NEPA goals and 
practice and then perhaps on some propositions for change. NEPA 
is unique, in my mind, among environmental statutes in several 
ways.
    First, as several folks have pointed out, it explicitly 
sets forth a goal of balancing environmental, economic and 
social values, not a dominance of one over the other.
    Second, it offers an opportunity for a big picture focus on 
environmental impacts rather than a single impact focus. Third, 
it is not prescriptive, but rather procedural and somewhat 
general.
    As with others, I think that NEPA was laudable in its 
intent, but it has not always fulfilled its promise. 
Specifically, sometimes we've had unintended consequences and, 
as we have heard much today, many procedural inefficiencies and 
some ineffectiveness, and I want to mention three in 
particular, which repeat some of what other folks have said.
    First, sometimes balance is absent. NEPA has been used 
rather as a tool to delay and stop rather than to improve 
projects in some instances, and this has been more evident in 
some areas, particularly forestry, highways and mining, than in 
others.
    On the other hand, some agencies only reluctantly comply 
and don't integrate NEPA into their plans, the result being 
that there is a failure to consider alternatives and a failure 
to make perhaps needed environmental improvements in some 
cases.
    Moreover, there is also little meaningful state, local and 
citizen participation, as we've sometimes heard.
    The third problem, again, to repeat, is that it has been 
time-consuming and costly, sometimes with no clear consequence 
resulting. Costs range from a few thousand dollars to, in one 
instance that I tracked, as much as $40 million for one EIS. 
Sometimes the process takes up to 6 years or more. Indeed, 
sometimes even closer to a decade. The cost on occasion is over 
10 percent of total project costs, although usually it is much 
smaller than that.
    Documents are long and inaccessible. One study that I 
looked at showed that the language in these documents is geared 
to the typical college graduate or a person with a graduate 
degree, rather than the general public.
    CEQ is aware of many of these problems, as are agencies, 
and they have attempted to reduce cost inefficiencies and 
improve public participation through some of the reinvention 
efforts that we have heard. Some of these efforts, I want to 
point out, have actually been successful. The DOE, Department 
of Energy, set up specific goals for reducing its median time 
for EIS's and for environmental assessments.
    It tracks those costs and, more importantly, actually 
discloses those to the public. The consequence is that the DOE 
has managed to reduce its average time for EIS's from about 3 
years down to less than 20 months.
    CEQ, as noted earlier, has also embarked on various 
reinventions, including the use of alternative dispute 
resolution, as Ms. McGinty suggested.
    Some of these reinvention efforts have been laudable and 
folks point to them as a reason for not making any changes. I 
would suggest that that conclusion is perhaps overly optimistic 
and there may be a role for Congress to rethink some of NEPA.
    While some agency reinventions have been successful, others 
are less so. For example, the Federal Highway Administration, 
despite streamlining, still has EIS processes that take many, 
many years. There is a lack of up front state and local 
participation, as we have heard repeatedly; a lack of 
interagency coordination and cooperation, despite reinvention 
efforts.
    The Forest Service often engages in costly over-evaluation 
in order to avoid litigation for fear that perhaps it hasn't 
covered all its bases.
    I want to put forth several options to consider, but first 
restate five problems and summarize them.
    One, there are no clear requirements in the statute for up 
front state, local and citizen participation or for the states 
to play a role as joint lead agency. Two, there is no mechanism 
to ensure coordination among agencies. Three, there are no 
clear requirements to report costs, length of time to complete 
EAs and environmental impact statements. Four, there exist 
substantial continued disputes over the scope of evaluations; 
and, five, inadequate attention to substance.
    I see my time is out, but I will just summarize very 
briefly several recommendations.
    One, I think with Ms. Norton, Congress may wish to consider 
establishing clear conditions and requirements for coordination 
of agencies and involvement of states and local governments.
    Second, again, with Ms. Norton, I agree that Congress may 
wish to establish conditions that would trigger mediation and 
conflict resolution. That now occurs, but only in a serendipity 
and not reliable fashion.
    Third, Congress may wish to consider clear requirements for 
NEPA costs, timing and results disclosure. That is very uneven 
among agencies at this point and what gets reported gets done. 
When you have those specific time lines that you report, it has 
a tendency to create incentives inside the agency to get things 
done.
    Next, Congress may wish to clarify and set bounds on the 
concept of significance and, finally, Congress may wish to 
establish basic consistency requirements, because the 
reinvention efforts we've seen to date have been uneven.
    In conclusion, fixing NEPA will not fix many of the 
problems with how agencies currently try to balance their 
multiple missions, including environmental protections, that 
they face, because some of the problems are embodied in other 
statutes.
    Nonetheless, there is room for NEPA improvement in a way 
that will enhance environmental results, public participation, 
and reduce costs.
    Thank you.
    [The prepared statement of Lynn Scarlett may be found at 
end of hearing.]
    Mr. Pombo. Thank you. Ms. Scarlett, you stated in your 
testimony that you didn't believe that the reinventions have 
solved all of NEPA's problems and you've come up with a number 
of suggestions for changes to the process.
    One of the things that we've spent a great deal of time on, 
and it kind of concerns me a little bit, is we talk a lot about 
the process of NEPA and how we get through the process, but I 
don't believe that there's a lot of effort being put forth to 
does this really do anything for the environment.
    I mean, we spend a lot of time on the bureaucracy of it and 
whether or not the bureaucracy is working, but is it doing 
anything for the environment by having this process in place.
    Do you have an opinion on that?
    Ms. Scarlett. I think you've pointed to an oft reported 
problem with NEPA. It is a very much process-focused statute. 
One of the things that I suggest might be useful to do is in 
addition to reporting the costs and the time-frame, I also 
suggest that it might be useful to actually require the 
reporting of results.
    That is not now done on a systematic basis and, again, that 
is a process, that is requiring reporting of results, but it 
has a way of changing the internal incentives that agencies 
face, making them more conscious that what this is all about, 
after all, is not simply producing a pile of paper, but 
actually achieving some end result that in some way improves 
the particular project that they were focused upon by 
incorporating environmental considerations, social and 
economic.
    Mr. Pombo. Most of the complaints that I have received, 
that my office has received over the NEPA process have not been 
centered around whether or not they were doing any 
environmental good. Most of the complaints that I have received 
have been over just the very process of doing it.
    I know I've had the opportunity to speak to Mr. Byrne on 
several occasions before and I know that you've gone through--
what is it--a 7-year process with NEPA?
    Mr. Byrne. Yes.
    Mr. Pombo. What grand development were you undertaking that 
required a 7-year process? Was it a major development that you 
were projecting?
    Mr. Byrne. We were trying to maintain a continuing, ongoing 
activity which had over a 100-year history, with substantially 
no changes.
    Mr. Pombo. What was that activity?
    Mr. Byrne. Grazing cattle on public land.
    Mr. Pombo. So you were trying to get a permit to graze 
cattle on public land, a process that had been occurring for 
100 years, and this has taken 7 years to get a permit.
    Mr. Byrne. We're trying to get our permit renewed because 
the courts came out and redefined permit renewal as the major 
Federal action, not really the grazing. We were not trying to 
do any large activity or project at all, except for what had 
been occurring there for 100 years. Except the paperwork part 
needed to be done again.
    Mr. Pombo. So you've gone through 7 years, a 7-year process 
to have your grazing permit renewed.
    Mr. Byrne. Correct. Plus, everything and anything out there 
was analyzed in the process. We are unfortunate. We used to 
believe we were fortunate to have live water and that allows us 
to have habitat and potential habitat for threatened and 
endangered fish and plants, et cetera. We also have wild 
horses, for which we had plans and developed things, but this 
analysis put them all together in one document.
    Mr. Pombo. In your experience with this, has it changed 
your compliance with environmental laws? Were you not obeying 
any environmental laws before you began this 7-year process?
    Mr. Byrne. I don't believe that we are any more in 
compliance with environmental laws as they were interpreted 
then and are interpreted now. What we are doing mostly is 
preventative type things, such as keeping the cows out of the 
riparian area so that they will not have an adverse effect, 
because the penalties are so severe that if it did happen to 
take a fish by some act, that it would preclude you ever doing 
it.
    Mr. Pombo. You state in your prepared testimony that we are 
funding a process, the process has taken control. Is it your 
opinion that if there was a--for lack of a better term--a 
different process that we went through, that this could have 
been done on a much shorter basis and at a lot cheaper cost?
    Mr. Byrne. Yes. I submit that when you're analyzing an 
activity such as grazing that's gone on in the same area at the 
same or less intensity than it has in the past, that it is a 
gross misappropriation of human and financial assets to 
undertake this type of analysis.
    If there was a substantial change, such as a big earth 
moving event or a large Department of Defense installation or 
something like that, I would concur that you need to do a big 
analysis, but to spend this amount of time and money on an 
activity that has a 100-year history, to me, is fairly 
ludicrous.
    Mr. Pombo. Mr. Allen, it's my understanding, from reading 
your testimony, you were attempting to develop a number of gas 
and oil wells.
    Mr. Allen. Only natural gas. We're a methane company.
    Mr. Pombo. Natural gas wells.
    Mr. Allen. Yes.
    Mr. Pombo. Did this project that you proposed involve a 
very large area?
    Mr. Allen. The overall area of the EIS study area was about 
300 square miles. We had 128,000 acres under lease. That was 
about two-thirds of the 300 square mile area. We had not leased 
the entire 300-square-mile block, but we originally proposed 
drilling 1,000 wells within that area. Our final proposed 
action was 601 wells inside that area.
    The wells would be spaced on 160-acre spacing, so that 
would be four wells for government section, four wells a square 
mile. Each well pad would require about one acre. So we would 
have four acres of well pad disturbance for each 640 acres of 
land.
    Mr. Pombo. And there was an estimated 600?
    Mr. Allen. 601 wells were our final proposal, yes. We have 
drilled 114 wells to date that are currently producing. We have 
not drilled a single well on Federal land. We are producing 
from land owned by the State of Utah and by private 
individuals.
    Mr. Pombo. So your entire development would have covered 
approximately 2,400 acres out of 128,000?
    Mr. Allen. I'd have to double-check the math.
    Mr. Pombo. It's 600 times----
    Mr. Allen. Each----
    Mr. Pombo. No. Actually, it's less than that. Six hundred 
wells and they're an acre a well, so it's 600.
    Mr. Allen. Plus some acreage to put in roads to the wells. 
So a little bit more than that, yes.
    Mr. Pombo. How many years have you gone through this 
process?
    Mr. Allen. We were notified by BLM in February 1994 that we 
needed to get through the EIS process before they could allow 
us to develop any wells. So we initiated it shortly thereafter. 
Our first meeting was in April 1994. The ROD was signed in May 
1997, about 9 months ago, and we have not received a permit yet 
to drill a well.
    Mr. Pombo. So it's been approximately 4 years.
    Mr. Allen. Yes. A few weeks short of that, yes.
    Mr. Pombo. Ms. Scarlett, in your understanding of NEPA, 
with Mr. Byrne's case, do you think that the original authors 
of the legislation intended on this being a major 7-year event 
when someone went to renew a grazing permit?
    Ms. Scarlett. It's hard to get into the minds of people in 
the past, but my own sense is that NEPA is increasingly being 
applied to very trivial instances. There is another similar 
example where when the Forest Service had gone through an EIS 
process with one contractor, that contractor pulled out and was 
replaced. There was no change in the project whatsoever, but 
they were then requiring that new contractor to again go 
through the EIS process all over.
    I don't think that was what was intended in the original 
legislation. And that's one reason, by the way, that I would 
recommend Congress considering perhaps better defining what 
significant is.
    Mr. Pombo. So that would be one of the recommended changes, 
for Congress to be a little bit more specific about when it 
intends this Act to kick in.
    Ms. Scarlett. That's correct.
    Mr. Pombo. Mr. Chu, just briefly, what everybody states and 
everybody that testifies before the Committee, without 
exception, always says that they are interested in protecting 
the environment, whether it's the Cattlemen that's sitting next 
to you or whoever it is. They all come in and say that they 
have no ill will toward the environment, they want to abide by 
all the laws, they want to protect our fish and wildlife, our 
clean air and clean water.
    Do you believe that that's possible for us to do that 
without going through a 7-year process to renew a grazing 
permit?
    Mr. Chu. I think so. And I don't know the particulars of 
why it took 7 years, but I don't know----
    Mr. Pombo. They're in Mr. Byrne's testimony. You can read 
that after the hearing.
    Mr. Chu. Yes, I think I will. But if part of that 7-year 
process was involved in collecting data or bringing together 
various laws or statutes, I don't know, but I guess the bottom 
line for us is that that those are public lands, that there are 
other public resource users out there.
    We understand that his livelihood depends on that 
allotment. But we just want to be ensured that those lands are 
going to be adequately managed by the permitee.
    I would suggest that if he had a very good record of 
management and had a good record of riparian protections and 
that sort of thing, then that 7 years could have been 
excessive.
    Mr. Pombo. Do you understand that the more people like Mr. 
Byrne that come in with testimony like he has or Mr. Allen with 
testimony like he has, that the more people that do that, the 
more pressure there is on Congress to change these laws? And 
that with your goal and with the goal of the other panel 
members to protect the environment, that the pressure, 
political pressure begins to build and a lot of these laws will 
lose some of their luster by doing that?
    Mr. Chu. Yes. That's certainly one consequence. One of the 
things that we've tried to do help along the NEPA process is 
we've been working on various land exchange proposals, where 
BLM land and private land would be exchanged, and we have sat 
down with the land owner, the proponent, and other interest 
groups prior to scoping and tried to hammer out a land exchange 
proposal that we can all live with before we take that to the 
BLM, and we believe that that will greatly expedite the process 
through NEPA because what's going to happen is you're going to 
have a lot less controversy, a lot less public acrimony over 
that particular land exchange, because we've hopefully dealt 
with most of the time bombs before we've even brought it in 
front of the BLM.
    That is one suggestion I would have. One of the programs 
that we have in our state is what's called coordinated resource 
management and it's a voluntary consensus effort, where the 
land owner or the permitee gets together with other interest 
groups and talks about wildlife and livestock management on 
that particular allotment, and try and come to consensus.
    And so we strongly support that kind of process, as well.
    Mr. Pombo. So you don't suggest that that process takes 7 
years.
    I want to thank the panel for your testimony. We have a 
vote on the floor, so I am going to temporarily recess the 
Committee. This panel will be excused and when I return, the 
final panel will have their chance to testify.
    [Recess.]
    Mr. Pombo. We're going to call the hearing back to order. I 
would like to welcome the third panel back. First off, I would 
like to apologize to you for the delay. Unfortunately, we don't 
control the floor schedule, so we have to kind of do this the 
best we can. But I appreciate you sticking with us.
    Mr. Leftwich, if you are prepared, you may begin.

 STATEMENT OF TIM J. LEFTWICH, SENIOR ENVIRONMENTAL SCIENTIST, 
   PRINCIPAL, GL ENVIRONMENTAL, INC., RIO RANCHO, NEW MEXICO

    Mr. Leftwich. Thank you, Mr. Chairman. I appreciate the 
opportunity to present testimony and appreciate your endurance 
here today and hanging with us.
    I am speaking on behalf of the National Mining Association. 
It's the voice and single representative of one of America's 
great basic industries.
    It's hard for me to say something that hasn't been already 
alluded to today, but I will attempt to make a couple of points 
about NEPA and the involvement of various agencies and the 
interaction of those agencies with NEPA.
    First of all, I'd call your attention to the display, to my 
left and to your right. This is a flow chart or a gant chart 
showing task and time lines associated with getting through an 
EIS process. We did this in the throes of four EIS's that were 
ongoing simultaneously in an attempt to get control of the 
process and understand the process.
    We've heard a lot of talk today about issues associated 
with the process and I guess I'm going to talk in a little more 
detail about that.
    First of all, as to time constraints and to time limits, 
this particular document details about a 36- to 48-month time-
frame for an EIS. Some have gone sooner than that, others about 
4 years.
    Another issue that's been alluded to during the testimony 
today is the costs. Again, as most of us know, the longer the 
time, the more the costs. In these particular examples, the 
costs have ranged from one-and-a-half to six million dollars to 
complete an environmental impact statement for mining 
activities in the State of Nevada.
    There is a study that was recently conducted by Dave Delcor 
that I would like to introduce for the record on the mining 
industry issues associated with NEPA, and I think that's 
illustrative of some of the points that I'm going to try to 
make today.
    Mr. Pombo. Without objection.
    Mr. Leftwich. One key issue that is not so much 
administrative or regulatory-driven is the role of EPA in NEPA, 
and that would take some statutory tinkering to fix. That 
problem that we have encountered is that EPA has a mandate to 
review and comment on every EIS that's prepared and that 
oversight tends to act as an 800-pound gorilla in the closet 
that the other agencies try to overkill in terms of baseline 
data collection and the process that's detailed to the left.
    I'm not sure what the solution to that is. One suggestion 
is to have EPA involved early in the process instead of coming 
in at the eleventh hour; so that during scoping, if they are a 
party at the table, since ultimately someone from that agency 
has to give final approval of the document.
    Another issue that we found particularly troublesome is 
lead agency and who is the lead agency as opposed to 
cooperating and coordinating that activity. It seems that there 
is a reluctance on the part of the lead agency to take 
responsibility for the process. We submit that it's important 
to agree on a schedule, it's important to agree on what the 
process really includes, and whether all of the issues that may 
come before the lead agency really need to be addressed.
    We think that can be done in scoping and also agree on at 
least taking a stab at a budget, because we find both schedules 
and budgets seem to be open-ended with the lead agencies.
    Another question that has, I think, caused confusion is 
when NEPA is actually triggered. There is an attempt to get 
agency involvement early on in the process so that NEPA can be 
formally triggered and at least start going through the 
process, as we know it. There is reluctance, however, on the 
part of many applicants or proponents to trigger NEPA until all 
the baseline work and all of the data has been collected, and 
then that gets into a circular pattern of problems with timing.
    If someone could flip the other chart over. In going 
through this, we have identified four or five specific areas 
that the NEPA process gets bogged down, and that's detailed in 
yellow. Obviously, you can't read those from that distance, but 
I think that the point of this is that a systematic approach to 
looking at the implementation of NEPA identifies where problems 
occur, where bottlenecks occur, and where the process just 
starts going in a loop, and resulting in long time-frames and 
additional costs.
    We think it's important for lead agencies to understand 
their role, to take the responsibility for guiding the process, 
to adhere to a schedule and also a budget. Hopefully, both of 
those are negotiated at the beginning of the process.
    Public participation certainly is a key part of NEPA and we 
feel like should be coordinated by the lead agency in the very 
beginning to identify issues as opposed to issues being 
interjected into the process in the eleventh hour. The ultimate 
result of that is delay and additional costs for things that 
potentially could have been identified in the very beginning of 
the process.
    That concludes my testimony. I have a more lengthy written 
testimony that you have and also a smaller version of what we 
lovingly refer to as the Dead Sea scrolls there, to try to 
identify what we think the process entails.
    [The prepared statement of Tim J. Leftwich may be found at 
end of hearing.]
    Mr. Pombo. Thank you. Mr. Loesel.

           STATEMENT OF JIM LOESEL, ROANOKE, VIRGINIA

    Mr. Loesel. Thank you, Mr. Chairman. My name is Jim Loesel. 
I'm the Secretary of the Citizens Task Force on National Forest 
Management. We are a conservation group in western Virginia 
that has interacted with the Jefferson and the George 
Washington National Forests for more than 15 years. We comment 
extensively on projects that are proposed in both of those 
national forests.
    Before I was the Secretary of the Citizens Task Force on 
National Forest Management, I commented on Forest Service 
projects for a number of other local groups. I'm one of those 
people who has been in the trenches interacting with an agency 
through NEPA.
    At one time, I was a Professor of Political Science at 
Washington and Lee University. I still enjoy talking with 
students. I talk to students at an international school every 
year. They are amazed that Americans have a law like NEPA that 
allows citizens to interact with government agencies. We are 
not only allowed to give them our opinion but that opinion is 
quite often taken very seriously and it helps shape the 
eventual decision.
    Students from Latin America, Asia, and Africa tell me ``If 
we tried something like that, we would be put in jail. There 
are colleagues of ours that have been put in jail for doing 
exactly what it is that you do and have an effect on the 
outcome of how your government operates.''
    It's given me pause to think from time to time how 
effective NEPA is as a manifestation of democracy. It's 
important. When we take a look at the big picture, we see all 
kinds of things that NEPA does. I've tried to outline some of 
these in my testimony. In America, NEPA brings the public into 
contact with the agencies, whereas agencies in other parts of 
the world don't want to have contacts with their citizens to 
talk about resource management. We provide information to the 
agency and we are able to bring up issues which the agency 
would otherwise have missed. There is a function in broadening 
the issues put before the agency. We help improve the quality 
of the environmental analysis through our participation. The 
bottom line is that the quality of the decisions are improved 
through our participation.
    I have people from the Forest Service that tell me 
repeatedly ``You and people like you make a difference. Thank 
you. We don't say that very often because quite often you make 
life for us uncomfortable or you force us to do things that we 
wouldn't have done otherwise. But off the record, let's say 
thank you for what it is that you and people like you do, 
because, in the long run, it makes a significant difference.''
    There is, of course, always room for improvement in the 
implementation of NEPA. I have made several suggestions for 
improvements in my written testimony. For example, I think 
there is a tendency for the Forest Service to use NEPA to look 
at more and more discreet, small projects as a result the 
projects tend to be fragmented, rather than a ``big-picture'' 
look for an area. It has become almost impossible to do larger 
area analysis through NEPA.
    On the Jefferson National Forest, we had Opportunity Area 
Analysis, which tended to integrate projects over a landscape 
or watershed area, over a 5-10 year period of time. There was 
great enthusiasm for this kind of process on the part of agency 
people, as well as members of the public, because it helped us 
focus on an area and all of the projects to be implemented over 
a longer period of time in that area.
    If you have a hundred projects spread all over the forest, 
you can't focus. You don't see the interrelationship among 
projects. So I would like to see changes that would allow an 
appropriate NEPA analysis at an intermediate level. It worked 
in the past and should work again in the future.
    Thank you. I will be glad to answer any questions.
    [The prepared statement of Jim Loesel may be found at end 
of hearing.]
    Mr. Pombo. Thank you. Mr. Caldwell.

   STATEMENT OF LYNTON K. CALDWELL, PROFESSOR OF PUBLIC AND 
ENVIRONMENTAL AFFAIRS, INDIANA UNIVERSITY, BLOOMINGTON, INDIANA

    Mr. Caldwell. Mr. Chairman, before offering my testimony, 
may I briefly state my qualifications for addressing this 
topic. Since 1962, author of numerous books and articles on the 
subject, and in 1968-69, consultant to the Senate Committee on 
Interior and Insular Affairs on legislation sponsored by 
Committee Chairman Henry M. Jackson.
    I was principal author of a 1968 Senate report on a 
national policy for the environment and introduced the concept 
of an environmental impact statement to make environmental 
policy operational. This was not an impromptu addition to 
Senate Bill 1075. It had been under consideration for at least 
a year before its formal introduction.
    We sought the most effective way to make the declaration in 
NEPA operational.
    May I offer three points for consideration by the 
Committee. One, as its name indicates, NEPA is a declaration of 
policy. Two, its procedures are intended to achieve its policy 
objectives. NEPA is not essentially a procedural statute. 
Three, complaints against NEPA are more properly directed 
toward misconstrued and insufficient support in the Congress, 
the White House and the courts, than to the Act itself.
    Beginning now with point one. NEPA declares a broad 
national policy for the environment. Specific goals and 
principles enumerated in Section 101 are intended to reflect 
basic and enduring values of Americans.
    NEPA has been emulated in nearly half of our states and by 
more than 80 nations abroad.
    Point two. Contrary to judicial misconstruction, the 
application of NEPA is not limited to pro forma procedures. The 
Congressional Record and public statements by Congressman 
Dingell and Senator Jackson clearly indicate that procedural 
requirements under Section 102 were intended to force agency 
compliance with the principles and priorities declared as 
national policy.
    In addition, the Act sought to correct abuses of 
administrative action by requiring disclosure of agency plans 
and projects to all Federal agencies whose missions would be 
affected and to state and local governments and the general 
public that would bear the consequences of agency action.
    Procedures mandated under Section 102, notably impact 
assessment, apply directly only to Federal agencies and are not 
comparable to the regulations administered by EPA.
    Point three. Criticism of NEPA is more properly directed 
toward lack of commitment in the Congress, the White House, and 
some agencies, and the courts, than to the Act itself or to its 
oversight by the Council on Environmental Quality. The CEQ has 
been consistently under-funded and understaffed, unable to 
perform important functions which the Act requires.
    In summary, complaints that the so-called NEPA process runs 
up costs and delays important projects are not fairly 
attributable to the Act itself. Misuses of the impact statement 
procedure have occurred, sometimes because of agency 
misallocation of planning costs; that is to say, pushing actual 
costs of a project on the impact statement requirement.
    For projects that conflict with Congressional intent, 
declared in NEPA, delays and costs required to ascertain a full 
accounting of unintended consequences may be justifiable. 
Congress has the power to reaffirm and reinforce this important 
national commitment. The culmination of 10 years of inquiry and 
deliberations by successive Congresses, environment may not be 
the salient issue of the moment, but our most reliable opinion 
analysts find it to be a core and latent concern of the 
American people.
    The Congress would be ill advised to act on the assumption 
that the public is indifferent to the values and principles 
that NEPA represents.
    Thank you.
    [The prepared statement of Lynton K. Caldwell may be found 
at end of hearing.]
    Mr. Pombo. Thank you. Mr. Hutchinson.

 STATEMENT OF HOWARD HUTCHINSON, EXECUTIVE DIRECTOR, COALITION 
  OF ARIZONA/NEW MEXICO COUNTIES FOR STABLE ECONOMIC GROWTH, 
                      GLENWOOD, NEW MEXICO

    Mr. Hutchinson. Thank you, Mr. Chairman. I represent the 
Coalition of Arizona/New Mexico Counties and I've had a rather 
remarkable journey arriving to that position as Executive 
Director, having been through the radical environmental 
movement and actually having been associated with Earth First 
in the early nascence of that organization.
    And I have found myself now at a crossroads, looking at the 
process that we decide environmental issues on, and that is the 
National Environmental Policy Act.
    The role of tribal, state and local governments was 
established under the NEPA and in the late 1980's, the state 
and local governments, particularly county governments, began 
to feel the physical impacts of reductions of revenue from 
economic activities on the Federal lands.
    This prompted research into the Federal statutes and 
regulations, which disclosed the requirements for inclusion of 
non-Federal governments in the environmental planning process. 
But up until that point, we had not really informed ourselves 
nor been informed of the ability for us to participate.
    Years of no active participation, followed by this keen 
interest, caught Federal agencies by surprise. If the past 
history of regulatory direction is an indication, the role of 
non-Federal governments will be defined over a period of years 
through judicial interpretation.
    And I think that's one of the reasons that I'm here today, 
is to have Congress take a look at possible remedies rather 
than years of court battles.
    One of the major areas of contention at this point, and it 
was alluded to earlier, was the recognition or being requested 
by the land management agencies or Federal agencies to be joint 
lead or cooperating agencies in actions affecting the 
environment within non-Federal government entities' 
jurisdiction.
    A number of conflicts have arisen out of this and I think 
it was properly portrayed earlier that those conflicts have not 
been resolved in favor of local governments or state 
governments or tribal governments and a number of pieces or a 
number of legal cases have been initiated as a result of 
denials of cooperating status.
    The administrative appeal process, which is part of that 
granting of cooperating or joint lead agency status, usually 
results in upholding the decision not to grant joint lead or 
cooperating agency status. This is usually long after the 
agency decision is implemented. At this point, the only option 
left to the counties is Federal court.
    During this delay, the adverse impacts to the local 
environment continue and I should stress at this point that 
it's the local environment, and it's not just the economic, 
social and cultural impacts, are having tremendous physical and 
biological adverse impacts.
    Federal agencies cannot nor should they bear all the 
responsibility for the lack of non-Federal government 
participation, because the law was there. The county, local 
governments, state governments, tribal governments could have 
participated. However, Fed-

eral agencies had an obligation to notify them of the ability 
to participate.
    One of the things that was alluded to in earlier testimony 
was a discussion about significance, significance of the action 
itself and significance of issues that are raised to be looked 
at in the NEPA process, and, again, this is an area of 
conflict.
    What we have seen is agencies and local governments 
disagreeing over the significance of impacts. And just a quick 
example, in Reserve, New Mexico, which comprises about 400 
people, it's the county seat, 35 people were laid off from the 
sawmill when it was shut down over a Federal decision. Those 35 
people don't sound like very much, but it was 20 percent of the 
work force in that area. And had that occurred in a major 
metropolitan area, Congress would have heard a scream that you 
wouldn't have been able to ignore.
    But those 35 jobs were very important and, therefore, 
significant to that local economy and the significance was 
ignored because the statewide analysis was done, and it was a 
brief one at that, on the economic impact.
    Federal agencies are in gridlock. No responsible official 
can make a decision that follows all of the procedural 
requirements contained in all the statutes and all the 
regulations all of the time. Clearly, Congress has an 
obligation to bring resolution to this and get uniformity into 
the decisionmaking process, because it goes across lines of the 
National Forest Management Act, Federal Land Management and 
Policy Act, the Endangered Species Act, the Clean Water Act, 
the Clean Air Act, and on and on and on. All of these have NEPA 
implications and they all have stops in them, and those stops 
are killing us.
    Thank you, Mr. Chairman.
    [The prepared statement of Howard Hutchinson may be found 
at end of hearing.]
    Mr. Pombo. Thank you for your testimony. One of the things 
that you said in your testimony, Mr. Hutchinson, was that you 
believed that the local environment suffered in this delay game 
that we go through in the NEPA process. Can you give me an 
example of that?
    Mr. Hutchinson. Yes, Mr. Chairman. Apparently--and I'll 
just give you a local example, an on-the-ground example from my 
area. The Gila National Forest is a watershed for our local 
area. We have had a significance decline in the quality and 
quantity of water coming off of those national forest lands.
    We identified that as a significance impact. Yet, the 
Forest Service refuses to even analyze that and in the last 
forest plan amendments that were run through the NEPA process, 
they didn't even--they barely looked at it. There was a 
paragraph that was maybe an inch and a half high on a Federal 
Register page devoted to any of the hydrologic cycle impacts.
    So these types of things are going on all the time. And 
then also the significance of impact to the local economies, to 
our schools, our road maintenance. All of those things are 
cavalierly cast aside as not having significance and, 
therefore, do not receive analysis.
    Mr. Pombo. Let me ask you this. If counties and states were 
brought in as a partner in this process, do you believe that 
environ-

mental issues and local social and economic concerns would be a 
part of the final document?
    Mr. Hutchinson. Absolutely. What started out and was called 
the county movement started in the county that I'm from, in 
Catron County, New Mexico. I played a part in drafting a lot of 
our land use plan and looking at the laws.
    I am very proud to say at this point that at least it has 
reached this level of recognition in Congress, but also at the 
state level with the BLM in the development of standards and 
guidelines for range land management in the state.
    The state has been granted joint lead agency status. 
Several counties who have significant BLM lands have been 
granted cooperating agency status. And those entities have 
members on the interdisciplinary teams actually drafting the 
NEPA document and it is making a significant difference in the 
outcome of the environmental impact statement.
    Mr. Pombo. Mr. Loesel, would you support--and I don't know 
if you've seen Senator Thomas' bill, but would you support an 
idea of requiring that the states and counties be equal 
partners in developing the document?
    Mr. Loesel. I have not seen the bill.
    Mr. Pombo. But just in general, and I won't ask you about 
that specific piece of legislation because I would not expect 
you to have read it.
    Mr. Loesel. I'd have to think about that. I can tell you 
that when we were doing Opportunity Area Analysis on the 
Jefferson National Forest, it allowed for active state 
involvement. A number of agencies found it worth their time to 
focus on the decisions that were being made as part of the 
Opportunity Area Analysis.
    I've seen a substantial decline in the state's 
participation as all these small decisions become very diffuse. 
Game and Inland Fisheries can't keep up with that volume of 
work to comment.
    I can think of two or three other agencies that are no 
longer at the table. I'm not certain that it's a question of a 
legal requirement. I think it's making it attractive for them 
to participate, to feel their input is meaningful, and to 
understand where their input would have some effect.
    Mr. Pombo. If they were included and it was a requirement 
that they be included from the very beginning, their impact 
would be part of the final work product. It would be required 
that they be an equal partner in developing an EIS or an 
environmental assessment. It would be a requirement that they 
be involved with it, instead of someone from a Federal agency 
coming into your state or your county and saying this is what 
we've decided and we wanted to update you on it.
    It would be, from the very beginning, someone would come in 
and say this is what we're looking at and we want your 
involvement in this from the very beginning and not someone 
coming in from the end.
    One of the complaints that I have heard from a number of 
western states is that their first involvement in it is when 
the decision has already been made.
    Mr. Loesel. You mean they weren't on the scoping list?
    Mr. Pombo. No.
    Mr. Loesel. That seems hard to believe.
    Mr. Pombo. I actually have one particular project in my 
district that a community meeting that was held, and a year and 
a half after the community meeting was identified as a scoping 
session. It was not at any time prior to that ever identified 
as a scoping session. It was a community meeting that was not 
attended by the state officials, the county officials, because 
it was a community meeting to discuss planning in one 
particular area or how they were going to deal with some 
environmental problems in one particular area.
    A year and a half later, it was identified as a scoping 
session and the final document that they ultimately came up 
with, that was ultimately presented to the county and state 
officials, supposedly was drafted from the input that they got 
at that one community meeting.
    Mr. Loesel. We don't let them get away with that kind of 
stuff in Virginia. I mean, we whip them into shape, I think.
    Mr. Pombo. As the Governor testified earlier, I think he 
would take issue with what you just said in that he wouldn't 
let them get away with it either, but the way that they do 
things is not exactly the same from state to state.
    Mr. Loesel. I recognize that. But I think we have played an 
important role in shaping how the Jefferson and the George 
Washington interact with the public.
    For instance, as part of the settlement agreement on the 
appeal of the Land and Resource Management Plan that was done 
for the Jefferson National Forest back in 1985, there was a 
requirement that there be an annual conference at which the 
Forest Service lays out for the public those projects which are 
going to be put on the table in the next year and to provide 
some background information.
    We are very proactive in making certain they tell us what 
it is that they want to put out there. If they don't do that--
if they don't give us advance information before they do 
scoping--we're on their case.
    We make certain that there are extensive lists where people 
get notice of NEPA opportunities. It's hard for me to believe 
that people who want to be involved would not be on lists--that 
they would allow that kind of action to go unchallenged.
    The public and officials have some responsibilities here.
    Mr. Pombo. There is a very different relationship. Let me 
turn to Mr. Leftwich just for a second. Has that been your 
experience with this process? Have they been forthright and 
notified everybody that this is what they were looking at and 
this is a scoping session that we're going to go through?
    Mr. Leftwich. In some cases, yes, in some cases, no. It 
seems to me the problem, though, with scoping is that the 
agency, particularly the lead agency is reluctant to, at some 
point, say we have scoped this. And what has been our 
experience is that additional commenters will come in at the 
eleventh hour in this process over here on the chart and 
suddenly you're back to square one.
    So there seems to be the need for opportunity for public 
participation and then at some point in the process there has 
to be a time where that's it, we have scoped this, these are 
the issues, and we're moving forward. And lead agencies are 
reluctant, in my opinion, to take that responsibility and roll, 
primarily because of the litigation and the appeals process 
that's been alluded to all day long.
    They feel like they are under a microscope and they're 
going to be sued if some commenter comes in right before the 
final EIS document hits the streets and raises another issue 
that requires an additional study that causes another delay and 
then you're back in the loop here.
    So I'm not sure--I think the whole public participation 
scoping issue needs to be emphasized and one of the suggestions 
that I would make is that Congress and CEQ ask for periodic 
reports from the agencies about their implementation of NEPA.
    I know of major land management agencies that don't have 
NEPA in their budget. It's not an identified line item that 
goes down to the district level where these projects are 
actually implemented.
    So what that says to me is it's not a priority, they're not 
budgeting for it, they're not staffing for it, there is not 
even some basic management skill sets within the agencies to 
get through what is a fairly complicated process.
    You throw in the integration of the other environmental 
laws that kind of get wrapped into this envelope of NEPA, where 
you're analyzing the Clean Water and Clean Air issues and ESA 
gets thrown in and 404 permitting from the Army Corps of 
Engineers and a multitude of other environmental laws that have 
specific permit requirements that are also looked at in the 
overall context of baseline information included in a NEPA 
document.
    Again, I think it goes back to who is charged with the 
responsibility of that process and that's the lead agency. So 
there's two or three key areas there. I think the public 
scoping is certainly one of them and the participation and then 
putting some sideboards on the process, and that's what we 
attempted to do because we had so many going on at the same 
time. We had four.
    We didn't really understand all the steps and the agencies 
certainly didn't really understand all the steps, and we're 
reluctant to commit to time-frames.
    The CEQ regulations talk about major energy project 
development and implementation under NEPA not taking over 12 
months. Well, that's kind of laughable given the time-frames 
that we're dealing with now.
    Mr. Pombo. What is the typical time-frame you're dealing 
with right now?
    Mr. Leftwich. Multi-year, three and a half to 4 years, some 
as little as 27 months.
    Mr. Pombo. And that's if there's not any litigation.
    Mr. Leftwich. Yes, and that's not including appeals. There 
are certain industry activities, and mining just happens to be 
one of those poster child type for the environment, that are 
appealed automatically. There are environmental groups in the 
west that automatically appeal every NEPA decision that has to 
do with mining. So that's a given.
    So that is even an add-on to this process that I've 
illustrated here. When appeal is then issued, the agency is the 
one who has to defend their decision and many times they don't 
have the legal resources and/or the technical resources to 
really do that, and then it falls back on the proponent to help 
provide that information and then the industry is criticized 
because they're controlling the process.
    So you just kind of get into this tailspin here of a loop 
that you can't get out of and I think if we were to sit down 
and say what is the really objective here, it's to analyze the 
impacts and spend time, money and people, those resources, to 
mitigate and to enhance the environment instead of the process, 
but we're spending all the resources on the process.
    Mr. Pombo. I think that's an important point and it is 
something that Mr. Hutchinson brought up earlier and that we 
have had other people testify to during this hearing, is that 
we end up spending the money, the time, the energy on the 
process and begin to forget that the reason we're doing this is 
for the environment.
    What's the typical cost of going through a NEPA process on 
a mine new that you're involved with?
    Mr. Leftwich. Of the four that we went through, the least 
expensive one was about $1.2 million. Another one was $6 
million and the company----
    Mr. Pombo. That's just process.
    Mr. Leftwich. That's to get to a record of decision.
    Mr. Pombo. You're not talking about doing anything for the 
environment. You're talking about $6 million of paper.
    Mr. Leftwich. That's correct. And what's deceiving about an 
EIS is if I were to bring in a typical mining EIS document, it 
may be two or three inches thick. But what most people don't 
understand is the huge amount of research, baseline data work 
that goes into compiling--it's a summary document. If you look 
at your handout of the process and the steps there, each one of 
those baseline studies may be another pile of paper, depending 
on the issue, ground water modeling, wildlife, all of those 
resources that are studied.
    And so those become a huge pile of paper there that back up 
the document which is really written to summarize the studies 
and to make some decision.
    Mr. Pombo. Let me turn to Professor Caldwell for a minute. 
One of the things that you stated a couple of times in your 
testimony was that a renewed commitment to NEPA, additional 
dollars to fund it, is what it needs.
    One of the problems that we have in looking at this whole 
process is that you look at a document like he's got laid out 
there that takes three and a half to 4 years, cost $6 million. 
How will additional money and people and a renewed commitment 
to the NEPA process shorten that?
    Mr. Caldwell. Mr. Chairman, I do think the additional 
funding would enable the CEQ to more extensively consider these 
problems. But let me add that there is a larger problem that 
hasn't been referred to and this ties now, I think, to the 
succession of Presidential Administrations.
    Under the Constitution, the President has the 
responsibility to take care that the laws be faithfully 
executed. But we have had a succession of Presidents that have 
not shown a very great enthusiasm for the implementation of 
NEPA.
    That does not mean that they have been opposed to it, but 
NEPA needs the very clear signal and support from the White 
House and also an objective kind of inquiry coming from the 
Congress to see that the NEPA intent is implemented.
    This Act was never intended to produce million-dollar 
impact statements nor to require the length of time that some 
of them take. We had, I think, the Alaska Pipeline impact 
statement that weighed about 50 pounds. Now, these are not to 
be attributed to the law itself.
    Mr. Pombo. What are they to be attributed to?
    Mr. Caldwell. To the misapplication of law, both in the 
Congress and the White House.
    Mr. Pombo. Do you think that they ever intended for the CEQ 
to become a super environmental agency?
    Mr. Caldwell. No.
    Mr. Pombo. That would have one person as the head of it and 
they would have complete and total control over all other 
agencies?
    Mr. Caldwell. Well, that is not the case now and it was 
never intended to be the case. The reason that the CEQ now has 
one councilor, Katie McGinty, is due to what I would regard at 
least as a judicial decision that under the Government in the 
Sunshine Act.
    If the three members of a council have meetings together, 
attempt to work out policy positions and so on, that those 
meetings must be scheduled, there must be notice, and they must 
be open to the public.
    Now, there are meetings, of course, where public 
participation is very desirable, but there are other kinds of 
problems that--where a committee needs to work through the 
issue before it can take an informed and intelligent position.
    So that I do think that it is a mistake to regard the CEQ 
as a potential high court for the environment or super agency. 
My disappointment, I guess, with respect to the CEQ is that it 
has not been able to be more effective.
    If you look at the section of the law which creates and 
empowers the CEQ, there are many things that it has not done, 
that it has not been permitted to do, in effect, by under-
staffing and by under-funding.
    For example, we have had several bills introduced into the 
Congress, one of them, interestingly enough, by what some 
people regard as an odd couple, Gore and Gingrich, calling for 
an estimate or some kind of a facility in the Federal 
Government for looking at or forecasting trends in environment, 
population and resources.
    You would think that this would be a very rational kind of 
thing to do, but it never gets anywhere with the Congress. Now, 
as I would read Section 202 of the National Environmental 
Policy Act, the CEQ could initiate such action if permitted to 
do so. But whether it's permitted to do so depends, I think, 
very significantly on Mr. President and on the respective 
committees of the Congress.
    There has been, to me, unaccountable, that there should be 
in the Congress such a resistance to any attempt to forecast. 
By that, I don't mean predict. I mean to look at the trends 
that are occurring in the society, their interactions, to the 
best of our knowledge, and draw from them at least certain 
findings with respect to the direction in which we're going.
    Now, we don't do that.
    Mr. Pombo. You don't understand why there would be concern?
    Mr. Caldwell. Pardon?
    Mr. Pombo. You don't understand why there would be concern?
    Mr. Caldwell. Well, the Wall Street Journal at one point 
had an editorial to the effect that this was going to be a bad 
idea because it would destroy consumer confidence, that we 
can't predict, we don't know what's going to happen in the 
future, and, therefore, it would be a waste of time and money.
    I don't agree with that assessment at all.
    Mr. Pombo. But when you have government agencies that do 
things like this and have this kind of a result, when you talk 
about expanding their power to that degree, it obviously is 
going to cause some concerns amongst the Members of Congress 
that the result will not be a streamlined process, but a much 
more heavy process that people have to go through that when you 
begin to shift everything to the Federal Government, you begin 
to cut counties and cities out and you begin to say if you want 
to do anything, you have to come to these 13 government 
agencies to get approval.
    All of a sudden Members of Congress begin to get real 
nervous about doing that. It's not that anybody is afraid of 
information. It's not that anybody is afraid to find out what 
the forecast would be. It's placing all of that power in the 
hands of one person who may have an agenda, who happens to be 
running one of the agencies. That's what the concern is.
    Mr. Caldwell. That certainly was not the intent nor the 
content.
    Mr. Pombo. From an academic point of view, sitting there as 
a professor with a great resume, you can say that this would be 
great if we had this information. As a policymaker sitting on 
this side, I'll tell you it scares the heck out of me to give 
that kind of power to the agencies, because this is not a one-
time event for me. I get people walking into my office every 
single day from my district with lists like this or with 7-year 
processes to get a grazing permit approved. That happens in my 
office every single day.
    So we have to try to figure out a way to protect the 
environment without punishing our citizens the way that we're 
doing right now.
    Mr. Caldwell. Well, I certainly agree with what you say, 
but I do not follow the reasoning that an attempt to track the 
trends that we now have, we can see in our society, to indicate 
how matters of population, resources, environment interact, and 
these are basically human problems, how that is going to create 
great power in any particular individual.
    Certainly there is nothing, in my view, of that as a policy 
question that would lead to that conclusion. I mean, the 
Congress has, certainly, the power to create whatever kind of 
institution and to lay down what groundrules would be 
desirable.
    Mr. Pombo. Let me interrupt you just on that point. You 
heard the testimony earlier about the American Heritage Rivers 
Initiative. That was not a Congressionally approved project. In 
fact, Congress said no, but they did it anyway. They took that 
power from Congress and created that agency anyway.
    So to say that we could just sit down and say you guys have 
to stay within the rules, well, maybe in theory that's the way 
it would work. In reality, that's not the way it is working.
    So there is some confrontation between the legislative 
branch and the executive branch in who gets to lay down the 
guidelines. I mean, everything that we're talking about here 
supposedly is a law that was passed by Congress and Congress 
has the ultimate decisionmaking power, and that's not 
necessarily the way it works in process.
    The way it works in process is these guys spend 4 years and 
$6 million coming up with a document that has dubious 
environmental quality to it and it's just a $6 million stack of 
paper. Now, if you ask Congress, would you rather them spend $6 
million on a stack of paper or actually do something to protect 
the environment, it would pass out of here unanimously to do 
something to protect the environment. But that is not the 
process that we're going through right now.
    So anytime we question the process, all of a sudden it 
becomes a question of whether or not we want to protect the 
environment. It has nothing to do with that. It has to do with 
six inches of paper and $6 million.
    Mr. Caldwell. Well, the complaint, it seems to me, there is 
to be directed toward the agency that is administering grazing 
permits or building access roads in the forests. It is not to 
the National Environmental Policy Act.
    We have the Public Land Management Act, we have the 
national forest legislation, and those are principal 
authorities or sources of authority on which those agencies 
act.
    Now, the power in the executive branch is certainly 
diffuse. I would argue for more effective use of the Executive 
Office of the President, which was created in 1936, during the 
Franklin Roosevelt Administration, to provide for a better 
oversight on the part of the Executive of the various agencies 
in the executive branch.
    It's been observed by some students of what the Federal 
Government does, that some of the agencies have been mandated 
by the Congress for particular reasons, for particular 
interests, to take certain kinds of action. These are issues 
that are often popular with particular Members of the Congress, 
but they also preclude an agency decision. If an agency, for 
example, is the Forest Service, through some, say, rider to an 
appropriation bill, mandates a clear-cutting of a large area in 
a national forest, the Forest Service is bound perhaps to do 
that, to follow what the Congress has decided.
    But many of these issues are not necessarily reflective of 
public opinion generally. They may be highly localized in 
their--both in their impact and their impetus. I mean, the 
power and activity that has brought about this legislation.
    So I think it's a more complex situation than perhaps we 
might----
    Mr. Pombo. But that's not--in theory, I understand what 
you're saying. In reality, two years ago or so, we passed the 
salvage logging bill through the Congress, through the Senate, 
signed into law. The executive branch refused to abide by that 
law and never implemented that law.
    It was passed, it was signed into law. They just decided 
not to do it. They didn't like it. So they never did it. 
There's a number of pieces of legislation that have been passed 
through this Congress that because of lawsuits or an agenda of 
someone within the execu-

tive branch never get implemented, and we end up with this kind 
of a confrontation between the legislative branch and the 
executive branch.
    I think that Mr. Hutchinson and what they have gone 
through, as they have been extremely proactive in trying to 
have local community involvement with these decisions.
    What Mr. Loesel is describing is having local community 
involvement and locally based people involved with these 
decisions. The way the process currently works, that just 
doesn't happen. I'm glad that Mr. Loesel claims he has not had 
those problems. I'm happy that he hasn't.
    If you were to talk to my constituency, you would hear a 
very different story than what we are hearing from you, because 
it's just done differently in different parts of the country.
    Mr. Loesel. Maybe you need me to come on out there and help 
organize some things.
    Mr. Pombo. That may scare my constituents more than----
    Mr. Loesel. Yes, it may. Could I answer a question that you 
asked initially about mandating through legislation involvement 
of states and--help me out with the other aspect.
    Mr. Pombo. It was to mandate the state and county 
involvement.
    Mr. Loesel. In theory, there may be one answer, 
Practically, I think there's not going to be enough money in 
the county or state budgets to get involved in all of the 
decisions. The practical result of that would be that the 
process would come to a halt. If it were structured in such a 
way that it required their active involvement and they don't 
have the money, then nothing could proceed.
    So I would be very careful about developing a process that 
requires--that wouldn't work unless their involvement were----
    Mr. Pombo. What is the annual budget of the organization 
that you represent?
    Mr. Loesel. About $4,000.
    Mr. Pombo. And do you participate in the process from the 
beginning?
    Mr. Loesel. Sure.
    Mr. Pombo. And your county that you live in could not come 
up with $4,000 on an annual basis to have somebody participate 
in the process?
    Mr. Loesel. But there's a difference. Most of the 
involvement from our organization is volunteer. They do it 
because they want to. You don't get that kind of volunteer 
activity from state agencies and from county agencies. It 
doesn't happen.
    Mr. Pombo. Mr. Leftwich.
    Mr. Leftwich. Mr. Chairman, this has raised an issue that 
we maintain is a huge problem with the current implementation 
of NEPA. It is that the agencies themselves don't have the 
wherewithal to implement this process over here. They don't 
have the technical staff and the management skill sets. They 
don't have the resources, period, in many cases to do this, and 
that's why there's these huge cost over-runs and it ties back 
into the process has kind of gotten out of control.
    It's not just gridlock. They cannot fulfill their mandate 
to implement NEPA.
    Mr. Pombo. I understand what you're saying, but I'm not 
going to agree with you, because I happen to be involved with 
the budget process, as well, and I would suggest that you take 
the Interior Department's budget and look at how much money 
they get. It's a matter of priority. It's not a matter of 
whether they have the money.
    Mr. Leftwich. I think that's right. I think that if you 
talk to many agencies, it's not even a budget item at the local 
level for NEPA implementation, and yet it's a requirement of 
the law.
    Mr. Pombo. It's a requirement, but it's not a priority.
    Mr. Leftwich. Yes, that's the problem. Plus, the process 
has become so cumbersome, I think that if the process was back 
streamlined to a reasonable level, that there would be adequate 
resources to produce the type of analysis that I think was 
envisioned in the beginning.
    But it's gotten so complex and out of hand that, in fact, 
agencies themselves, even if they had a budget, would probably 
not be able to staff adequately to do the level of detail that 
everyone in the world wants done in EIS's.
    Mr. Pombo. Well--yes, sir.
    Mr. Hutchinson. May I address that point?
    Mr. Pombo. Yes.
    Mr. Hutchinson. The process of involving non-Federal 
government entities, soil and water conservation districts, 
counties, states and tribal governments, we're talking about 
specific jurisdictions. Those entities already have plans and 
policies in effect.
    They already have state statutes and county ordinances that 
they are carrying out. The object in the NEPA process is 
disclosure, disclosure to the Federal agency decisionmaker what 
those plans and policies are.
    We're not talking about giant expense. Certainly, at the 
onset, when we got into this process, we had to do some 
economic analysis. We had to go out and hire some biologists 
and culturalists, et cetera, to take a look at it. But this is 
simply part of the checks and balances of our system. That's 
what those states are out there for. It's part of the check and 
balance system in our Federal system.
    So the additional cost or involvement in that is just part 
of the way of doing business in our country and most of those 
budgeted items are already in there. And as far as our county 
organization, we encourage voluntary participation by the 
citizens in the community on those communities that are 
bringing this input to the table for those Federal agency 
decisionmakers.
    Mr. Pombo. Let me ask you a question. You said you're 
involved with local planning in your county.
    Mr. Hutchinson. Yes.
    Mr. Pombo. Did you abide by Federal, state and county 
environmental laws when you developed your general plan? That's 
what we call them in California, a general plan. Did you abide 
by the laws or did you ignore those and just do what you 
wanted?
    Mr. Hutchinson. I think I would say that we abided by the 
principles, because there really wasn't any guidance for the 
area that we were going into. And the type of land planning 
that we're talking about, again, is more like a NEPA document. 
It's disclosure of the conditions, disclosure of the existing 
conditions, a reasonable prediction of future conditions, and 
will the natural resources that are there fulfill those needs 
in the future.
    That's a planning document. You can have social 
engineering, which is what a lot of planning documents end up 
as, or you can have a planning document that offers disclosure 
to decisionmakers, what the conditions are and what the 
possible conditions in the future are going to be.
    That's the way our document turned out.
    Mr. Pombo. Thank you. I want to thank this panel very much. 
We could go on the whole rest of the afternoon discussing this. 
But I appreciate your patience in waiting for the Committee to 
get to you. I appreciate your testimony and answering the 
questions a great deal.
    There will probably be additional questions that we will 
submit to you in writing. If you could answer those in a timely 
manner, we will hold the hearing record open for 10 days so 
that you can respond to those, but I know that the Chairman of 
the Full Committee did have some additional questions that he 
would like to ask.
    Unfortunately, he was not able to get back from his meeting 
before we adjourned. So I'm sure that there will be additional 
questions that he will have for each of you.
    Thank you very much. The hearing is adjourned.
    [Whereupon, at 3:35 p.m., the Committee was recessed, to 
reconvene at the call of the Chair.]
    [Additional material submitted for the record follows.]
   Letter of Robert S. Lynch, Chairman of the Board, Central Arizona 
                 Project Association, Phoenix, Arizona

    Dear Mr. Chairman:
    Thank you for the opportunity to testify at the Committee's 
September 24, 1997 hearing on the American Heritage Rivers 
Initiative and H.R. 1842 proposing to terminate further funding 
for this new ``program.'' I hope our reasons for keeping this 
spurious adventure out of the Colorado River Basin highlighted 
the potential for confusion and duplication of effort we see in 
the Initiative.
    I was troubled by the testimony of Kathleen McGinty, Chair 
of the Council on Environmental Quality. Specifically, I was 
mystified by her bald statement that Congress had authorized 
the Initiative in passing the Policy section (42 U.S.C. 
Sec. 4331) of the National Environmental Policy Act (NEPA). My 
notes reflect that she directly claimed that Section 101(b)(4) 
of NEPA constituted Congressional authority for the Initiative.
    My first reaction was: Why did it take the executive branch 
twenty-seven (27) years to discover this programmatic 
directive? Since NEPA is written in mandate format, how could 
this have escaped litigation by environmental groups for so 
long? Obviously, it couldn't because the authority doesn't 
exist.
    My second reaction was that the Supreme Court had dealt 
with this issue, making Ms. McGinty's position even more 
amazing. I did some research and thought I should share the 
results with you as you consider taking action on H.R. 1842.

Section 101 of NEPA neither authorizes nor requires action

    The nature of Federal agency obligations under NEPA has 
been the subject of a number of Supreme Court decisions. In a 
nutshell, these opinions say that Section 102 (42 U.S.C. 
Sec. 4332) contains the procedural requirements of NEPA, the 
so-called ``action forcing'' provisions, which are the only 
requirements of NEPA. NEPA contains no substantive law and 
invoking NEPA does not interfere with the ultimate agency 
decision if NEPA processes have been correctly conducted.
    Beginning at least with Kleppe v. Sierra Club, 427 U.S. 390 
(1976), the Supreme Court identified the NEPA ``program'' as 
its action-forcing procedural duties under Section 102. Id., 
427 U.S. at 409, n.18. Section 101 has been consistently 
described as a set of national goals. ``NEPA does set forth 
significant substantive goals for the Nation, but its mandate 
to the agencies is essentially procedural.'' Vermont Yankee 
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978); accord, 
Stryker's Bay Neighborhood Council v. Karlan, 444 U.S. 223, 227 
(1980). As recently as 1989, the Court has distinguished 
between Section 101's declaration of ``a broad national 
commitment'' and Section 102's ``action-forcing procedures.'' 
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348 
(1989).
    This being the case, no programmatic authorization can be 
tortured into NEPA goals. Any such new program must come from 
Congress.
    I hope this analysis is of some utility as you continue to 
address the Initiative and H.R. 1842.
                                ------                                


 Statement of Randy L. Allen, General Counsel, River Gas Corporation, 
                           Northport, Alabama

    I am general counsel for River Gas Corporation, a closely 
held independent operator of coalbed methane wells with 
approximately 100 employees. Since 1991, River Gas has 
purchased approximately 128,000 acres of oil and gas leases 
within a 300 square mile area in Carbon and Emery Counties, 
Utah, including 76,000 acres purchased from BLM, 27,000 acres 
purchased from the State of Utah and the remaining acreage 
purchased from private landowners. We currently operate 114 
wells in the area, but we have not drilled a single well on our 
Federal leases.
    In February, 1994, BLM notified us that we could not 
develop any of our leases until after an Environmental Impact 
Statement was prepared. BLM was the lead agency. No other 
Federal land management agencies were actively involved. One of 
my responsibilities was to coordinate River Gas' limited role 
in the EIS. We initiated the process in April, 1994, by 
submitting a proposal to drill up to 1,000 wells on our leases. 
The original schedule called for completion before June 1, 
1995, and the original budget was $200,000. The Final EIS 
Record of Decision was signed in May, 1997, over 3 years after 
it began and almost 2 years late. EIS expenses were over $1.3 
million, $1.1 million over budget.
    No environmental groups opposed the project. Local 
sportsmen were concerned about potential impacts to deer and 
elk. Most of the opposition came from governmental employees, 
primarily from within the BLM. Early in the process field 
agents of BLM indicated that they opposed our proposal and they 
would make the process as difficult as possible. As a result, 
the process quickly became adversarial. Individuals in the same 
organization that sold us property rights for a lot of money 
were actively working to block us from making use of the 
property it sold us.
    Based on our experience, we are concerned governmental 
agents may retaliate against us because of my appearance to 
testify, causing River Gas additional harm. We would like the 
ability to return in event retaliation occurs.
    Most BLM employees are hard working, conscientious, 
courteous, fair and reasonable. They sincerely try to do the 
right thing while handling an overwhelming workload with 
limited time and limited resources. Their jobs are not easy, 
particularly considering the complex and sometimes conflicting 
directives they must follow. They have fairly broad discretion 
to analyze each individual situation on its own merits, and try 
their best to issue well reasoned and fair decisions. When 
these people control the NEPA process it seems to work well.
    Unfortunately, there are a few bad apples. Through the free 
rein allowed by the current NEPA system, these agents can kill 
proposed projects by requests for expensive data acquisition, 
simple stalling, and other tactics described below. The system 
is flawed because these actions are allowed to happen without 
oversight and with no forum for project proponents to seek 
timely redress of abuses.
    We were fortunate. We survived the EIS process. If we did 
not control leases on a block of State and private acreage or 
had not been backed by larger financial partners, we would have 
been unable to drill our existing 114 wells. Without our 
partners and the producing wells, we would have been unable to 
cash-flow the EIS process. It would have killed us because we 
had invested our entire future on the Utah properties. Not all 
small companies are so lucky and few projects in the West can 
be partially developed without accessing Federal land. The 
uncertain timeframe and unpredictable up-front cost associated 
with developing Federal land are forcing larger companies 
overseas and crushing small companies.
    Of equal importance for state and national concern, the 
vast natural gas reserves underlying the project would likely 
never be developed if we had been unable to withstand the 
process. In 1997, we sent $2.3 million to the State of Utah in 
royalties, dedicated for the benefit of Utah school children. 
If we would have been forced to abandon the project before it 
was proven, it would have become tainted and other companies 
would have been hesitant to take on the risk. But for a stroke 
of luck, Utah school children would have lost a considerable 
resource and the U.S. taxpayers would have lost the potential 
for significant income.
    The NEPA process involves four critical steps: (i) 
identifying significant issues, (ii) describing what is known 
about the environment, (iii) developing alternative development 
scenarios, and (iv) analyzing how each alternative will impact 
each aspect of the environment. Each successive step builds 
upon the earlier ones. Changes late in the process can cause 
significant backtracking, delays and cost increases. For 
example, if a new issue is identified during impact analysis, 
the new issue may require additional data to describe unique 
aspects of the environment, modification of alternatives and 
new impact analysis.
    Field agents of the lead agency must be actively involved 
for successful completion of each step. As each step can 
involve broad discretion, avenues for abuse exist.
    As the project proponent in the third party EIS process, we 
agreed to pay a consultant to perform work on behalf of BLM. We 
were told that, based on BLM time and budget constraints, if we 
preferred to have BLM prepare the document in-house they would 
not have been able to complete it until 2005-2010. The 
consultant was to work under BLM supervision. Our involvement 
was limited to paying the bills, becoming involved with 
schedule concerns, designing our proposed action, and 
negotiating how much new information would be gathered through 
field surveys at our expense. We were included in discussions 
while alternative development scenarios were being developed. 
We were not involved at all with impacts analysis or 
discussions setting methodology. We wanted to make sure we had 
absolutely no influence on this part of the process. We did 
however pay enormous bills for the work. By signing the MOU we 
had signed a blank check, and we had created an interesting 
marriage. River Gas, a company in business to make profit, had 
agreed to pay for a government project. We knew up front that 
our involvement would be limited and that at times we would not 
even know the details about what we were paying for.
    Examples from our experience follow.

Identifying Issues

    Issues are identified through agency scoping and public 
scoping. Ideally, agency scoping should occur before public 
scoping to provide a strong foundation for public input. We 
understood this would happen on our EIS, but it did not. We 
also understood that public scoping would last at least 30 
days, but that BLM would continue considering new issues 
submitted after the deadline. We were told that public scoping 
never really ends, setting up strong possibility of future 
backtracking.
    We were very concerned about endless public scoping, but as 
it turned out it was not an issue in our EIS simply because the 
public did not identify many significant issues. The real 
problem in our situation was that agency scoping continued well 
into the process, creating an extremely fluid situation.
    In April, 1994, we met with BLM representatives from the 
Price River Resource Area office and the Moab District office 
to initiate the EIS. Price controlled all the data critical for 
the process and the EIS team leader resided in Moab. The State 
Director maintained signatory authority over the project. BLM 
informed us that certain data gaps existed, and we made plans 
to fill those gaps by contracting with third parties to conduct 
field surveys. We discussed that agency scoping would take 
place during the contractor selection process, and that as soon 
as the contractor was selected, a kick-off meeting would be 
held to (i) introduce each BLM resource specialist to each 
expert from the consulting company, (ii) discuss BLM 
expectations for each significant resource, (iii) cover 
methodology concerns and (iv) transfer all available data. We 
wanted everyone to be on the same page.
    The contractor was selected on schedule and the kick-off 
meeting was held on July 28, 1994. We flew the entire 
consulting team from Denver to Price for the meeting. We 
envisioned a serious group meeting followed by individual 
meetings between the experts, a field tour and data transfer. I 
thought the consultants would be leaving with clear direction, 
knowledge that they were on the same page with BLM agents, and 
truck loads of information. None of this happened. The meeting 
was chaotic. BLM field employees were not prepared. They came 
and went freely during the meeting. It was clear that they had 
given no thought to our proposal, the EIS or anything related 
to the meeting. Several comments were made by BLM agents that 
they wanted to see our proposed action, which had been 
available since the April meeting. No data or guidance was 
transferred.
    It was clear that the project was in serious trouble. Our 
budget and schedule were based on the assumption, supported by 
the EIS team leader, that if we filled certain identified data 
gaps all other data would be readily available. The schedule 
called for consultants to begin describing the environment 
during public scoping, so the alternatives could be defined 
immediately after scoping and the impacts analysis could 
proceed shortly thereafter. The original $200,000 budget was 
based on this also. Because we had no cooperation or concern 
from the Price office, the entire game plan which had developed 
from the April meeting had dissolved. Since the budget and 
schedule were based on the game plan, they were no longer 
valid.
    Although agency scoping had not really begun, public 
scoping began in August, 1994. A public meeting was held on 
September 8, 1994 in Price. The BLM hydrologist and BLM 
recreation specialist each arrived with a separate group of 
friends. On several occasions during the presentation, I 
noticed that the BLM hydrologist leaned to the gentleman 
sitting next to him, whispered in his ear, then the gentleman 
rose to ask a question relating to water issues. The same thing 
happened after the BLM recreation specialist whispered to those 
around him. It was my impression that BLM agents were rallying 
opposition to our proposal during the public scoping meeting.
    No significant new or unexpected concerns were raised by 
the public. I don't recall any detailed discussion about deer 
and elk being a major concern during the meeting. Most of the 
discussion centered on socioeconomics, noise, air quality, 
water quality, and visual impacts, routine topics for an EIS. 
Following the meeting I was approached by the BLM wildlife 
biologist who stated that the biggest roadblock to our project 
would be deer and elk. I'll never forget the look in his eye as 
he said it. At the time I did not understand what he had said. 
I understood the words, but I could not comprehend how big game 
could be the deadly issue because it had not been raised. The 
meaning soon became clear.

Data Availability & Adequacy

    During public scoping the Price office prepared a memo 
requesting libraries of new information that would be critical 
for beginning the EIS analysis. I thought we had settled all 
data issues when we agreed to fill certain data gaps the 
previous April, five months earlier. BLM's EIS team leader 
indicated we should not be overly concerned by the memo and 
that the issues would be resolved.
    A meeting had been scheduled on September 16, 1994, the 
week following the public scoping meeting, to discuss the 
alternative development scenarios that would be analyzed in 
detail. The meeting took place in Price as scheduled, but no 
alternatives were discussed. The meeting focused on BLM's 
requests for additional information to describe the 
environment. The EIS team leader had been unable to resolve the 
issues. BLM requested that we pay to gather a great deal of 
additional information through field surveys before the EIS 
analysis could begin. Some of the requests seemed legitimate, 
but others were outrageous. For example, the cultural resource 
expert wanted a class III survey of the entire 300 square mile 
area, which would entail a team of archaeologists walking the 
entire area separated by no more than 15 meters.
    We needed a process to reach final resolution of the issues 
quickly. No one was available with the appropriate authority 
and no process existed. Simply because agency specialists 
issued requests, we were forced to have experts research the 
legal and scientific bases for the requests to determine 
whether they were appropriate. After we had performed our 
investigation, no procedure for redress was available to us. 
Responding to the requests was very time consuming and 
expensive. We agreed to perform some of the surveys, but not 
all of them. We attempted to resolve the remaining issues 
through follow-up meetings with the very agents who had 
requested the information in the first place. We had to 
convince them they were wrong without any objective oversight. 
It was a difficult situation.
    During one of the meetings, the BLM recreation specialist 
said that he had moved to Price from California, he had seen 
what oil and gas companies had done there, and he was not about 
to allow that to happen in Price. I still do not know what 
companies had done in California, but he had clearly 
articulated his personal opposition to our proposed 
development. Other agents in the Price office made their 
opposition known through their actions and inaction.
    Following several follow-up discussions, a meeting was held 
on November 4, 1994 involving BLM, USFS, USFWS and Utah 
Division of Wildlife Resources. By this time, the issues had 
been narrowed and the most significant issue involved deer and 
elk. BLM and DWR explained they had enough information to know 
where big game critical winter range was and where high value 
winter range was, but they needed to determine where the most 
critical portion of the critical range was. Without this 
information, DWR and the BLM wildlife biologist indicated they 
would be forced to protest the development. A three to five 
year survey was required at an estimated cost of $500,000.
    A DWR official indicated, with a great deal of emotion, 
that he knew our proposed development would decimate the elk 
herd and he was not about to leave that legacy for his 
grandchildren. When asked whether his assertion was supported 
by empirical evidence, he did not answer. The entire discussion 
was more emotional than scientific.
    We could not conduct the survey. The projected expense was 
more than double our entire EIS budget and it would have 
delayed the EIS three to five years. Based on our reading of 
the CEQ regulations, adequate information was readily available 
to go forward with the EIS. However, based on our perception 
that BLM agents coached the public to oppose us during the 
public scoping meeting and DWR's obvious concern, we wanted to 
make sure there was enough information to avoid successful 
appeal. We ordered a literature review, which ultimately 
amounted to two inches of paper documenting studies performed 
on big game. It cost over $50,000.
    The consultant presented the draft to BLM in January, 1995. 
BLM requested an impact summary and conclusions. We objected 
because the EIS process itself is intended to assess potential 
impact, and there is no need to include it in a literature 
review. After discussion, we directed the consultant to prepare 
the impact summary and conclusion. They would need to do the 
work anyway in the EIS, so we believed it would not create 
extra work or expense.
    Once the modified report was presented, BLM wildlife 
biologist objected to the conclusions and requested peer review 
of the report. It was our understanding that peer review should 
take place during the public comment period on the draft EIS. 
After additional delay on this topic, the literature review was 
finally accepted in October, 1995, over 11 months after it 
began and over 9 months after the first draft was submitted.

Alternative Development Scenarios

    A range of alternative development scenarios, including the 
no action alternative and the proposed action, must be analyzed 
in detail in an EIS. While the events described above were 
ongoing, many meetings took place to develop the alternatives 
that would be analyzed in detail. Since the most significant 
concerns revolved around potential impacts deer and elk, the 
alternatives were developed with this concern in mind.
    On December 1, 1994, the alternatives were finalized in 
concept. On May 23, 1995, almost 6 months later, we learned the 
alternatives had been thrown out by the Moab District Manager, 
the EIS team leader's boss, at the request of the Price BLM 
resource specialists. Through subsequent discussions with BLM, 
we believe the EIS team leader's efforts to gain control of the 
project were being thwarted by field level BLM experts who were 
going over his head to change his decisions. As a result, the 
project was delayed and we were forced to pay the consultants 
to repeat work.
    A new set of alternatives was finalized in concept during a 
meeting on October 26, 1995. For the first time during the 
process, the consultant had the clear direction necessary to 
move forward in earnest drafting the document. On February 5, 
1996, the consultant presented the preliminary draft EIS to BLM 
for review.
    The next month, during meetings on March 20-21, 1996, the 
BLM wildlife biologist suggested that a new alternative be 
developed for detailed analysis. In consultation with the Utah 
DWR, BLM at this time knew which portions of big game critical 
winter were the most sensitive areas. The areas were known as 
Security Areas, and a new alternative was presented on April 3, 
1996, which would create no surface occupancy zones within the 
Security Areas.
    The areas were depicted without regard to property 
ownership boundaries or our valid existing lease rights. 
Without becoming bogged down with those or other related 
concerns, we were very concerned about the data used to create 
the Security Areas. On November 4, 1994, we were told that a 
three to five year study was necessary to determine boundaries 
of the most highly sensitive portions of critical winter range. 
Approximately 18 months later, the information they desired had 
somehow become available and it was being used as the basis for 
a new alternative being proposed at an extremely late date in 
the process.
    When asked whether any field surveys were conducted over 
the past 18 months, the BLM wildlife biologist stated that none 
had been performed and that the Security Areas were based on 
his 18 years of experience and his consultation with Utah DWR.
    It is possible that the information was known in 1994, and 
the study request was simply an attempt to delay the process 
for three to five years. It is also possible that the Security 
Areas were not based on scientific information at all. In any 
event, it is unclear why it took 2 years after the EIS began 
for the alternative to be proposed by BLM. Nonetheless, the 
Security Area Avoidance Alternative was designed, drafted, 
analyzed in detail and presented as the BLM preferred 
alternative in the Draft EIS.

Impacts Analysis

    After the environment is described and each alternative is 
designed, an assessment is made as to how each alternative will 
potentially impact each significant aspect of the environment. 
The system has established extreme deference to the judgment of 
Federal resource specialists on scientific issues. Scientists 
routinely disagree on how to interpret the same information and 
on how the impacts should be assessed. It is important that the 
government scientists agree on the methodology before the 
consultants begin their work. Otherwise, the consultant may be 
forced to repeat the analysis causing additional expense and 
delay.
    Through our consultant I understand that BLM routinely 
responded to the consultants' requests for input on methodology 
with statements along the lines of ``You are the expert, they 
pay you the big bucks to figure out those things.'' In general, 
there seemed to be an attitude among BLM resource specialists 
that they did not want to be bothered until the work was 
completed. So BLM did not know the thought process behind much 
of the work when the preliminary draft EIS was presented for 
BLM comment. Without the proper guidance up-front and BLM 
involvement during the work, the consultants' work failed to 
meet BLM expectations in several areas, leading to further 
backtracking, further delay and additional cost repeating work.

Delayed Response to Preliminary Draft EIS

    To ensure the document meets lead agency approval before it 
is issued to the public, a preliminary draft must be reviewed 
by the lead agency and changes will normally be made. In an 
ideal situation, the lead agency works so closely with the 
consultant during the process that few changes are required. 
Our EIS did not follow the ideal scenario.
    As discussed above, the preliminary draft was presented to 
BLM on February 5, 1996. BLM's EIS team leader agreed that all 
BLM comments would be submitted to the consultant by February 
19, 1996. Preliminary comments were submitted on March 13, and 
a meeting was arranged for March 20-21 to discuss the comments 
in detail. During the meeting, major changes were requested 
including inclusion of the new alternative, later called the 
Security Area Avoidance Alternative.
    The requested changes meant the consultant had to gather 
additional data and perform new impacts analysis. During the 
March 20-21 meeting, BLM resource specialists indicated they 
would provide the information to the consultant soon. On May 7, 
1996, the consultant still did not have the necessary 
information, so the BLM EIS team leader ordered the consultant 
to go forward with its work without the information. He was 
unable to force the resource specialists to perform their jobs, 
so he attempted to push the project forward without them. The 
consultant simply did not have what it needed to go forward 
and, even if it did, would have been reluctant moving forward 
without specialist approval for fear of future backtracking. On 
June 17, 1996, the consultant received the final guidance on 
which it had been waiting, nearly three months after it had 
been promised.
    In an effort to avoid repeating delayed review of the 
second preliminary draft EIS, the EIS team leader issued a 
letter to the BLM Price office dated May 30, 1996, stating that 
only 2 weeks would be allowed for review of the second 
preliminary draft. The consultant submitted the document on 
July 15, 1996. A meeting was scheduled for July 31 between BLM 
and the consultant to review the comments. During the meeting 
an additional 3 weeks were granted so the review could be 
completed.
    With the extension, BLM comments were due on August 22, 
1996. They were submitted on August 27. The consultant made the 
requested changes and submitted the third preliminary draft on 
September 17, 1996. Following minor changes and BLM approval, 
the draft EIS was submitted to the public for comment on 
October 10, 1996.

Public Comment

    Two public meetings were held, one in Price, Utah and the 
other in Emery, Utah. The vast majority of public comment 
favored the project. During the Price public meeting, the 
personal attitudes of two BLM Price office field experts came 
out once again. About half way through the meeting, following 
several comments favorable to our proposed development, the two 
stormed out of the meeting. They seemed to be outraged at the 
situation.

Revisions Following Public Comment

    The public comment period ended on January 2, 1997. Based 
on public and governmental comment, a new alternative was 
proposed by BLM in consultation with Utah DWR. The concept of 
protecting deer and elk Security Areas was discarded in favor 
of a new concept: protecting drainage corridors, which were now 
believed to be even more important than the Security Areas, and 
requiring other significant mitigation for the benefit of deer 
and elk. The new alternative called for us to cancel plans to 
develop over 8,000 acres of leases we had purchased from BLM 
and the State of Utah in critical elk habitat (without 
compensation), agree not to conduct drilling or construction 
operations during the winter on critical and high value big 
game winter range (regardless of property ownership or lease 
rights), pay $1,250 per Federal well drilled on critical big 
game winter range into a mitigation fund, and agree to special 
site location standards within drainage corridors which BLM and 
DWR had developed (potentially requiring well location contrary 
to BLM regulation). Individuals inside the BLM used the words 
extortion and blackmail, perhaps jokingly, to describe the 
situation.
    It is interesting to see how NEPA, in some situations, has 
replaced formal rulemaking under the Administrative Procedure 
Act. We were involved while the concessions were being 
developed, and we protested to some. But at that point, we had 
spent so much on the EIS, we were processing huge consultant 
bills each month, we saw the value of our initial investment in 
the field dwindling simply as a function of time, and we still 
had no idea when the process might end. We were in no position 
to raise legal arguments that would further delay the process. 
Again, timely oversight by an objective third party with 
authority would have helped.
    We agreed to the concessions and the process began again. 
Information was gathered on the new alternative and a new 
impacts analysis was prepared. BLM field experts in Price 
called for a new draft to be issued for public comment, 
suggesting the new alternative would trigger a supplemental 
draft EIS. As with similar suggestions, this caused us to spend 
considerable time, energy and expense countering it. The law, 
regulations and CEQ guidance was clear on the matter. But it 
was difficult determining who we needed to convince. No 
procedure was in place. We had long since learned that arguing 
with the Price office would be a waste of time. While the EIS 
team leader wanted to do the right thing, he was without 
authority to render a final decision. We went to the BLM State 
office, which intervened.
    Had the Price office succeeded once again in its delay 
tactics, the EIS may be ongoing yet today. Fortunately, the 
Final EIS was issued and the Record of Decision was signed in 
May, 1997.
Appeal

    In spite of our concessions to protect deer and elk, the 
ROD was appealed by an individual living over 100 miles away in 
Moab, Utah, citing concerns about potential impacts to deer and 
elk. The IBLA denied his request for stay, so we are able to 
move forward while the appeal is pending.

Post-EIS

    Although it was closely involved throughout the EIS 
process, over the months following execution of the ROD, Utah 
DWR expressed concerns that BLM did not require us to pay the 
same mitigation fee, $1,250 per well, for wells on high value 
winter range. Meetings with BLM and the State ended without 
resolving the matter to the DWR's satisfaction. After we 
refused to pay the additional moneys for high value winter 
range, the BLM wildlife biologist guaranteed me that our 
permits would be appealed as a result of our refusal.
    During the same timeframe, I heard comments through the 
grape vine that BLM agents from Price had said comments to the 
effect of ``They may have made it through the EIS, but wait 
till you see how long its takes to get permits approved.''
    Over 9 months have elapsed since the ROD was signed. As of 
today, March 11, 1998, we still have not received a single 
authorization to conduct work on BLM land. We have submitted 
approximately 54 Applications for Permit to Drill, and 
approximately 5 right-of-way applications.
    Delays since the EIS have not all been caused by the BLM, 
we have also been at fault. We have been learning the Federal 
permitting process, we have had errors on some reports 
submitted to BLM and have had other problems. We definitely 
share some of the blame.
    A portion of the blame also lies with BLM. The same 
individuals who indicated they would block our development and 
who almost made believers out of us, are now working on the 
permitting process. The ROD was a bitter pill for them to 
swallow. Their dwindling opposition combined with their 
inexperience with the oil and gas permitting process had 
contributed to the delays. I hope we are getting on the right 
track.

Contrast with other BLM Offices

    In contrast with the EIS experience described above, our 
experience with the Rock Springs BLM offices is very 
encouraging. During very preliminary discussions that could 
lead to the NEPA process; resource specialists from every 
discipline attended meetings, acted professionally, offered 
input on what we should do to make the process go smoother, and 
generally tried to be helpful. I believe the NEPA process will 
be very different while working with the Rock Springs office. 
Where the right people are involved, the current system works 
well. But forcing companies to play Russian roulette is 
unacceptable.

Suggestions

    1. Only Minor Changes. We are all stewards of the 
environment, oil and gas companies included. It is my 
experience that industry wants to do the right thing. When used 
properly, NEPA is a valuable planning tool. We should be 
careful not to overreact based on situation such as ours.
    2. Oversight. The NEPA can be very fluid. It is critical to 
gain control of the process before it begins and to maintain 
tight control throughout the process. By allowing discretion 
for field-level agency experts to make decisions on a case-by-
case basis, decisions may be unduly influenced by personal 
agendas. Timely objective oversight to agency discretion is 
necessary throughout the process and at the end of each 
critical step to ensure accountability. The oversight could be 
through the legislative body, reimbursed by income derived from 
the project.
    3. Reimbursement. Agencies rely heavily on the third party 
process, meaning companies must pay the NEPA bill. Everyone 
benefits from the process: the public at large is ensured of 
environmentally conscious decisionmaking, agencies acquire 
additional information to assist their to efforts to do their 
job, and the project proponent can go forward in a prudent 
fashion. If the project is successful and the taxpayers benefit 
from Federal royalties, the project proponent should be 
reimbursed for the NEPA expense.
    4. Maximum Time Limits. The process currently has minimum 
timeframes; ie, no decision can be made until a certain number 
of days has passed. There are no maximum timeframes. 
Particularly where government officials act like environmental 
groups opposing a project, maximum timeframes are essential. 
For example, the statute could be revised to state public 
scoping must last at least 30 days, and comments received after 
the 30th day will not be considered. It would also help to 
state that no EIS would take longer than 18 months to complete. 
In the event it is not completed on time, the proposed action 
would be deemed approved.
    5. Follow-up Analysis. Many assumptions are made during 
impacts analysis. Seldom are follow-up studies performed to 
determine whether the projected impacts actually occur as 
predicted. Sometimes assumptions are made simply because they 
have been used as a basis for previous EIS analysis. For all 
the time and expense that is going into NEPA processes, we are 
not learning enough. Follow-up studies should be performed, 
again through dedicated accounts set up from Federal income 
generated through the project.
    6. Restrict Governmental Comment to Agencies Involved. 
Governmental agencies that are not actively involved in the EIS 
process should be precluded from commenting on the EIS. 
Comments signed by governmental officials carry a great deal of 
weight and create stronger impressions than those signed by 
average citizens. Where governmental comments are negative, the 
taint can be very damaging. They must be involved to be fully 
up to speed on a situation, which is essential to submitting 
quality comments. It is much easier to sit back and criticize 
than it is to get involved and structure workable solutions. 
EPA was not involved in our EIS, but it submitted a comment 
letter anyway. The comment read as if it had been prepared by 
an environmental group, and it included issues beyond EPA's 
area of expertise. This type of activism must stop.
    7. Prevent Automatic Stay Pending Appeal. We are concerned 
that DOI, IBLA or BLM may approve an automatic stay provision 
in its appeal procedure, as currently proposed by IBLA. If this 
is approved, we would still be delayed as if the EIS were never 
completed. Anyone with 32 cents could block development 
indefinitely without showing first that they were likely to 
succeed on the merits of the appeal. It may be appropriate to 
stop such efforts through legislation.
    8. Increase Budget. Part of the problems we have seen are 
the result of having too few people with too little time to 
work on projects like our EIS. Budget increases may help, 
particularly where the funds are dedicated for problem areas.
                                ------                                


 Statement of Dan Chu, Wyoming Wildlife Federation, Executive Director

    Good Afternoon, Chairman and members of the House Resource 
Committee, my name is Dan Chu and I am the Executive Director 
for the Wyoming Wildlife Federation (WWF). WWF is a non profit 
conservation organization composed of over 3000 members who are 
united by a deep commitment to the protection of wildlife 
habitat, the perpetuation of quality hunting and fishing, and 
the protection of their right to use and enjoy public lands. 
Today, I will provide our perspective on the function and 
effectiveness of the National Environmental Policy Act (NEPA). 
NEPA was established in 1970 to guide Federal agencies in their 
efforts to manage for sustainable development and to allow the 
public to be involved in the management of their lands and 
resources. Our members directly benefit from NEPA because it 
provides a forum for local people and local interests to be 
considered in Federal actions on public lands. WWF educates and 
mobilizes citizens to be involved in decisions that affect 
their public land throughout Wyoming. We view NEPA as providing 
Federal agencies a formal process for responding to the public 
and determining if an action is truly in the public's interest.
    Specifically, the central mandate of NEPA is ``The Congress 
. . . declares that it is the continuing policy of the Federal 
Government, in cooperation with state and local governments, 
and other concerned public and private organizations, to use 
all practicable means and measures, including financial and 
technical assistance . . . to create and maintain conditions 
under which man and nature can exist in productive harmony, and 
fulfill the social, economic, and other requirements of present 
and future generations of Americans.''
    WWF believes that the purposes of NEPA is to establish the 
policy that all Federal agencies must:
      (1) Be responsible to future generations
      (2) Provide environmental equity for all Americans
      (3) Allow for the beneficial use of the environment 
without undue degradation
      (4) Encourage historical, cultural, and biological 
diversity, and individual liberty
      (5) Promote widespread prosperity for all Americans
      (6) Manage for the conservation and prudent use of our 
natural resources
      (7) Consider and incorporate public comments and 
interests
    NEPA does not have decision-making authority; rather its 
function is to provide a framework for disclosure and sound 
planning. NEPA requires that Federal agencies provide the 
public with full and adequate disclosure of impacts and effects 
of development. Such effects include ecological, aesthetic, 
historic, cultural, economic or health. To determine the true 
impacts of development an adequate cumulative impacts analysis 
must be conducted. Ultimately, a good cumulative impacts 
analysis can ensure; the orderly development of our public 
natural resources in a way that is compatible with other 
resource users under a multiple use management mandate.
    Although we believe that the NEPA is an example of great 
foresight and responsibility from Congress in 1970, we also 
feel that the implementation of this Act can be improved and 
streamlined. In fact, the topic of improving and streamlining 
the implementation of NEPA was a major topic of discussion for 
the Green River Basin Advisory Committee (GRBAC).
    In 1996-97, I served as a member of this Federal Advisory 
Council. In response to a growing number of concerns and 
appeals surrounding the cumulative impacts from proposed oil 
and gas development on Federal public lands in Wyoming and 
Colorado, both oil and gas companies and environmental 
organizations asked Secretary of the Interior, Bruce Babbitt to 
initiate a formal process to help resolve conflicts. Secretary 
Babbitt formed the Green River Basin Advisory Committee (GRBAC) 
in February 1996 under the Federal Advisory Council Act. The 
GRBAC was given a one-year charter to ensure the reasonable 
development of natural gas and oil while protecting 
environmental and other resource values on public lands in 
Southwest Wyoming and Northwest Colorado. Secretary Babbitt, in 
cooperation with the states, selected 16 members from the oil 
and gas industry, conservation groups, State Game and Fish, 
county commissioners, and state government officials. The GRBAC 
was a consensus group and any recommendations forwarded to the 
Secretary received the wholehearted support of ALL of the GRBAC 
members. This was truly a remarkable effort in true consensus 
building, bringing together a wide variety of interests and 
people to reach agreement on those actions that the Department 
of Interior could take to resolve existing resource conflicts 
on our public lands.
    One of the issues we agreed to discuss was the use of the 
National Environmental Policy Act (NEPA). After much discussion 
we reached consensus on some recommendations we felt could 
improve the implementation of NEPA in the process of oil and 
gas development.
    I would like to briefly point out some of the 
recommendations the GRBAC reached full consensus on. For more 
detail, please refer to the GRBAC's Final Report to the 
Secretary of the Interior, February 3, 1997 NEPA Streamlining 
Recommendations.
    One of the common issues of concern we discussed was the 
lack of interagency coordination in the NEPA process. We 
recommended ``improving coordination and communication among 
project proponents, affected agencies and stakeholders to 
reduce adverse comments and time required.'' Specifically we 
all saw a need for Federal agencies to improve interagency 
coordination prior to and during the NEPA process. We all felt 
that there have been too many instances where one particular 
development project has resulted in two or more NEPA documents 
initiated by different Federal agencies. Such a lack of 
coordination results in unnecessary delays and an inadequate 
cumulative impacts analysis.
    One complaint we hear from industry is that the NEPA 
process results in significant delays. Many of these delays 
result from a lack of accurate field data detailing the status 
of existing wildlife and plant communities. We also recognized 
that industry and environmentalists alike are frustrated with 
the incompatibility of various Federal agency data bases, often 
precluding the sharing of key biological data.
    Another GRBAC consensus recommendation addressed how to 
improve the format and content of the NEPA document while 
reducing its size. One way is to ``eliminate duplication in 
data requirements as well as consolidating and accessing 
existing data bases.'' To this end, WWF recommends that 
Congress provide additional funding to Federal agencies with 
the purpose of consolidating various data bases to provide 
accurate and comprehensive biological data bases.
    ``lmpact Analysis should be based on scientific and 
realistic Impact assessment, not speculations. This GRBAC 
recommendation states that a common need of industry, 
environmentalists and management agencies is that of having a 
reliable and complete biological data base. Whereas industry 
strongly believes that it is not their responsibility to 
collect baseline data, Federal agencies have a legal and moral 
responsibility to the public to conduct a cumulative effect 
analysis and minimize impacts of the proposed development on 
other users and resources. We believe the fundamental problem 
resides in the inadequate funding of data collection and 
habitat protection by Congress. For this reason, WWF supports 
the Teaming With Wildlife Initiative (TWW). We believe that TWW 
could bring sorely needed funds to state Game and Fish agencies 
to conduct surveys and compile the necessary information needed 
in many NEPA documents. Such work would help fill important 
baseline data gaps as well as enhance wildlife habitat on 
public lands. Additionally, such preventative monitoring and 
mitigation could decrease NEPA documentation time and minimize 
future impacts from development.
    In conclusion, WWF applauds the great foresight and wisdom 
of Congress when they established the National Environmental 
Policy Act in 1970. Consolidating Federal agency data bases, 
improving interagency coordination, investing in filling 
crucial biological and cultural data gaps, and facilitating 
early communication between all resource user interest groups 
can enhance the implementation of NEPA.
    Thank you for this opportunity to comment.
                                ------                                


Statement of Lynton K. Caldwell, Professor of Public and Environmental 
    Affairs, Indiana University and Staff Consultant to the Senate 
Committee on Interior and Insular Affairs on a National Policy for the 
                         Environment, 1968-1970

    Few statutes of the United States are intrinsically more 
important and less understood than is the National 
Environmental Policy Act of 1969. This comprehensive 
legislation, the first of its kind to be adopted by any 
national government, and now widely emulated throughout the 
world, has achieved notable results, yet its basic intent has 
yet to be fully achieved. Its purpose and declared principles 
have not yet been thoroughly internalized in the assumptions 
and practices of American government. Nevertheless there 
appears to be a growing consensus among the American people 
that environmental quality is an enduring public value, and 
that development of the economy does not require a trade-off 
between environmental quality and economic well-being. 
Voluntary compliance with NEPA principles may one day become 
standard policy and procedure for government and business; but 
meanwhile it is in the interest of the Congress and the Nation 
to understand the historical developments that led to NEPA and 
the subsequent course of its implementation.
    The legislative history of NEPA and the policy concepts it 
declares are more extensive and accessible than some of its 
critics recognize. Treating NEPA as if it were a special 
application of the Administrative Procedures Act of 1946 
misreads its principal purpose and misdirects criticism. NEPA 
declares public values and directs policy; but it is not 
``regulatory'' in the ordinary sense. A decade of thought, 
advocacy, and negotiation in and out of Congress preceded the 
legislation of 1969. Dissatisfaction with NEPA and its 
implementing institution--the Council on Environmental 
Quality--should not be directed against this innovative and 
well-considered statute, but rather toward failure to 
understand its purpose, to reinforce its administration, or to 
support its intent.
    Through the judicially enforceable process of impact 
analysis, NEPA has significantly modified the environmental 
behavior of Federal agencies, and indirectly of State and local 
governments and private undertakings. Relative to many other 
statutory policies NEPA must be accounted an important success. 
But implementation of the substantive principles of national 
policy declared in NEPA requires a degree of political will, 
not yet evident in the Congress or the White House. That the 
American people clearly supports the purpose of NEPA is evident 
in repeated polls of public opinion. But implementation of NEPA 
has not been audibly demanded by a public at-large which has 
received little help in understanding what must be done to 
achieve objectives of which they approve.
    Three decades since 1969 is a very short time for a new 
aspect of public policy--the environment--to attain the 
importance and priority accorded such century-old concerns as 
taxation, defense, education, civil liberties, and the economy. 
The goals declared in NEPA are as valid today as they were in 
1969. Indeed perhaps more so as the Earth and its biosphere are 
stressed by human demands to a degree that has no precedent. 
(Note the 1993 World Scientists Warning to Humanity) But 
``environment'' in its full dimensions is not easily 
comprehended. Human perceptions are culturally and physically 
limited, but science has been extending environmental horizons 
from the cosmic to the microcosmic. Even so, the word 
``environment'' does not yet carry to most people the scope, 
complexity, or dynamic of its true dimensions.
    If NEPA continues to be interpreted narrowly and 
exclusively by the courts, more compelling legislation may be 
required. A statutory or constitutional amendment may be 
necessary to give its substantive intent, operational legal 
status. Some defenders of NEPA fear that opening the statute to 
textual amendment might result in its being weakened as, for 
example, through statutory exclusions limiting class action 
suits based on NEPA, or in limiting its applicability to 
Federal action having an environmental impact beyond U.S. 
territorial limits. Its text unchanged, NEPA has already in 
effect been amended to exclude its application to major 
environment-affecting projects popular with the Congress, (e.g. 
the Alaska oil pipeline). As of 1997 the U.S. Code listed at 
least 28 exceptions to the application of NEPA. Some were for 
clarification, however, and did not significantly affect the 
substance of the Act. An amendment to the United States 
Constitution could strengthen the applicability of NEPA's 
substantive provisions to judicial review and executive 
implementation. At present this possibility appears to lack 
feasibility, but merits consideration as a future option. 
Meanwhile, for the NEPA intent to be more fully achieved two 
developments will be necessary:

    First is greatly increased popular comprehension of the 
purpose and principles of environmental policy as expressed in 
NEPA--especially by conservation and environmental groups, 
civic organizations, religious denominations, and by political 
parties at the grass roots, along with recognition--now 
beginning to appear in the world of business--that economic and 
environmental objectives need not be incompatible. NEPA 
principles, if rationally applied, would help sustain the 
future health of both the economy and the environment.
    Second is appreciation by the Congress, the executive 
branch, the courts, and the news media of the political 
responsibilities and institutional arrangements necessary to 
fulfill the NEPA mandate. More visible commitments in the White 
House and at the top policy levels of the Federal agencies, and 
especially in the Congress are needed. As long as candidates 
for Federal office are dependent on financing from sources 
whose purposes could result in destructive exploitation of the 
environment, support for NEPA in the Congress and the White 
House is unlikely to be no more than symbolic, and seldom 
invoked.
    NEPA, however, contains means to achieve its purpose. 
Institutional arrangements for coordination of policies for 
natural resources and, by implication, the environment, 
underwent extensive consultations for at least a decade 
preceding NEPA, within and between both houses of Congress, 
with the Federal agencies, and with non-governmental 
representatives of public interests. NEPA incorporated most of 
the provisions upon which general agreement had been reached.

Declaration of National Policy

    The most important and least appreciated provision of NEPA 
is the congressional declaration of national policy under Title 
I, Section 101:

        that it is the continuing policy of the Federal Government, in 
        cooperation with State and local governments, and other 
        concerned public and private organizations, to use all 
        practicable means and measures, including financial and 
        technical assistance, in a manner calculated to foster and 
        promote the general welfare, to create and maintain conditions 
        under which man and nature can exist in productive harmony, and 
        fulfill the social, economic, and other requirements of present 
        and future generations of Americans.
    Seven specific aspects of policy are enumerated, and while 
necessarily stated in general terms, they are hardly vague in purpose. 
Section 101b states that:

        in order to carry out the policy set forth in this Act, it is 
        the continuing responsibility of the Federal Government to use 
        all practicable means, consistent with other essential 
        considerations of national policy, to improve and coordinate 
        Federal plans, functions, programs, and resources to the end 
        that the Nation may
        (1) fulfill the responsibilities of each generation as trustee 
        of the environment for succeeding generations;
        (2) assure for all Americans safe, healthful, productive, and 
        aesthetically and culturally pleasing surroundings;
        (3) attain the widest range of beneficial uses of the 
        environment without degradation, risk to health or safety, or 
        other undesirable and unintended consequences;
        (4) preserve important historic, cultural, and natural aspects 
        of our national heritage, and maintain, wherever possible, an 
        environment which supports diversity, and variety of individual 
        choice;
        (5) achieve a balance between population and resource use which 
        will permit high standards of living and a wide sharing of 
        life's amenities; and
        (6) enhance the quality of renewable resources and approach the 
        maximum attainable recycling of depletable resources.
    In addition the Congress recognized that ``each person should enjoy 
a healthful environment and that each person has a responsibility to 
contribute to the preservation and enhancement of the environment.''
    The declaration clearly implies that economic and environmental 
values are or should be compatible. A key to understanding NEPA may be 
found in the phrase ``. . . to create and maintain conditions under 
which man and nature can exist in productive harmony, and fulfill the 
social, economic, and other requirements of present and future 
generations of Americans.'' This statement has often been interpreted 
to require a balancing of equities, primarily economic and 
environmental. But the intent of NEPA would not be achieved by off-
setting (but still retaining) an economic ``bad'' with an environmental 
``good,'' as mitigation measures may attempt. More consistent with the 
spirit of the Act would be a synthesis in which ``productive harmony'' 
is attained and transgenerational equity is protected.
    Beneath the language of the Declaration there are fundamental 
questions of jurisprudence and constitutional responsibility that, 
bearing upon the implementation of NEPA, have not generally been 
addressed Does the Declaration establish a policy by law? If the 
statute, in fact, is a declaration of law as well as policy what then 
are the responsibilities of the President under Article II of the 
Constitution that ``he shall take care that the laws be faithfully 
executed''? And what are the responsibilities of the Congress to see 
that a policy declared by a Congress and not repealed, is not sabotaged 
or neglected in the Executive branch or by its own committees?
    Critics of NEPA have found its substantive provisions 
nonjusticiable, and by implication not positive law. The courts have 
refrained generally from overturning administrative decisions that 
could be interpreted as incompatible with the substantive provisions of 
NEPA. However, in the case of Calvert Cliffs Coordinating Committee v. 
Atomic Energy Commission, Judge Skelly Wright of the U.S. Circuit Court 
of Appeals of the District of Columbia declared that:
        The reviewing courts probably cannot reverse a substantive 
        decision on its merits, under Section 101, unless it can be 
        shown that the actual balance of costs and benefits that was 
        struck was arbitrary or clearly gave insufficient weight to 
        environmental values. But if the decision was reached 
        procedurally without individualized consideration and balancing 
        of environmental factors, conducted fully and in good faith, it 
        is the responsibility of the courts to reverse.
    The generally recessive posture of the courts on the policy 
provisions of NEPA contrasts markedly with their activist policymaking 
in constitutional civil and property rights cases. In these cases 
Federal judges have not hesitated to assert sweeping jurisdiction over 
all levels of government in which official action or inaction was found 
to be at variance with judicial opinion. A plausible explanation for 
this contrast is the absence of any direct provision in the 
Constitution of the United States for environmental protection, in 
contrast to explicit provisions for property rights and civil rights in 
the Fifth and Fourteenth Amendments. Where the Congress has mandated or 
prohibited specific actions affecting air and water pollution or 
endangered species, and provided penalties for violations, the courts 
have reviewed and enforced if no infringement of constitutional rights 
is found. Presumably they would do so for any of NEPA's substantive 
policy mandates for which Congress provided specific procedures and 
penalties not subject to judicial reversal as contrary to the 
Constitution.
    An environmental protection amendment to the Constitution might 
enable the courts to clarify equities and diminish uncertainties 
between private rights and public interests in the environment. It 
could reduce litigation in environmental affairs and might prevent some 
arbitrary and unpredictable policymaking on environmental issues by the 
Federal courts. Section 101 of NEPA establishes the principles and 
goals of environmental policy and is, in essence, a declaration of 
values. It is difficult to adjudicate values, but legislation 
implementing principles expressed in NEPA and applied to specific 
tangible policies has been reviewed and upheld in the courts. The 
Historic Preservation Act (Public Law 89-665, Oct. 15, 1966) and the 
Endangered Species Act (Public Law 93-205, Dec. 28, 1973) are examples. 
Substantive mandates in these and other environmental statutes are or 
could be reinforced by the substantive and procedural provisions of 
NEPA.
    Beyond the judiciary there is another recourse to enforcement of 
the principles of NEPA--in the constitutional obligation of the 
President ``to take care that the laws be faithfully executed.'' The 
President rarely needs a court opinion to use residual executive power 
to apply the law; the presidency possesses broad executive discretion 
over implementation of the laws by the Federal agencies. A President 
whose priorities coincided with NEPA's principles, absent blocking in 
the Congress or the courts, could by executive action go a long way 
toward fulfilling the NEPA mandates.

The Case For a National Policy

    From the viewpoint of historical constitutional conservatism, 
environment in the broad sense was not a comprehensible subject for 
public policy--at least for national policy. Strict constitutional 
constructionist Thomas Jefferson did not even believe that highway 
construction was an appropriate function of the Federal Government. For 
environmental nuisances, such as air or water pollution, common law 
remedies were available under state police powers, and prior to the 
1960's were widely regarded as local issues.
    Emergence of environment as a public and national issue followed 
from profound changes in the population and economy of the United 
States in the course of the 20th century. These changes were 
accompanied by unprecedented growth of scientific knowledge and 
technology. Progress of this new industrial society increasingly 
encountered and created environmental problems which neither local 
government or the market economy could cope. Quality of life values in 
health, amenities, and opportunities were being lost or threatened and 
the causes transcended artificial political jurisdictions.
    Only the Federal Government had the geographic scope and 
institutional structure able to deal with the growing array of 
interrelating problems now called ``environmental.'' These problems of 
air, water, resource conservation and the biosphere were soon seen to 
be transnational, but national government was the only available 
institution sufficiently inclusive and authoritative to deal with them. 
International cooperation depended upon the ability and willingness of 
national governments to address common regional and global 
environmental problems and so by the mid 20th century, environment 
began to emerge as a new focus for public policy.
    Broad statements of policy and principle that are not perceived to 
affect personal interests or property rights seldom arouse much public 
concern or response. Issues that do elicit popular concern almost 
always affect the present and personal advantages or apprehensions of 
people. Attitudes relating to the environment in modern American 
society have been largely issue-specific and subjective, as in the 
NIMBY (Not in My Back Yard) syndrome. But effective response to 
circumstances in the larger societal and biospheric environments 
necessarily must be collective, with whole communities or an organized 
``critical mass'' of the society activated. Stratospheric ozone 
depletion, global climate change or tropical deforestation are hardly 
neighborhood or personal issues which people might feel that their 
actions could influence. And while non-governmental organizations may 
help in many ways to assist environmental protection, the ultimate 
agent of public interests affecting all of the United States is the 
Federal Government. State and county boundaries are environmentally 
artificial, corresponding neither to ecosystems nor bioregions, and 
seldom to economic activities that are increasingly interstate, 
nationwide, and transnational in scope.
    NEPA, supplementing the legislative powers of the Federal 
Government over interstate commerce, navigable waters, and public 
lands, creates an obligation to apply its provisions where relevant. 
Thus applications for Federal permits, licenses, purchases, 
concessions, and grants may require the preparation of environmental 
impact assessments required by NEPA. For other environmental impacting 
policies the President, through Executive Orders, may instruct the 
agencies in the performance of their functions, as President Carter did 
in giving legal status to the NEPA Regulations of the CEQ, (EO11991, 24 
May 1977) and, paralleling NEPA in Federal activities abroad, in 
EO12114, 4 January 1979.

Conclusion

    NEPA is potentially a powerful statute, well integrated, internally 
consistent, and flexible, even though not entirely clear on some points 
of law which have nevertheless been clarified by interpretation, as in 
the Regulations issued by the CEQ under Executive Order 11991 of 1977. 
That it has made a significant difference in the United States and has 
influenced governments abroad is hardly debatable. NEPA was not a 
sudden inspiration, nor was it put over on an unsuspecting Congress and 
the public by an environmental lobby. Its purpose was never the writing 
of impact statements; but this action-forcing procedure has been a 
great inducement to ecological rationality in Federal actions which 
traditionally had largely ignored environmental consequences.
    No technical fix nor administrative reorganization will achieve the 
NEPA intent. To implement NEPA as intended requires a president 
committed to its objectives and using his appointive, budgetary and 
leadership powers to this end. It requires a judiciary that recognizes 
the legislative history and substantive intent of the statute and does 
not defeat the purpose of successive Congresses through narrow 
legalistic interpretations. It requires from Members of the Congress 
recognition of the legislative history and intent of NEPA and of the 
efforts of successive Congresses since 1959 to respond to concerns of 
the American people for a sustainable and harmonious environmental 
future.
    Legislative priorities may change with voting majorities (even by 
one vote) in successive Congresses. But the printed record of the 
history of NEPA should make clear the intentions of its architects in 
the 91st and preceding Congresses. Nevertheless many critics of NEPA 
appear to have interpreted it from subjective premises without inquiry 
into the legislative history of the Act or into the assumptions and 
expectations of the persons responsible for its language and content. 
These critics have missed the implications of NEPA's broad and basic 
principles and goals. It sets an agenda to be implemented through 
legislative and administrative action. From one perspective NEPA may be 
seen as the capstone of national environmental policy; more importantly 
it should be viewed as a foundation for the future.
                                 ______
                                 

 Statement of Lillian C. Borrone, Director, Port Commerce Department, 
              The Port Authority of New York & New Jersey

    Dear Congressmen Saxton and Pallone:
    The occasion of the House Resources Committee hearing on 
matters pertaining to the National Environmental Policy Act 
prompts me to share some thoughts on Federal management of 
environmental policy as it regards dredging activities in the 
Port of New York-New Jersey. As you know the Port was in crisis 
through the first 6 years of the 1990's. Ships had trouble 
entering marine terminal areas; cargo was lost to the 
competition in Canada. However, the tide has changed. The Port 
community became energized as did the New Jersey and New York 
congressional delegations. And initiatives were taken by the 
Governors of New York and New Jersey and the Clinton 
Administration, especially with respect to coordination among 
the Federal regulatory agencies.
    The Port of New York-New Jersey is the largest on the East 
Coast of the American continent, an international gateway of 
national economic significance and a major economic engine for 
the States of New York and New Jersey. The Port is dependent on 
channel, berth and anchorage dredging to maintain adequate 
depths for the many thousands of ships that call each year. 
Approximately 4 million cubic yards of sand and mud are dredged 
annually. In addition ours is a region with superb, coastal 
natural resources that are on display in your congressional 
districts and in the Port itself. Perhaps not surprisingly the 
region has been witness to especially vigorous environmental 
regulation--and litigation--of water-based activities including 
navigational dredging. That intense interest is prompted in 
part by sediment contamination that is the result of upstream 
sources of pollution and the region's industrial heritage. It 
raised legitimate questions within government and attracted 
well-intentioned--sometimes constructive--critics of dredging 
practices. All those ingredients combined to produce a crisis 
of the like the Port had not seen in my memory. For the 
purposes of this letter I would like to focus on the Federal 
regulatory function, complicated as it was by sediment 
contamination.
    The Army Corps of Engineers is the Federal Government's 
permitting agency for dredging activities. However the natural 
resource agencies--EPA, NOAA's National Marine Fisheries 
Service and Interior's Fish & Wildlife Service--also play 
influential parts. When the Federal process was not functioning 
well often times the agencies were conducting their respective 
roles less in ways that facilitated decision-making and more as 
gatekeepers. Each had their own demands and seemed to have 
little regard for the passing of time and the practical 
implications of regulatory delay on the Port. Typically 
cautious and methodical in the perfommance of their duties, 
they became especially so with the knowable that some 
environmental orations were prepared to litigate.
    The Port's only sediment disposal location at that time was 
the EPA-regulated ocean Mud Dump site. As a result, there were 
no available alternative disposal areas and sediments were 
subjected to the most rigorous testing requirements under the 
law. Revised and tougher Federal testing protocols were put in 
place at the beginning of the decade and certain of those were 
never fully accepted in the Port community as scientifically 
supportable. The presence of dioxin and other contaminants in 
sediments, especially in the busiest part of the Port where 
channels and berths were overdue for dredging, produced 
frustrating and not always clear results on which the 
regulators were to base their decisions. A nearly three-year 
period of regulatory indecision and, eventually, litigation is 
documented in the attached. Ultimately, the Federal and state 
permitting agencies and the court allowed dredging to go 
forward, notwithstanding a lawsuit, the effects of which are 
still felt today. And while the permit was issued and the 
channel was dredged in the summer of 1993 Federal permit 
problems persisted. Challenges to dredging activities in New 
York Harbor continued to stymie Federal channel dredging well 
into 1996.
    The positive news out of all of this is that steps were 
taken to address the various problems in the States and in 
Washington, particularly with respect to Federal regulation. 
There were two developments of special note regarding the 
latter. I will touch briefly on the first and then for the 
purposes of your Committee hearing focus on the second, 
involving the work of the Council on Environmental Quality 
under NEPA.
    Importantly, dredging came to be understood as a 
transportation matter with some attendant environmental issues, 
and not vice versa. In 1993, then Transportation Secretary 
Federico Pena recognized that major channel dredging projects 
were at risk and convened the Interagency Working Group on the 
Dredging Process whose members were the regulatory agencies and 
the Maritime Administration. Late in 1994, its report, The 
Dredging Process in the US: An Action Plan for Improvement, was 
issued and later forwarded to the White House. It included 
recommendations that focused on ways the permit process could 
be expedited through greater cooperation among the regulatory 
agencies. Today, the Corps of Engineers and EPA co-chair the 
National Dredging Team that, along with Regional Dredging Teams 
in ports around the country, is working to improve the way the 
dredging permit process is implemented.
    A second and significant step to improve regulatory 
decision-making and overcome major hurdles to dredging was the 
involvement of the Council on Environmental Quality. 
Administration officials came to understand that certain 
persistent issues caused great uncertainty in what should be 
predictable and routine dredging activities. It became apparent 
that the Port would continue to lose intermodal cargo and jobs 
to Canadian ports--at a rate of roughly 100,000 containers a 
year--if the Federal channels were not able to be dredged 
promptly. Already large ships that routinely made New York 
Harbor their first call in North America were diverted to 
Halifax to lighten their load of containers before sailing to 
our Port.
    After spending over a year consulting with many persons 
representing the States, the Port, marine terminal operators, 
labor, and environmental organizations, CEQ and the Federal 
agencies developed a strategy designed to address specific 
needs of the Port, including the dilemma over sediment 
disposal; the immediate need to clear Federal channels and 
berths of accumulated silts; and the long term question of the 
future of the Port channel structure. On July 24, 1996 Vice 
President Gore announced a three-pronged strategy as outlined 
in a letter to members of the Port's congressional delegation. 
It was a strategy, the components of which were not pleasing to 
all interests, that served to get the Port past seemingly 
intractable issues.
    First, in coordination with the States, the controversial 
ocean disposal site--the Mud Dump--was to be closed in 
September of the following year to all but Category 1 sediments 
(the cleanest of 3 categories as determined through sediment 
testing). The nearly century-old site was to be capped. Second, 
prompt steps were to be taken to remove ``immediate obstacles 
to dredging the Port,'' with a focus on the permit process, and 
the Corps would accomplish maintenance dredging for ``10 high 
priority'' Federal channel projects by the end of 1997. Those 
were selected in cooperation with the States and the Port 
Authority. Third, the Corps would undertake an ``expedited'' 
feasibility study of alternatives for a 50-foot deep Port. In 
addition the Maritime Administration was to recommend any 
additional measures needed to ``enhance the international 
competitiveness'' of East Coast ports. Steps also were to be 
taken to address the quality of sediments in the Port. The 
letter, signed by the Secretary of the Army, the Secretary of 
Transportation, and the Administrator of EPA, is attached.
    Significantly, the White House and agencies did not simply 
declare victory and move on to another crisis in another part 
of the country. Implementation of the July 1996 strategy was 
carefully monitored and managed by CEQ, Corps and EPA 
headquarters staff. Not unexpectedly, problems with some 
permits and other issues did appear along the way. Those were 
managed with great diligence and conscientiousness and 
interested parties at all levels were consulted and heard. In 
our experience the coordination role played by CEQ as 
contemplated in NEPA was essential to our success by ensuring 
that conflicts and obstacles among agencies are addressed by 
the Executive Office of the President. As a result we were able 
to overcome years of gridlock--or mudlock--and move forward to 
protect the future of the Port.
    The Port is not out of the woods yet. We are working with 
the States of New York and New Jersey and the Corps of 
Engineers to implement a long term and economic dredged 
sediment disposal strategy. Sediment contamination in some 
parts of the Port continues to pose permitting and disposal 
issues. Meanwhile, essential dredging has occurred or is 
planned, construction should start on a major channel deepening 
project this September, and funding for the 50-foot feasibility 
study is on schedule. Such progress is made possible by long 
term commitments on the part of everyone involved. At the 
Federal level, the Council on Environmental Quality, Corps of 
Engineers, and EPA officials continue to show that commitment. 
And with the strong support of our Governors the Port's future 
looks much brighter than it did just a few years ago.
                                ------                                


    Statement of Carole Browner, Administrator, U.S. Environmental 
  Protection Agency, Federico F. Pena, Secretary, U.S. Department of 
Transportation and Togo D. West, Jr., Secretary, U.S. Department of the 
                                  Army

    Dear Congressman Pallone:
    Your leadership and support have been essential in 
advancing our shared goals of protecting the ocean environment, 
while ensuring the competitiveness of the Port of New York and 
New Jersey and the economic health of the region. We are 
writing to announce our commitment to several substantial new 
steps to provide additional Administration support for those 
goals. We believe the three-point plan outlined below 
demonstrates this Administration's commitment to the continued 
growth and vitality of the port, to protective regulation of 
ocean disposal, and to a stronger partnership with the states 
in protecting regional commerce and the marine environment.

1. We will close the Mud Dump Site by September 1, 1997

    After years of contention, this Administration is prepared 
to help resolve the controversy over disposal at the Mud Dump 
Site (MDS) off the New Jersey coast.
    Environmental, tourism, fishing, and other community groups 
have long contended that the MDS should be closed immediately. 
These views reflect the important environmental values that New 
Jersey's communities identify with their coastal environment. 
Community concerns have been heightened by the unhappy history 
of other environmental threats that these communities have had 
to endure--ranging from oil spills to the littering of 
shorelines with medical waste. This history warrants 
sensitivity to concerns about the MDS, including concerns about 
continued use of the site for so-called ``category 2'' 
material. When these concerns are coupled with the limited 
category 2 disposal capacity we expect the site to provide, we 
must conclude that long-term use of this site for disposal 
activity is not realistic.
    Accordingly, the Environmental Protection Agency (EPA) will 
immediately begin the administrative process for closure of the 
MDS by September 1, 1997. The proposed closure shall be 
finalized no later than that date. Post-closure use of the site 
would be limited, consistent with the management standards in 
40 C.F.R. Section 228.11(c). Simultaneous with closure of the 
MDS, the site and surrounding areas that have been used 
historically as disposal sites for contaminated material will 
be redesignated under 40 C.F.R. Section 228 as the Historic 
Area Remediation Site. This designation will include a proposal 
that the site be managed to reduce impacts at the site to 
acceptable levels (in accordance with 40 C.F.R. Section 
228.11(c)). The Historic Area Remediation Site will be 
remediated with uncontaminated dredged material (i.e. dredged 
material that meets current Category I standards and will not 
cause significant undesirable effects including through 
bioaccumulation). Our ongoing environmental assessment 
activities at the site will be modified to reflect these new 
commitments. We also will seek to reinforce this approach in 
appropriate legislation.
    Although we recognize that eventual closure of the MDS, 
followed by remediation, is appropriate, immediate closure 
could jeopardize the Port, which may need short-term use of the 
site to dispose of category 2 material. To strike the 
appropriate balance, use of the site for category 2 material 
will have to be supported with certifications by the permit 
applicant, and a finding by the Corps of Engineers that: 1) the 
affected states or ports were asked to provide alternative 
sites for disposal of the material identified by the permit, 
and that the states or ports failed to provide a reasonable 
alternative site; and 2) the disposal of category 2 material at 
the MDS will not increase the elevation at the MDS higher than 
65 feet below the surface. Any elevation limits will be 
designed to contain material within the current lateral limits 
of the MDS, and will be set based on scientific evidence.

2. We will help remove the immediate obstacles to dredging the 
Port

    The Port Authority of New York and New Jersey, terminal 
operators, shipping lines, and labor groups have identified 
numerous ways in which we can help expedite dredging in the 
Port. We have heard, and are responding to, their concerns.
    Making the MDS available for category 2 material for the 
next 12 months, and allowing the elevation at the site for 
category 2 material to increase, would remove the most 
immediate and major Federal obstacles to dredging. The 
designation of the Historic Area Remediation Site will assure 
long-term use of category 1 dredge material.
    Our outreach to the companies, longshoremen, harbor pilots, 
and others whose livelihood depends on the Port, has identified 
many additional steps our agencies can take to further 
facilitate adequate dredging in the Port. A major source of 
concern and potential cost for permit applicants has been 
uncertainty surrounding the testing that must support permit 
applications. Accordingly, by the end of August, EPA will 
finalize its proposal that tests of only two species, not 
three, will be required of permit applicants. EPA then will 
invest at least 9 months in a process for all affected groups--
industry, labor, and environmental groups--to help the Agency 
review the ocean disposal testing requirements and ensure that 
any further revision reflects both sound policy and sound 
science.
    The Corps of Engineers will expedite the processing of 
dredging permit applications and completion of its own dredging 
projects. The Corps will issue public notices for dredging 
permits within 15 days after a completed application is 
submitted, or will have requested any additional information 
necessary to make the application complete. Within 90 days, the 
Corps will either issue the permit, deny the permit, or commit 
in writing to a deadline for the permit decision. The Corps 
responsibility for the Federal channels will also be met with 
cooperation from the states and the funding requested by the 
President, the Corps will ensure maintenance dredging for 10 
high-priority Federal channel projects before the end of 1997.
    In addition, the Corps and EPA will accelerate their work 
with the affected state and local governments on a sound dredge 
material management plan, and complete the interim plan by 
August 30, 1996. This interim plan will identify any steps that 
are necessary to sustain dredging through 1997. The final plan 
will be completed by September, 1998.
    Most importantly, we expect that our commitments concerning 
the MDS will diminish or eliminate the possibility of 
litigation challenging permits and the EPA rule change during 
the period prior to September 1, 1997. This proposal is 
predicated on that result.

3. We will help ensure the health of the Port and the 
environment for the 21st Century

    The short-term efforts identified here cannot truly help 
the Port without effective long-term strategies to ensure that 
dredge material is managed properly. We recognize the 
significant efforts and commitments that New York and New 
Jersey have made with us to put those strategies in place. We 
will reinforce those efforts, so that long-term growth of the 
Port is sustained and sustainable.
    Recognizing that a vital Port should be able to accommodate 
the full range of world-class ships, the Corps will soon begin 
an expedited feasibility study of alternatives for a 50 foot 
deep Port, including recent legislative proposals on this 
issue. The Corps will seek Congressional authorization and take 
steps to reprogram funds to allow the study to begin in 1996, 
and the study will be designed for completion in 1999. 
Recognizing that dredging is not the only issue affecting the 
future of this and other Ports, the Department of 
Transportation is committed to a six-month study of the causes 
of cargo diversion from our East Coast ports. This study, which 
will be developed in consultation with other affected agencies, 
will recommend any additional measures that are needed to 
enhance the international competitiveness of our East Coast 
ports.
    Continued growth of the Port must be coupled with 
aggressive development of disposal alternatives and expanded 
efforts to reduce toxic pollution in the harbor. The 
Administration will continue to support legislation and 
appropriations to support cost-sharing of upland disposal 
alternatives. The Administration will also seek support for the 
range of continuing efforts to develop acceptable alternatives. 
For example, EPA is today announcing $1.2 million in contract 
awards to support development of decontamination technologies 
for dredge material. In addition, the Corps will immediately 
seek necessary authorization and funding to begin the technical 
design and feasibility studies needed for environmentally sound 
confined containment facilities, in anticipation that such 
facilities may be part of the final dredge material management 
plan. We also will pursue additional steps to reduce and 
address toxic pollution in the estuary. We will seek to 
minimize polluted runoff by funding and suporting local and 
region-wide watershed planning and implementation activities. 
By September 1996, EPA will invest $100,OOO to facilitate 
pollution reduction in the Arthur Kill. All of these efforts 
will be coordinated with the Harbor-Estuary Comprehensive 
Conservation and Management Plan, which is the blueprint for 
working cooperatively with state and local governments, 
businesses, and citizens to reduce toxic pollution in the 
watershed.
    We will be calling upon every member of the New Jersey and 
New York delegations, as well as the affected state and local 
governments, to continue our constructive and cooperative 
efforts to sustain port growth and environmental protection. We 
will also be submitting periodic reports to the President on 
our success in implementing this plan and on any continuing 
obstacles to harbor dredging.
    We appreciate your continuing leadership and advice as we 
work together to ensure a healthy economy and a healthy 
environment for the region.
                                ------                                


           Statement of Rocky Mountain Oil & Gas Association

INTRODUCTION

    The Rocky Mountain Oil & Gas Association (RMOGA) is a trade 
association representing hundreds of members, both large and 
small, who account for more than 90 percent of the oil and gas 
leasing, exploration, and development in an eight-state region 
in the Rocky Mountain West. Over 90 percent of the Federal 
lands lie in the western third of the United States. As such, 
most RMOGA states contain significant amounts of Federal 
acreage. Consequently, RMOGA's members routinely obtain Federal 
oil and gas leases and conduct exploration and development 
activities throughout these public lands. All of these actions 
are subject to compliance with NEPA.
    NEPA, enacted by Congress in 1969, is a procedural Act 
designed to ensure the Federal Government considers the 
environmental consequences of all major Federal actions prior 
to making decisions on whether certain activities will be 
allowed to proceed. The Act also directs that broad public 
involvement be an integral part of the analysis process. Upon 
passage of NEPA, the Council on Environmental Quality (CEQ) 
developed regulations for implementing the Act's procedural 
provisions. The CEQ regulations attempted to develop a 
reasonable approach to NEPA compliance and have been modified 
since their inception to take into account the need for 
streamlining the process to avoid unnecessary delays or 
analysis.
    However, while RMOGA firmly believes no statutory changes 
are needed to ``fix'' NEPA itself or its implementing 
regulations, there are many problems associated with the 
Federal agencies' interpretation of NEPA and implementation of 
CEQ's regulatory requirements. Moreover, even though land 
management agency manuals plainly recognize the intent of the 
law and regulations and have set forth procedures accordingly, 
actual NEPA compliance by these agencies often flagrantly 
ignores the intent of the law and regulations.
    For example, the CEQ regulations direct agencies to reduce 
paperwork by keeping the length of environmental impact 
statements (ElS's) short by preparing ``analytic rather than 
encyclopedic'' ElS's; limiting issue analysis to only 
significant issues, while briefly describing insignificant 
issues; and utilizing tiering, adoption or incorporation by 
reference of relevant documents to eliminate duplication and 
unnecessary analysis. Comparable direction is aimed at reducing 
delays by emphasizing interagency cooperation before beginning 
preparation of the EIS, recommending the establishment of time 
limits for EIS preparation, and utilizing categorical 
exclusions and ``findings of no significant impact'' when an 
action not otherwise excluded will not significantly effect the 
human environment. None of the Federal agencies adhere to these 
or other CEQ directions. As a result, the EIS process is overly 
long, complex, and extremely costly. In fact, it would appear 
the process is also used to delay proposed projects in the hope 
proponents will abandon their projects. An unfortunate outcome, 
due to excessive costs, delays, and uncertainty associated with 
NEPA, is that companies are reluctant to invest their capital 
in projects on public lands and end up avoiding Federal lands 
altogether, where possible.
    The first step in remedying this onerous situation is 
clear--require Federal land management agencies to immediately 
implement the NEPA Streamlining Recommendations developed by 
the Green River Basin Advisory Committee (GRBAC) in June 1996. 
GRBAC was convened by Interior Secretary Babbitt and was 
comprised of environmental, oil and gas industry, private land 
owners, state and local government representatives, as well as 
several ex-officio members from the BLM, Forest Service and 
DOE. One of GRBAC's self-appointed tasks was to assess the 
myriad problems associated with the NEPA process, the impetus 
being perceived conflicts between natural gas development in 
southwest Wyoming/northwest Colorado and wildlife concerns. As 
a result, the Committee identified many flaws in the current 
NEPA process and developed a set of specific recommendations 
aimed at solving the problems. The Committee's findings are 
relevant to all NEPA endeavors and the recommendations should 
be applied to all NEPA projects, whether they are at a site-
specific project or programmatic level, including Federal land 
use planning.
    Even though the Department of Interior committed to 
formally adopting these recommendations, no specific guidance 
or direction has been issued to BLM field offices. And, while 
BLM named a pilot project, the Jonah II project in Wyoming, to 
test the validity of the GRBAC recommendations, the project 
failed because the recommendations were not implemented by the 
Federal agencies involved in the project. As a solution to this 
dilemma, we urge the House Resources Committee to pass a 
resolution calling for DOI and DOA adoption of the GRBAC 
recommendations. We also recommend the Committee require an 
annual report from both BLM and the Forest Service showing 
progress made in streamlining their NEPA processes.
    Other specific issues and solutions RMOGA would like to 
emphasize are identified in the following discussions:

Revise Agency NEPA Procedures To Ensure Consistency With CEQ 
Regulations

    Over the past two decades, Federal land management agencies 
have become less effective as land managers due to litigation 
by preservation groups. For example, they have routinely 
elected to prepare full blown ElS's on projects which could 
have been sufficiently addressed by either a categorical 
exclusion from NEPA or an environmental assessment. This 
misguided attempt to prepare ``bulletproof'' documents has 
resulted in protracted delays due to inordinate analysis 
requirements and increased costs in the NEPA process. In 
addition, agencies are relying less on trained resource 
specialists to make everyday land use decisions. As mentioned 
previously in this statement, the CEQ regulations offer a 
variety of options for ensuring the NEPA process is effective 
but not excessive. The agencies should more clearly incorporate 
this direction into their own procedures and return land 
management to resource professionals.

Institute Federal Agency Accountability in the NEPA Process

    The greatest cause for delay and excessive costs associated 
with the NEPA process is the agencies' insatiable demand for 
new resource data, particularly when a project proponent is 
paying for the NEPA documentation in order to have it completed 
within a reasonable timeframe. NEPA requires that an 
environmental analysis include only the best available 
information and that if there is a lack of information it 
should be so stated in the EIS. However, agencies are 
compelling project proponents to pay for data collection which 
should have been collected as part of the land use planning 
process. Some field offices also appear to be analyzing 
speculative and extraneous alternatives to the proposed action 
which serves to further complicate the NEPA analysis and to 
delay projects in which millions of dollars have been invested 
by proponents.
    NEPA delays are not only harmful to the companies that have 
legally binding contractual agreements with the Federal 
Government to exercise their lease rights, they also result in 
delays in revenue going to the Federal, state and local 
treasuries. It is imperative for these onerous delays to be 
eliminated. In addition to requiring agency personnel to comply 
with CEQ regulations, we believe the best way to reduce costs 
and delays is to hold agency personnel accountable for using 
the most practical and time and cost effective means to acquire 
data where gaps exist. Also, cooperative data collection 
undertakings among Federal agencies and state and local 
governments should be mandated. Ultimately, these cost and time 
saving measures should be incorporated into job performance 
standards of NEPA team leaders, line officers and agency heads.

Reduce Costs

    Due apparently to increasing budget shortfalls, as 
mentioned above agencies are increasingly shifting the 
financial burden of project level NEPA compliance to industry 
for the plant and animal inventories, surveys and 
documentation. Unfortunately, this cost shifting trend also 
precludes many independent petroleum companies from operating 
on Federal lands and is becoming a principal cost constraint 
for larger operators. Partial relief may be accomplished by 
adoption of an Eco-Royalty Relief (ERR) program, as recommended 
by GRBAC. As proposed, ERR would allow industry to take credit 
against royalty payments for the cost of project NEPA 
documentation and mitigation/monitoring activities which exceed 
lease and regulatory requirements. ERR is supported by 
environmental Groups, the state of Wyoming, the public and 
industry.
    Furthermore, GRBAC's NEPA streamlining recommendations 
include ERR as a critical streamlining element because it could 
help resolve controversial issues early, provide a means for 
gathering sound scientific data to accurately assess potential 
impacts and mitigation. A DOE analysis in the GRBAC report 
indicates application of ERR would be revenue positive by 
accelerating royalty payments to Federal, state and local 
governments.

Establish Time Frames

    Time frames associated with project level NEPA analyses 
have become intolerable. Two to 4 years to obtain project 
approval on existing leases is unconscionable. While we 
recognize it may be impractical to impose fixed timeframes for 
completion of all NEPA documents, every effort should be made 
by the agency to perform within a reasonable schedule, which it 
can be held to by the project proponent. The GRBAC 
recommendations target a 50 percent reduction in time and paper 
which RMOGA believes is feasible if the agencies commit to 
streamlining the NEPA process. Utilizing options such as 
tiering, incorporating by reference and adopting exist-

ing information would help agencies reduce their analysis 
times. RMOGA recommends the agencies be required to track their 
performance in an annual report to Congress.

Improve Communication and Interagency Coordination

    Improved communication, coordination and resource data 
exchange among Federal, state and local governments and project 
proponents will help streamline the NEPA process, both at the 
project level and the land use planning level. Federal agencies 
are reluctant to allow local government involvement in the NEPA 
process, despite the fact they have a vested interest in the 
decisions being made and can help make the process run more 
smoothly. On the other hand, one of the most frustrating and 
controversial aspects of interagency coordination is that many 
single use agencies fail to recognize Federal land management 
agencies have a Congressionally mandated multiple-use mandate 
which cannot be abrogated. Furthermore, issues are often raised 
that are clearly beyond the scope of the analysis, e.g. global 
warming. Such input adds tremendous cost, time and controversy 
to the NEPA process for all parties while contributing little 
value from the perspectives of science-based decisionmaking, 
risk management or efficient land management. Clearly the lead 
Federal agency must take responsibility to ensure the process 
runs efficiently and cost effectively.

Establish NEPA Coordinators

    Federal agencies should establish a national NEPA 
coordinator to oversee all NEPA projects within an agency. This 
coordinator would ensure agency compliance with CEQ regulations 
and would have actual experience in managing NEPA projects. 
This position would also help ensure NEPA projects are kept on 
track and are adequately staffed and funded. To date, there is 
little or no agency support for NEPA experts. NEPA compliance 
typically falls to subordinate staff with little or no 
experience in project management and/or NEPA compliance. Since 
NEPA compliance constitutes a major responsibility of land 
management agencies, greater support from all levels of 
management must be provided.

Avoid Unessential Public Involvement

    Once again, due to fear of litigation, many Federal field 
offices issue public scoping notices on each and every minor 
activity proposed on public land, including those which involve 
previously disturbed areas, such as weed control along an 
existing access route. This results in unnecessary project 
delays, not to mention wasted Federal funds. Public 
notification and requests for comments should be limited to 
major projects that could result in significant impacts to 
other resource values or the human environment.

Improve the Scoping Process

    Agencies should limit the NEPA analysis to issues relevant 
to the project at hand. Agencies typically analyze in great 
detail insignificant issues simply because they have been 
raised in public comments. While it is important to identify 
all relevant issues as early as possible in the process, it is 
irrational to analyze each and every issue raised, particularly 
if a resource value or conflict does not exist within the study 
area or if it has already been adequately addressed in another 
document.
    While the CEQ regulations indicate ``alternatives'' are the 
heart of the EIS, it is inefficient to analyze every possible 
alternative that can be contrived. NEPA, itself, indicates only 
appropriate alternatives needed to address unresolved conflicts 
are necessary. Therefore, the range of alternatives should be 
dictated by the nature of the project proposal, including 
potential mitigation measures, and kept to the minimum needed 
to provide a method for resolving perceived conflicts.

Improve Monitoring Requirements

    We propose the agencies adopt a procedure for determining 
when land use activities are approaching the management 
threshold established in land use plans to ensure resource 
sustainability and land management continuity. As such, active 
monitoring must be done on all resource activities. This will 
allow Federal land management agencies to track key resource 
issues, improve their resource data bases and obtain a true 
picture of actual cumulative effects of surface management 
decisions. In order for this concept to work, the agencies must 
make monitoring a priority. In addition, a quality control 
process needs to be put in place to ensure resource management 
objectives are clearly stated and measurable. Management 
thresholds, which when reached require a review of existing 
management practices, must also be identified. An extremely 
important element of the monitoring effort is maintenance of 
existing resource data. This effort could be accomplished 
collectively with other Federal and state agencies. The end 
result would be a system for resource management planning which 
will increase efficiency in the Federal land use planning and 
project level NEPA processes.
    In conclusion, there are many ways in which to improve the 
NEPA process by revising current agency procedures. While RMOGA 
believes the risks associated with the legislative process may 
be unacceptably high on the NEPA issue and that the current 
framework can be made to work better, we would fully support 
legislation to implement an Eco-Royalty Relief program to 
address the currently unbridled costs associated with project 
level NEPA.
                                ------                                


        Statement of Hon. Alex Penelas, Mayor, Miami-Dade County

    In early 1993, President Clinton's administration 
designated Homestead Air Force Base as ``a model for the 
nation'' of fast-track realignment and conversion under the 
Presidential Five Point Plan. Realignment occurred on 31 March 
1994, and reconstruction of the Air Force Reserves cantonment 
area is proceeding on schedule. However, 4 years later, the 
``conversion'' part of the model (the non-cantonment portion of 
the base) is still in ``analysis paralysis.'' Specifically, the 
civilian airport reuse of the base, which was touted as the 
engine of economic revitalization, lingers in administrative 
limbo.
    The economy of the South Miami-Dade area, dependent for 
over 50 years on active duty military operations and 
agriculture, has lost over $4 billion since realignment. The 
area's continued economic recession is the biggest single 
contributor to the persistently high rates of unemployment 
figures in our county while the remainder of the state and the 
Nation enjoy sustained prosperity. Clearly, the entire county's 
economic viability is at stake.
    The complicated conversion process of the former Homestead 
Air Force Base from active duty to a joint civilian-military 
use facility was to be the engine of economic renewal after 
Hurricane Andrew's devastation. The process, however, appears 
to be on an indefinite holding pattern. This is due primarily 
to the manner in which the Council of Environmental Quality 
(CEQ) has interpreted a certain key rule in the National 
Environmental Policy Act (NEPA) of 1969. The rule in question 
requires the consideration of what is known as the ``No-Action 
Alternative'' as part of any Environmental Impact Statement 
(EIS). Analysis of the No-Action Alternative is very useful for 
situations involving the development of property at its highest 
and best use, but the No-Action Alternative is very misleading 
in the context of redevelopment in situations where, through an 
unfortunate combination of natural disaster and subsequent lack 
of maintenance and repair, property slated for redevelopment 
is, at the time of the EIS, underutilized and/or abandoned. In 
these circumstances, the No Action Alternative forces the 
Federal Government to start with a baseline which produces an 
artificially low level of environmental impacts. This 
automatically biases the entire process against any type of 
redevelopment.
    We currently face this situation with respect to the 
Supplemental EIS that has been ordered for the former base. The 
No-Action Alternative as it exists today disregards the former 
active duty military operations on the entire 2,940 acres of 
the property by reducing it to a reserve base with a very low 
level of military activity along with some ancillary law 
enforcement uses occupying less than one third of the original 
acreage. This is dramatically different from the level of 
activity that the base generated prior to Hurricane Andrew. To 
use the current artificially low level of activity as the 
comparative basis for a determination of whether the 
redevelopment should be allowed, defies sound judgment and 
harshly impacts South Florida through the potential loss of the 
valuable resource of the redeveloped use of the base.
    This same scenario exists any time a natural disaster, or 
just programming changes, result in the redevelopment of 
Federal property after it has become dormant for even a short 
period of time and therefore should be corrected.
    The logical, factual, most equitable solution is to require 
that the No-Action Alternative be based upon the level of use 
that the property experienced at its highest level of use in 
the past. Using this approach, redevelopment of real property 
that has been allowed to deteriorate for some years would be 
appropriated based upon the highest level of use that had 
existed in the past. This method considers the appropriate 
level of use of properties that were previously developed to 
their highest and best use while still protecting natural 
resources requiring continuing evaluation. Using the prior 
level of activity as the basis for future determinations 
ensures strict control over the potential for overdevelopment 
and overexpansion.
    I strongly urge you to consider the clarification of this 
key NEPA interpretation so that the No-Action Alternative 
reflects the highest level of activity attained prior to it 
being artificially reduced.
    Additionally, I urge that the current status of base 
contamination levels be accurately and rigorously documented in 
the SEIS. Restoration and investigation records prove that the 
base is one of the most environmentally clean in the Nation and 
that it poses an insignificant level of risk to human health 
and the area's environment.

           *         *         *         *         *

    During the process of trying to complete the realignment 
and conversion of the former Homestead Air Force Base to a 
joint civilian and military use facility, it has been a problem 
dealing with NEPA because of the interpretive rules which have 
come down from the CEQ. These rules require the consideration 
of what is known as the ``no action alternative'' as part of 
any Environmental Impact Statement (EIS). While looking at the 
no action alternative is very useful for situations involving 
the development of previously untouched land and resources, the 
no action alternative is very misleading in the context of 
redevelopment in situations where, either through natural 
disaster or other abandonment, a piece of property to be 
redeveloped is, at the time of the EIS, underused or abandoned. 
The no action alternative, in these circumstances, places the 
Federal Government in the position of having, as the base line 
for determining environmental impacts, an artificially low 
level of impacts. This can render the redevelopment extremely 
difficult.
    We currently face this situation with respect to the 
Supplemental EIS that has been ordered for the former base. The 
no action alternative that exists today is a base that has a 
very low level of reserve military use along with some 
ancillary law enforcement uses. This extremely low level of 
activity is dramatically different from the level of activity 
that existed at the base prior to Hurricane Andrew. To use the 
current, artificially low level of activity as the comparative 
basis for a determination of whether the redevelopment should 
be allowed, denies logic and harshly impacts South Florida 
through the possible loss of the valuable resource of the 
redeveloped use of this base.
    This same scenario exists any time a natural disaster, or 
just programming changes, results in the redevelopment of 
Federal property after it has become dormant for even a short 
period of time. This should be corrected.
    A possible solution could be to require that the no action 
alternative be based upon the level of use that the property 
experienced at its highest level of use in the past. In this 
way, redevelopment of property that has been dormant or 
artificially reduced in use for some period of time would be 
appropriately based upon the level or use that had existed in 
the past. This way the people will not be denied the 
appropriate use of properties that have previously been 
developed while still protecting those natural lands that 
should continue to be protected. By using the prior level of 
activity as the basis for future determinations, the prospect 
of over development and over expansion can still be controlled.
                                ------                                

 Statement of the American Petroleum Institute, the Natural Gas Supply 
Association, the Independent Petroleum Association of America, the Mid-
    Continent Oil and Gas Association, the Western States Petroleum 
       Association, and the National Ocean Industries Association
    The nation's leading petroleum industry associations appreciate the 
opportunity to present their views on NEPA process and how it affects 
our companies' applications to explore for and produce hydrocarbons on 
Federal lands. This statement is presented on behalf of the American 
Petroleum Institute (API), the Natural Gas Supply Association (NGSA), 
the Independent Petroleum Association of America (IPAA), the Mid 
Continent Oil and Gas Association (MCOGA), the Western States Petroleum 
Association (WSPA) and the National Ocean Industries Association 
(NOIA).
    API represents more than 400 companies involved in all aspects of 
the oil and natural gas industry, including exploration, production, 
transportation, refining and marketing. NGSA represents integrated and 
independent companies that produce and market natural gas. IPAA 
represents explorers and producers that drill some 85 percent of the 
nation's oil and gas wells. MCOGA represents petroleum companies in 
Alabama, Louisiana, Mississippi, Oklahoma and Texas. WSPA promotes 
policies that will help meet energy needs of the West and the nation. 
NOIA represents more than 280 companies and many individuals involved 
in exploration for and development of domestic offshore oil and natural 
gas resources.
    In section 102 of the National Environmental Policy Act (NEPA), the 
Congress directed all Federal agencies ``to use a systematic, 
interdisciplinary approach . . . in planning and decision-making which 
may have an impact on man's environment . . . which will ensure that 
presently unquantified environmental amenities may be given appropriate 
consideration in decision-making along with economic and technical 
considerations.''
    Although NEPA contained few mechanisms to achieve its goals, it has 
had tremendous impact on public land management decisions as a result 
of the procedural mandate from Congress, which directs all Federal 
agencies to ``include in every recommendation or report on proposals 
for legislation and other major Federal actions significantly affective 
quality of the human environment, a detailed statement by the 
responsible official on the environmental impact of the proposed 
action, any adverse environmental effects which cannot be avoided 
should the proposal be implemented, alternatives to the proposed 
action, the relationship between local short-term uses of man's 
environment and the maintenance and enhancement of long-term 
productivity, and any irreversible and irretrievable commitments of 
resources which would be involved in the proposed action should it be 
implemented.'' The Council on Environmental Quality (CEQ), created by 
Title II of NEPA, promulgated regulations implementing these action-
forcing procedures of NEPA that are binding on all Federal agency 
decisions.
    The requirement that Federal agencies prepare an environmental 
impact statement (EIS) prior to major agency actions significantly 
affecting the environment has spawned a body of law that now governs a 
variety of predominantly private activities involving any degree of 
Federal oversight, funding or approval. The lead agencies preparing 
EISs for oil and gas activities on Federal onshore lands are the Bureau 
of Land Management (BLM) and the U.S Forest Service of the Department 
of Agriculture. For activities on Federal offshore lands, the lead 
agency is the Minerals Management Service (MMS) of the Department of 
the Interior. In both offshore and onshore projects, other agencies, 
such as the Environmental Protection Agency and the Army Corps of 
Engineers, are typically involved in consulting roles, sometimes 
recommending requirements or stipulations for the lead agency to impose 
as a condition for granting a permit. Although the EIS process has 
helped achieve many of NEPA's goals, it has at times and in different 
places imposed unnecessary delays and costs on petroleum company 
operations without significant environmental benefits.
    Although statutory change is probably unnecessary and existing 
regulations are adequate, considerable change in the way the process is 
administered would be beneficial to Federal agencies, project 
applicants and American taxpayers. The only groups that would oppose 
change would be those which use the NEPA process to inflict costly and 
protracted delays in Federal decision-making, so as to sink projects 
through procedural maneuvering when opposition on the merits is 
groundless. Among the problems that need to be addressed are the 
following:

         Fear of litigation has forced Federal agencies to seek 
        ``litigation proof'' reviews, which leads to unnecessary 
        analysis, cost and delay. A lower confidence level should be 
        satisfactory.
         Too often the Environmental Protection Agency (EPA) 
        only provides comments on draft EISs, frequently at the end of 
        the comment deadline. EPA should identify its concerns early in 
        the NEPA process, as contemplated in NEPA and the CEQ 
        regulations. Extraneous analysis could be eliminated if salient 
        issues were identified earlier and analysis were kept focused 
        on important issues.
         At times lead agencies have difficulty getting other 
        agencies with jurisdiction or relevant expertise to become 
        ``cooling agencies.'' If a request to a sister agency is 
        denied, lead agencies are often unwilling to enforce CEQ 
        regulations that require all agencies with jurisdiction to 
        participate in the process.
    With regard to onshore projects in particular, we would note the 
following difficulties:

         There is a tendency in the BLM and Forest Service to 
        slow down the process simply because a project may be 
        controversial, rather than moving forward with an efficient 
        ``issue management'' approach.
         Cooperating agencies do not always reflect an adequate 
        understanding of the multiple-use mission of the BLM and Forest 
        Service. Hence, they often try to force projects to comport 
        with their own narrower agendas.
         Agencies have demonstrated a lack of understanding of 
        CEQ regulations implementing NEPA and/or a lack of commitment 
        to following CEQ guidelines.
         NEPA team leaders often have little or no experience 
        or training in managing the NEPA process or dealing with the 
        type of project under consideration. There is a lack of support 
        and oversight on NEPA projects by agency managers and NEPA 
        specialists.
         There is no agency accountability for the NEPA 
        process.
         Often there is poor communication between the project 
        proponent, the lead NEPA agency and any third-party contractor 
        retained to conduct the analysis.
         When project proponents are paying third-party 
        contractors for EIS work, there is no obligation or incentive 
        on the agency's part to streamline the work, improve efficiency 
        or otherwise reduce cost.
         Agencies often fail to explore preferred mitigation 
        efforts early in the process with other appropriate agencies 
        and stakeholders. Agencies are often unwilling to dismiss 
        frivolous public commentary and to separate ideological 
        commentary from that focused on project-specific environmental 
        impacts.
         The NEPA process sometimes creates timing difficulties 
        when understaffed agencies are asked to meet tight comment 
        periods and time lines. Cooperative planning memorandums of 
        understanding between lead agencies and state and local 
        regulatory authorities could minimize difficulties and 
        duplicative efforts while still allowing for meaningful input 
        from all parties.
    Offshore projects encountered their own unique problems over the 
years. However, the MMS, in working with industry public commenters, 
has been able to significantly streamline the offshore NEPA process in 
the traditional offshore areas. In the past, after a preliminary 
environmental assessment (EA) of proposed agency actions, the MMS 
routinely prepared full-blown EISs prior to offshore lease sales, and 
prior to implementation of each 5-year Outer Continental Shelf (OCS) 
Leasing Program. Numerous full-blown EISs were prepared over the years 
for lease sales in the central and western Gulf of Mexico. It is our 
understanding that, on average, it took MMS approximately 2 years to 
identify, design, conduct, evaluate, draft, respond to comments, and 
publish full-blown EISs. In these traditional areas, the final EISs 
contained similar information. Since CEQ's implementing regulations 
provide for the agencies to develop ``categorical exclusions'' to avoid 
duplicative EIS requirements, MMS has moved significantly to streamline 
the process in the traditional offshore areas.
    Oil companies must seek numerous Federal, state and local approvals 
for offshore activities, such as Exploration, Development Operation 
Coordination Documents, Plans of Development, and right-of-way 
applications. As part of MMS's former review and approval process of 
each application, it had to make redundant internal environmental 
assessments for each step, adding unnecessary time and costs to the 
approval process. As a result of MMS's evaluation of these past delays 
and redundant compilations of information, MMS has become one of the 
most responsive and cooperative of Federal agencies involved in the 
NEPA process. Current MMS NEPA requirements, as applied to the Gulf of 
Mexico OCS, include preparing one EIS for multiple sales. In the 
central Gulf of Mexico, MMS prepared a single EIS covering the next 
five proposed OCS lease sales.
    With thousands of operations conducted annually on the OCS, and 
with strict liability regulations in place to assure that those 
operations are performed prudently, using the highest environmental 
mitigation technologies, MMS has conduded that additional full-blown 
NEPA reviews in traditional areas such as the central and western Gulf 
of Mexico are unnecessary.
    The full-blown EIS process in frontier areas--for example, in ultra 
deep waters and the Eastern Planning Area in the Gulf of Mexico--is 
important to provide MMS as the lead agency with new environmental 
information. These studies should be expedited so that MMS will have 
the body of data necessary to decide if categorical inclusions for 
these areas are warranted.
                                 ______
                                 

            Statement of the American Farm Bureau Federation

    The American Farm Bureau Federation (AFBF) is the nation's 
largest general farm organization. AFBF has affiliated state 
Farm Bureau organizations in all 50 states and Puerto Rico, 
representing the interests of more than 4.8 million member 
families. We appreciate the opportunity to submit this 
statement for the hearing record, and to bring to the Committee 
some of the problems and concerns that we have encountered with 
the application of the National Environmental Policy Act 
(NEPA).
    One of the primary stated goals of NEPA is to ``encourage 
productive and enjoyable harmony between man and his 
environment.'' The statute provides a mechanism whereby the 
environmental impacts of Federal agency action can be assessed, 
taking into consideration the social and economic implications 
for such actions. NEPA is not designed to create any new 
substantive rights.
    There are three main issues that we want to bring to the 
attention of this Committee with regard to NEPA.

1. Farmers, Ranchers and Other Economic Interests Are Being 
Denied Judicial Standing To Challenge the Agencies' Compliance 
With NEPA.

    Despite the fact that NEPA is ostensibly just a procedural 
statute, it has been the subject of extensive litigation. Most 
of the litigation has centered on the adequacy of a Federal 
agency's compliance with the provisions of NEPA. Challenges 
take the form of suits claiming that more extensive 
documentation should have been prepared in particular cases, or 
that the prepared documentation was inadequate.
    Unfortunately, recent court decisions addressing the scope 
or adequacy of NEPA documentation have not included any cases 
brought by farmers, ranchers or other landowners. That is 
because a number of Federal courts have held that farmers, 
ranchers and other landowners have no judicial standing under 
NEPA to challenge the adequacy or sufficiency of NEPA 
documents. Such courts have held that social and economic 
interests are not within the ``zone of interests'' contemplated 
by NEPA, and they conclude that there is no basis to bring suit 
to challenge decisions made under the law.\1\
---------------------------------------------------------------------------
    \1\ Examples of such decisions include Nevada Land Action 
Association v. U.S. Forest Service, 8 F.3d 713 (9th Cir. 1993); Region 
8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800 
(11th Cir. 1993). This exclusion was also used to deny Farm Bureau 
standing to challenge the adequacy of the Environmental Impact 
Statement for the Reintroduction of the Gray Wolf Into Yellowstone and 
Central Idaho, Wyoming Farm Bureau Federation, et al v. Babbitt, et al. 
No 94-CV286-D, District of Wyoming (1997)
---------------------------------------------------------------------------
    The courts that have denied standing to economic and social 
interests to challenge NEPA documentation have failed to 
consider the balancing between man and the environment required 
by NEPA and that was one of the primary purposes of NEPA as set 
forth above. NEPA requires agencies to consider the social and 
economic impacts of agency action in evaluating alternatives, 
but courts do not give those interests any recourse when 
impacts are ignored or not adequately described.
    Nevertheless, these decisions are on the books. Farmers, 
ranchers and other landowners have no way to challenge the 
adequacy of NEPA compliance in those jurisdictions where these 
cases exist. Even though NEPA only creates a process that 
agencies must follow, the infommation that is produced as part 
of that process plays a big part in the decision that is 
ultimately reached. Agencies rely on the information that is 
developed in reaching a decision. Thus, if any aspect of the 
information required to be developed is inadequate or is 
inaccurate, that deficiency skews the entire decision-making 
process.
    The denial of standing for farmers and ranchers to 
challenge the NEPA process is detrimental for a number of 
reasons. By denying them the opportunity to protect their 
interests, it effectively denies them any meaningful 
participation in the NEPA process. An agency that has no 
accountability for the accuracy or completeness of its social 
and economic analysis will likely pay less attention to that 
part than to other aspects of the analysis.
    Denial of standing also creates the inequitable result that 
only conservation interests can challenge decisions adverse to 
them, while commodity interests cannot challenge decisions 
adverse to them. Agencies only have to pay attention to one 
side of the issue, because that is all they can be held 
accountable for. The ``balance'' that NEPA called for between 
man and his environment has thus been destroyed. Instead of 
promoting that balance as NEPA was intended to, the manner in 
which NEPA is being interpreted is making consideration of man 
with his environment even more out of balance.
    This problem has adverse impacts on decision-making as 
well. Agencies considering only one side of an issue 
necessarily suffer because they do not consider the other. 
Effective decisionmaking best occurs when all sides of an issue 
are considered.
    This problem could be solved through legislation, with an 
express provision defining standing under the Act. Until this 
situation is resolved, the intent of NEPA will be thwarted, and 
the quality of decision-making thereunder will suffer.

2. Resource Planning and Implementation Activities Are Too 
Often Subject to Duplicative NEPA Compliance.

    Another major problem hamstringing land management agencies 
is the duplicative NEPA compliance that is required for both 
planning activities and for implementation of those planning 
decisions.
    The National Forest Management Act (NFMA) requires the 
Forest Service to develop forest plans for each element of the 
National Forest system. Similarly, the Bureau of Land 
Management is required to develop land management plans for 
each unit of its system. Typically, these plans encompass the 
entire unit, and are broad based documents that encompass all 
or almost all resource uses within the unit.
    The management plan is implemented within each unit through 
individual site-specific management actions. If, for example, a 
forest plan calls for 30,000 animal unit months of grazing per 
year in the forest, that broad statement is implemented through 
the implementation of individual grazing permits that total 
30,000 animal unit months per year. The plan paints the broad 
picture--individual implementing actions fill it in.
    Forest and resource plans are subject to the provisions of 
NEPA. All plans were preceded by an Environmental Impact 
Statement (EIS) prepared in accordance with NEPA. The EIS for 
each plan was used to determine use allocations and locations 
within the forest. The goals, objectives and broad design for 
each resource unit are determined through the public 
participatory processes spelled out in NEPA.
    Once these goals have been determined, however, the actions 
that implement these plans should not also have to go through 
the same process. The extensive analysis undertaken for each 
forest plan or resource plan pursuant to the National 
Environmental Policy Act is undermined by going through the 
same process for each project level activity (such as grazing 
permit renewals), notwithstanding the fact that such activities 
are in compliance with the forest plan. If adequate NEPA has 
been done in the development of the management plan, the same 
process ought not have to be repeated for individual projects 
that implement the plan. This results in a waste of money, 
manpower and time.
    These duplicative actions also hamstring the ability of a 
land management agency to accomplish its mission. Instead of 
on-the-ground work, agency personnel are tied up doing NEPA 
work onsite-specific projects that should not have that level 
of analysis in the first place.
    An example of this situation occurred in 1995, with the 
renewal of Forest Service livestock grazing permits coming due. 
More than half of the over 9,000 permits were up for renewal by 
the end of that year, and the Chief of the Forest Service had 
determined that NEPA must be complied with before permits could 
be re-issued. Livestock grazing allocations had been determined 
in forest plans after having gone through the NEPA process. 
This situation threatened to tie up Forest Service personnel 
for a long period of time doing nothing but NEPA compliance for 
grazing permit renewals. Fortunately, this situation was 
resolved before the entire Forest Service became nothing more 
than a NEPA compliance factory. But it took a legislative 
solution to accommodate all interests.
    That is not to say that NO analysis is necessary at the 
implementation phase. But it certainly should not have to be an 
EIS. As long as the implementing action is consistent with and 
in accordance with forest or resource allocations, a much 
lesser level of analysis should be sufficient. Perhaps all that 
is needed is an analysis to determine that conditions are the 
same or similar to when the management plan was developed. In 
any event, there needs to be some accommodation so that the 
same costly and time consuming work that is being conducted at 
planning levels is not being needlessly duplicated at the 
implementation stage.

3. Little or NO NEPA Work is Done on Many Things that Affect 
Federal Resource Units.

    We have described above situations where compliance with 
NEPA results in the same NEPA activities being required to 
implement specific measures that have already undergone NEPA 
analysis.
    Ironically, little or no NEPA work is usually done for 
actions that actually represent changes in direction of the 
land management plan. For example, the Forest Service has 
adopted multi-forest or regional guidelines, or developed 
watershed plans or ecosystem management plans, that may affect 
a number of forest plans. Within the framework of NFMA, these 
changes would be viewed as plan amendments, yet very rarely is 
NEPA ever performed or forest plans even formally amended to 
incorporate these additional plans. Instead these additional 
processes are overlain on the forest plan and not made a part 
of it. The use of these devices serves to circumvent the 
requirements of NEPA altogether.
    These are but a few of the general issues affecting the way 
NEPA works. In some cases it causes duplication, while in other 
cases it allows complete circumvention of its requirements.
    All three of the issues that we have identified here are 
important, and they subvert the purposes for which NEPA was 
enacted. All three can be solved by some legislative direction 
or clarification. If anything is to come out of this hearing, 
we hope that it can be a way to resolve these issues. The 
American Farm Bureau Federation offers its assistance to 
satisfactorily resolve these situations.

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