[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
          NEPA LITIGATION: THE CAUSES, EFFECTS AND SOLUTIONS

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

                           OVERSIGHT HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                      Thursday, November 10, 2005

                               __________

                           Serial No. 109-35

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Henry Brown, Jr., South Carolina     Mark Udall, Colorado
Thelma Drake, Virginia               Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico         Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

                       TASK FORCE ON UPDATING THE
                    NATIONAL ENVIRONMENTAL POLICY ACT

                 CATHY McMORRIS, Washington, Chairwoman
             TOM UDALL, New Mexico, Ranking Democrat Member

Ken Calvert, California              George Miller, California
George P. Radanovich, California     Edward J. Markey, Massachusetts
Chris Cannon, Utah                   Frank Pallone, Jr., New Jersey
Jim Gibbons, Nevada                  Grace F. Napolitano, California
Greg Walden, Oregon                  Jay Inslee, Washington
Rick Renzi, Arizona                  Mark Udall, Colorado
Stevan Pearce, New Mexico            Raul M. Grijalva, Arizona
Henry Brown, Jr., South Carolina     Jim Costa, California
Thelma Drake, Virginia               Nick J. Rahall II, West Virginia, 
Louie Gohmert, Texas                     ex officio
Richard W. Pombo, California, ex 
    officio


                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Thursday, November 10, 2005......................     1

Statement of Members:
    Cannon, Hon. Chris, a Representative in Congress from the 
      State of Utah, Statement submitted for the record..........    61
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     2
    Jindal, Hon. Bobby, a Representative in Congress from the 
      State of Louisiana.........................................     4
    McMorris, Hon. Cathy, a Representative in Congress from the 
      State of Washington........................................     1
    Pearce, Hon. Stevan, a Representative in Congress from the 
      State of New Mexico........................................     4
    Udall. Hon. Tom, a Representative in Congress from the State 
      of New Mexico, Statement submitted for the record..........     3

Statement of Witnesses:
    Cowan, Caren, Executive Director, New Mexico Cattle Growers' 
      Association................................................    29
        Prepared statement of....................................    31
        Response to questions submitted for the record...........    34
    Johnston, Hon. J. Bennett, Former Senator, State of Louisiana     8
        Prepared statement of....................................     9
        Response to questions submitted for the record...........    11
    McGarity, Thomas O., President, Center for Progressive Reform    20
        Prepared statement of....................................    21
    Richards, Brenda, Federal Lands Committee Chairman, Idaho 
      Cattle Association, and Idaho Director, Public Lands 
      Council....................................................    16
        Prepared statement of....................................    18
    Sease, Debbie, Legislative Director, Sierra Club.............    39
        Prepared statement of....................................    41
        Supplemental statement submitted for the record..........    45
        Response to questions submitted for the record...........    47
    Winn, Robert E., Partner, Sessions, Fishman & Nathan, L.L.P..    11
        Prepared statement of....................................    13
        Response to questions submitted for the record...........    15

Additional materials supplied:
    Mississippi River Basin Alliance, Statement submitted for the 
      record.....................................................    61
    National Wildlife Federation, Natural Resources Defense 
      Council, and Earthjustice, Joint letter submitted for the 
      record.....................................................    62
    Towers, Joseph A., Federal Attorney (Retired), U.S. Army 
      Corps of Engineers, Statement submitted for the record.....     6


OVERSIGHT HEARING ON NEPA LITIGATION: THE CAUSES, EFFECTS AND SOLUTIONS

                              ----------                              


                      Thursday, November 10, 2005

                     U.S. House of Representatives

                            NEPA Task Force

                         Committee on Resources

                            Washington, D.C.

                              ----------                              

    The Task Force met, pursuant to call, at 10:33 a.m. in Room 
1324 Longworth House Office Building, Hon. Cathy McMorris 
presiding.
    Present: Representatives McMorris, Grijalva, Drake, 
Gibbons, Jindal, Brown, Radanovich, Napolitano, Costa, Pombo, 
Pearce and Inslee.

STATEMENT OF CATHY McMORRIS, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF WASHINGTON

    Ms. McMorris. Good morning, everyone. I would like to call 
the hearing to order. Here at the beginning, I would like to 
ask unanimous consent that the gentlemen from Louisiana, Mr. 
Jindal, and Mr. Melancon be allowed to join the members of the 
Committee on the dais and participate in the hearing. If there 
is no objection? Hearing none, so ordered.
    This is the first hearing of the Task Force on Updating the 
National Environmental Policy Act. The mission of this Task 
Force is to focus on some specific issues and put forth 
recommendations for updating NEPA. The issue spotlighted today 
will be NEPA litigation. I have noted the impact of NEPA 
litigation from the start of the Task Force hearings and 
believe that thousands of NEPA lawsuits have been the primary 
cause of the confusion and uncertainty that prevents NEPA from 
fulfilling its original intent.
    The purpose of this hearing is not to lay blame for the 
effects of NEPA litigation, but to understand why it happens, 
what it means and what should be done about it. Every agency 
has had NEPA lawsuits filed against it. The result is that 
every issue, if not every word, in NEPA has been litigated. 
However, it is not clear that anything has been settled as a 
result of these lawsuits. There continues to be a steady stream 
of lawsuits rehashing many of the same issues.
    What is clear is that NEPA lawsuits have become the tool 
sometimes used to stop or delay Federal government actions. 
This is best reflected by the comments of Roy Kienitz, 
Executive Director of the Surface Transportation Policy 
Project. And I quote, ``In the struggle between proponents and 
opponents of a highway project, the best an opponent can hope 
for is to delay things until the proponents change their mind 
or tire of the fight.''
    The same mentality was demonstrated by Save our Wetlands. 
Despite what will be said by some of its defendants, a lawsuit 
filed by Save our Wetlands stopped the hurricane barrier 
project in New Orleans. Save our Wetlands made a conscious 
choice to sue to stop this project and discarded the potential 
impacts on New Orleans.
    Finally, let me address a couple of things you might hear 
today. You may hear that NEPA suits are not a problem, chiefly 
because there are not that many and they really do not stop 
projects. The reality is that it does not matter how many NEPA 
suits are filed in any one year. It is the effect of these 
lawsuits that is of concern. For example, there may only be one 
NEPA-related suit focused on grazing in one specific part of 
the country, but the effect might be to remove cattle from 
hundreds of thousands of acres and disrupt the lives of 
hundreds of cattle growers across the nation.
    You may also hear that NEPA lawsuits are part of the 
process. Indeed, they are part of the process of blocking a 
project one group may not like, but it is not part of the NEPA 
process as laid out in the law or its regulations. One of the 
key elements which everyone values in NEPA is public 
participation and in keeping with that practice, although we 
only have six witnesses here today, we do want to hear from 
everyone. From the very beginning, we have encouraged people to 
offer their thoughts, their comments, to the Resources 
Committee so that we can take those thoughts and 
recommendations into consideration.
    Do you have an opening statement? Go ahead, Mr. Grijalva.

 STATEMENT OF RAUL GRIJALVA, A REPRESENTATIVE IN CONGRESS FROM 
                      THE STATE OF ARIZONA

    Mr. Grijalva. Thank you very much, Madame Chairwoman. I 
also wish to welcome the witnesses and I look forward to their 
testimony today. I have serious reservations about the 
sincerity of this examination of NEPA. This hearing in 
particular appears to be orchestrated to come to a particular 
conclusion about the law, which I do not believe is supported 
by the overwhelming amount of positive testimony we have heard 
on the law in the hearings around this country.
    In addition, I am disappointed that in spite of the Task 
Force's efforts to closely examine NEPA, our overall Committee 
continues to pass legislation that waives parts of the law or 
waives it for particular types of projects. How can we engage 
seriously in this effort when the leadership of this Committee 
continues to undermine the law like this? My Democratic 
colleagues and I engaged in an effort in good faith and I think 
it is bad faith to continue to pass NEPA waivers while we are 
doing our work on this Task Force.
    As to the content of this hearing before us today, to 
target NEPA as a cause of devastation in New Orleans is nothing 
but a blame game to try to shift the responsibility from where 
it should be. The true causes of the flooding are complicated, 
but certainly funding Army Corps of Engineer projects to shore 
up the levies would have helped considerably. But the 
Administration utterly failed to fund these measures, despite 
being warned that the hurricane hitting New Orleans directly 
would result in massive casualties, economic loss and the 
devastation that we all witnessed.
    Our other policies have exacerbated the dangerous situation 
the city is in. Wetlands that could protect that city from the 
worst of the storm surge have been developed or destroyed. 
Shipping canals have been constructed to make the city 
extremely vulnerable and that risk has not been adequately 
protected.
    I would also note that before we begin, that several of our 
witnesses support changing NEPA represent groups that have used 
NEPA themselves to challenge Federal agency decisions. They 
claim to dislike the so-called delays caused by environmental 
review, yet ironically, they also use this law to challenge 
governmental decisions and advocate for their organizations. 
Without NEPA, I believe these groups would also find that their 
right to know what the government is doing and hold that 
government accountable would be severely curtailed.
    Like I said earlier, I look forward to the witnesses. I 
would submit, I would request, Madam Chairwoman, if we could 
submit the statement of my colleague, Mr. Tom Udall, for the 
record? I want to close with something I think he has as part 
of his statement, Madam Chairwoman. We have stated from the 
outset that the burden of proof rests with those proposing to 
change NEPA. So far, nothing in the record developed by this 
Task Force comes close to meeting that burden, and with that, 
thank you, Madam Chairwoman, and I look forward to the 
testimony.
    [The statement submitted for the record by Mr. Udall 
follows:]

Statement of The Honorable Tom Udall, a Representative in Congress from 
                        the State of New Mexico

    Madame Chairwoman, we join you in welcoming our panel of witnesses 
and thank them for their time and effort to be with us today.
    It is important to note that we are a different Task Force today 
than at our last meeting. Authority for the original ``Task Force on 
Improving NEPA'' has expired and we are now reconstituted as the ``Task 
Force on Updating NEPA.''
    Unfortunately, more has changed than simply our name. Thanks to 
actions taken by the full Resources Committee, all pretense of 
objectivity or open-mindedness in the work of this Task Force has been 
destroyed.
    Despite the fact that this Task Force has not completed its work, 
the Resources Committee continues to approve sweeping changes to NEPA, 
each designed to carve special interest exemptions into the heart of 
the law.
    These actions have severely undermined this Task Force's 
credibility. If our final work product is to be viewed as anything 
other than a sham, the Majority must stop ``reviewing'' NEPA with one 
hand, while gutting it with the other.
    The announced topic of today's hearing is, ``NEPA Litigation: Its 
Causes, Effects and Solutions.'' While we would never want to be 
accused of a lack of objectivity, the answers to the questions posed by 
this title are already apparent.
    The cause of NEPA litigation is shoddy work by federal agencies. 
NEPA provides no cause of action challenging the substance of agency 
decisions. Rather, plaintiffs may only allege defects in an agencies' 
decision-making process.
    Such litigation can become protracted only if, at some point, a 
federal judge agrees that the Agency's work was defective. While the 
agencies themselves, along with public land profiteers, would obviously 
prefer that such defects be ignored, responsible stewardship of our 
public lands demands better. NEPA litigation ensures that federal 
agencies move forward with decisions affecting the American people and 
their lands only after providing the public the opportunity for input 
and quality of analysis they deserve.
    The effects of such litigation are also apparent. In most cases, 
legal challenges to agency plans under NEPA result in changes to the 
original proposal which mitigate the environmental impacts and better 
protect public resources. NEPA litigation improves environmental 
protection. Period.
    Finally, the ``solution'' the Majority appears to be seeking has 
already been found. In 35 years, the percentage of agency decisions 
triggering NEPA that end up in litigation has never exceeded a fraction 
of 1 percent.
    In other words, in more than 99 percent of those cases where an 
agency is taking major federal action, NEPA serves to avoid a court 
fight. Through collaboration, extensive public involvement and thorough 
analysis, NEPA inoculates the vast majority of agency plans from legal 
challenge. NEPA doesn't foster litigation. NEPA prevents litigation 
more than 99 percent of the time. Problem solved.
    Madam Chairwoman, we have stated from the outset that the burden of 
proof rests with those proposing to change NEPA. So far, nothing in the 
record developed by this task force comes close to meeting that burden.
    Thank you.
                                 ______
                                 
    Ms. McMorris. Thank you. Does anyone else wish to make 
comments? Representative Pearce?

 STATEMENT OF STEVAN PEARCE, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF NEW MEXICO

    Mr. Pearce. I just wanted to welcome Caren Cowan from my 
district who is here to testify today.
    Ms. McMorris. Absolutely.
    Mr. Pearce. And represents New Mexico well. As far as the 
burden of proof referred to by my friend from Arizona, I think 
that the ex-Senator from North Dakota, or South Dakota, Mr. 
Daschle, who excluded his state from all NEPA processes, he is 
the one who proves the case. He excluded his forest from any 
NEPA processes or any lawsuits so that the process can go ahead 
and I think that is some compelling evidence for all of us to 
speak to in the country. Thank you, Madam Chair.
    Ms. McMorris. Yes, Mr. Jindal?

 STATEMENT OF BOBBY JINDAL, A REPRESENTATIVE IN CONGRESS FROM 
                     THE STATE OF LOUISIANA

    Mr. Jindal. Yes, thank you, Madam Chair. I would just like 
to briefly welcome two witnesses from my home state who 
certainly we're very honored to be joined by Senator Johnston, 
really the dean of our delegation for many years. He began his 
life in politics in the Louisiana House of Representatives in 
1964 and went to the Louisiana Senate in 1968. In 1972 he 
became a member of the U.S. Senate where he served our state 
and our nation through 1997. He was the Chairman of the Senate 
Environmental and Natural Resources Committee. He led the 
charge to push through the last Congress a comprehensive energy 
bill. Thirty years ago there were two plans to protect New 
Orleans and I know he is going to talk about this and the 
surrounding parishes, a Barrier Plan and a High Level Plan.
    The Barrier Plan was originally chosen because it held up 
as a result of numerous causes, one of which was NEPA-related 
litigation. Rather than facing delays, the Corps decided with 
the High Level Plan instead to raise the existing levies. The 
Barrier Plan was, at the time, supported by most government 
officials, including our Senators, as well as the Corps. I 
would like to thank him today for honoring us with his 
presence, taking the time to come today to share with us his 
perspective. I would also like to welcome, next to him is Mr. 
Bob Winn, a graduate of Loyola Law who also has an L.L.M. in 
environmental law from Tulane University. As you can see, a 
partner, recently retired partner--I will let him describe it, 
of Sessions, Fishman & Nathan and also the father of a very 
dear friend of ours. I just wanted to welcome them both. I know 
they have a very important perspective to share on what has 
happened in my home State of Louisiana.
    So, thank you, Madam Chair, for allowing me to welcome our 
witnesses.
    Ms. McMorris. Yes, anyone else? Well, I too, want to 
welcome everyone. Senator Johnston, it is very great to have 
you here. Also on the panel this morning is Robert Winn, an 
attorney who was directly impacted by the flooding of New 
Orleans. To give the insight on how litigation affects cattle 
growers in the Southwest is Caren Cowan of the New Mexico 
Cattle Growers' Association. To provide the perspective of the 
national implications of a NEPA lawsuit is Brenda Richards, 
representing the National Cattlemen's Beef Association and the 
Idaho Cattle Association. To give us some insight is University 
of Texas law professor Thomas McGarity. He is also President of 
the Center for Progressive Reform. Debbie Sease of the Sierra 
Club will share her views on the nature of NEPA litigation.
    I thank you all for joining us today. It is the policy of 
the Resources Committee to swear in witnesses, so if you will 
stand and raise your right hand?
    [Witnesses sworn.]
    Ms. McMorris. Let the record reflect that the witnesses 
answered in the affirmative. Each witness has been asked to 
present five minutes in oral testimony. There are lights that 
will guide you and as we become closer, as we reach that five 
minute mark, the green light will turn to yellow. As others 
have stated, yellow means speed up and red means please 
conclude your remarks. And by doing so, it will allow more time 
for questions.
    Before we get started, I wanted to talk about something 
that is very important for this hearing. I had invited Mr. 
Joseph Towers, who is retired general counsel for the Army 
Corps of Engineers in New Orleans and was someone who was in 
the room when the Save our Wetlands lawsuit was being tried. 
Unfortunately, he was unable to attend today, but he did submit 
a statement and I wanted to include part of it in the record 
and read a passage that puts this lawsuit and the NEPA 
litigation issue into perspective. I quote, ``If we had been 
firmly convinced that NEPA was simply a full disclosure law, we 
would have, perhaps, let it all hang out and moved on and taken 
our chances on that road. Our engineers were fearful that any 
delay could result in a major hurricane project completion. 
Hurricane Betsy had devastated New Orleans on September 9, 1965 
and in 1977, most of our staff had been in or observed the 
horror of flood waters reaching up to the roofs of houses and 
floating cadavers, some of whom were unrecognizable from 
bloated decay, in large sections of New Orleans and adjoining 
parishes.
    Faced with the foregoing scenario, it must be noted that 
responsible and knowledgeable individuals pleaded with Judge 
Schwartz and the plaintiffs to lift the injunction. After the 
injunction was issued, I was present in Judge Schwartz's 
chambers when the U.S. Attorney for Eastern Louisiana told the 
Judge and the Plaintiff and many others present that his 
injunction could kill thousands of people. Yet, Mr. 
Gallingshouse was an expert on hurricane flooding. He had been 
President of the New Orleans Levee Board for many years and was 
well aware of what a powerful hurricane could do to the New 
Orleans area. The U.S. Congressman for New Orleans, Eddie 
Heber, who was present, also intervened and pleaded with the 
Judge. Schwartz was ismissive of these entreaties.
    What does the New Orleans experience tell us about NEPA? 
The Act treats a project such as these projects critical to the 
survival of hundreds of thousands of people in the same way as 
one for the expansion of a dam reservoir with no immediate 
impact on life or death issues. In New Orleans, it gave 
environmentalists who hopefully may not have understood the 
consequences of their actions a weapon with which to endanger 
the survival of people of a major American city.'' That is part 
of his testimony that will be entered into the record.
    At this time, we will turn to the witnesses. Senator 
Johnston, if you would begin. It is great to have you here.
    [The statement submitted for the record by Mr. Towers 
follows:]

        Statement submitted for the record by Joseph A. Towers, 
         Retired Federal Attorney, U.S. Army Corps of Engineers

    I thank you for giving me the opportunity to present this statement 
to your Committee in lieu of testifying.
    My name is Joseph Towers. I am a retired federal attorney. I have 
served 37 years as an attorney for the Corps of Engineers. Thirty-one 
of those years, from 1965 to 1996 were spent as the District Counsel 
for the New Orleans District of the Corps.
    The subject of my statement today will concern NEPA's role in the 
prelude to the disaster that occurred in New Orleans when Hurricane 
Katrina struck on August 29th 2005 and flooded much of the city.
    The story of that disaster begins on a winter day in December 1977, 
twenty eight years ago. That was a day a federal district court judge, 
Charles Schwartz, issued an order shutting down work on a Corps of 
Engineers project to protect New Orleans from hurricane driven 
floodwaters. I was counsel for the agency in that litigation, Save Our 
Wetlands v. Early Rush, et al., USDC Ed.La. Civil No. 75-3710.
    That project was the Lake Pontchartrain and Vicinity Hurricane 
Protection project. It was signed into law in 1965. It was in part the 
result of a powerful and devastating hurricane called Betsy that struck 
New Orleans on 9 September 1965. Betsy flooded much of Eastern New 
Orleans, including the now devastated Ninth Ward as well as large parts 
of St. Bernard, Plaquemines, Lafourche, Terrebonne, St. Charles and St. 
Mary parishes. However, engineering and design studies for the Lake 
Pontchartrain project had in fact begun long before 1965. From the very 
inception of such studies, it was recognized that a principal feature 
of the project design would have to be the closure of the two natural 
channels, named the Rigolets and the Chef Menteur, connecting the open 
waters of the Gulf of Mexico to Lake Pontchartrain, so as to prevent 
hurricane force winds from driving storm surges into the Lake and then 
blowing them to the south and into the City of New Orleans, most of 
which is built below sea level.
    As a result, a principal feature of the Lake Pontchartrain project 
was the construction of two barrier complexes in or adjacent to these 
natural channels. The barriers were to be massive concrete and steel 
structures with steel gates that could be lowered at the approach of a 
storm, shutting off any flows between the Lake and the Gulf, but 
allowing such flows to occur at normal times. A part of these complexes 
included the construction of navigation canals and locks to permit the 
movement of vessels to and from the Lake as well as a system of 
connecting levees forming a solid line of barriers and levees moving 
southward from an elevated location in Mississippi called Apple Pie 
Ridge to connect to other levee systems protecting St. Bernard parish.
    As you know, the National Environmental Policy Act went into effect 
in January 1970. By 1974 the New Orleans District of the Corps of 
Engineers had prepared a final environmental impact statement for the 
Lake Pontchartrain project. Shortly thereafter, an environmental 
association, Save Our Wetlands, along with St. Tammany Parish, filed a 
lawsuit in federal district court seeking to enjoin the Lake 
Pontchartrain project alleging that the EIS did not meet the 
requirements of NEPA. That lawsuit resulted in the 30 December 1977 
injunction issued by Judge Schwartz effectively halting the Lake 
Pontchartrain project.
    The cornerstone of the Schwartz injunction faulted the EIS for 
failing to properly assess, in accordance with NEPA requirements, the 
effects of the barriers on the marine life of the Lake. This failure 
was asserted both as to Corps efforts in preparing the EIS and, later, 
by others, in failing to promptly supplement it with the necessary 
assessment after the project was enjoined. However, the New Orleans 
District had painfully come to the realization that it was impossible 
to achieve NEPA's objectives in both instances within a time frame that 
would not subject the populations of New Orleans and surrounding areas 
to the flooding risk resulting from a powerful hurricane..
    A main argument of the plaintiffs, adopted by Judge Schwartz in his 
injunction, was that the barriers would adversely impact shellfish and 
finfish populations in the Lake because all these populations migrated 
to and from the Lake either as adults or juveniles, which was true, and 
that the barrier structures would have interfered with such migrations 
by reducing the aquatic cross-sections of the natural channels, also 
true. Our biologists and engineers concluded that to do a credible NEPA 
study we would have had to minimally fully catalog these populations, 
establish their migratory patterns at different seasons, and determine 
in some way the theoretical mortalities that would occur from 
restricted and greater velocity flows as a result of the barrier 
structures. They considered a reasonable time frame of several years 
would not be unthinkable. I recall that there was dialog with the Fish 
and Wildlife Service and the Louisiana Department of Fish and Game, or 
whatever it was called at that time, but it was not fruitful. These 
difficulties had been made known to Judge Schwartz who dismissed their 
validity.
    One must bear in mind that we are talking about the year 1977, 
about six years after NEPA became law. We were unsure of just what NEPA 
meant. As of mid-1977 there were about 15 cases in the Supreme Court 
mentioning or noting NEPA. None of these was particularly illuminating. 
In fact, in a couple of these the Court had looked the other way rather 
than agree to implement environmentalist demands. We had received 
little practical guidance from our general counsel in Washington. If we 
had been firmly convinced that NEPA was simply a ``full-disclosure'' 
law, we would have perhaps ``let it all hang out,'' and moved on and 
taken our chances on that road. Our engineers were fearful that any 
delay could result in a major hurricane prior to project completion. 
Hurricane Betsy had devastated New Orleans on 9 September 1965 and in 
1977 most of our staff had been in or observed the horror of putrid 
flood waters reaching up to roofs of houses and floating cadavers, some 
of whom were unrecognizable from bloated decay, in large sections of 
New Orleans and adjoining parishes.
    Faced with the foregoing scenario, it must be noted that 
responsible and knowledgeable individuals pleaded with Judge Schwartz 
and the plaintiffs to lift the injunction. After the injunction was 
issued, I was present in Judge Schwartz's chambers when the U.S. 
Attorney for Eastern Louisiana, Gerald Gallinghouse, told the judge and 
the plaintiff and many others present that his injunction could kill 
thousands of people. Mr. Gallinghouse was an expert on hurricane 
flooding. He had been president of the Orleans Levee Board for many 
years and was well aware of what a powerful hurricane could do to the 
New Orleans area. The U.S. congressman for New Orleans, ``Eddie'' 
Hebert, who was present, also intervened and pleaded with the judge. 
Schwartz was dismissive of these entreaties.
    Environmentalists have questioned the significance of the 1977 
injunction by asserting that the barrier feature would most probably 
have been worthless in the face of a hurricane of Katrina's magnitude. 
This may be a valid argument, if we assume that the barrier design 
parameters of 1962-1965 would have remained frozen in time for 40 years 
and the Corps had ignored the mounting meteorological evidence of more 
severe hurricanes like Betsy in 1965 and Camille in 1969 in formulating 
its project design, a most unlikely scenario. But there is substantial 
evidence that even the 1962-1965 barrier design might have averted the 
Katrina disaster. The original barrier design document provided for 
connecting levees between the barrier structures of 9 to 14 feet above 
m.l.g. but explained: ``This elevation of 9 feet will allow flood surge 
overtopping for a short period during a hurricane, but this overtopping 
will not significantly affect the water elevation of Lake Pontchartrain 
and affect the function of the barrier system.'' Expert geotechnical 
engineers now examining the failures at the 17th Street Canal and the 
London Avenue Canal agree that high water levels spawned by Katrina 
created unusual subterranean pressures under the walls which caused 
failure. These high water levels might not have existed even with the 
1962-1965 barrier design dimensions in place. Recent NOAA data 
establish increased severity of the storm surge as one moves further 
east of the eye toward Ocean Springs, Mississippi. The highest recorded 
NOAA storm surge reading was at Ocean Springs, where the sensors failed 
at 13.26'', yet the highest reading for a functioning sensor was at 
Pilot Station, close to the eye wall, with a surprisingly moderate 
reading of 7.76'', clearly an indication that the storm surges at the 
Rigolets and the Chef Menteur might have been far more subdued than 
those that overwhelmed the Mississippi Gulf coast. But the most telling 
rebuttal to the contention that the barrier feature would have been 
worthless is the 25 October 2005 report in the New Orleans Times 
Picayune stating that ``The New Orleans District of the Corps of 
Engineers recently finished the first draft of a Category 5 hurricane 
protection plan for the New Orleans area. The major goal of the plan, 
according to officials who have seen it, is to prevent storm surges 
entering the city through lakes Pontchartrain and Borgne. It would 
accomplish this with a system of giant levees across exposed and low 
lying areas, and sea gates across natural passes, shipping channels and 
canals.'' [Emphasis supplied]. The ``sea-gates'' are basically the 1965 
barriers.
    New Orleans was assaulted by Katrina storm surges coming from two 
directions, from Lake Pontchartrain to the north and from Lake Borgne 
to the east. The eastern surge overtopped the Mississippi River-Gulf 
Outlet canal [also called the MR-GO] levees and the Inner Harbor 
Industrial Canal levees, flooding much of the Ninth Ward and St. 
Bernard Parish. The eastern surge would have happened regardless of 
barriers or sea-gates.
    What does the New Orleans experience tell us about NEPA? The Act 
treats a project such as the Lake Pontchartrain project, critical to 
the survival of hundreds of thousands of people, in the same way as one 
for the expansion of a dam reservoir with no immediate impact on life 
or death issues. In New Orleans, it gave environmental zealots who, 
hopefully, may not have understood the consequences of their actions, a 
weapon with which to endanger the survival of the people of a major 
American city.
    I believe NEPA must be fine tuned. But we must be careful not to 
throw out the baby with the bathwater. The principles of NEPA are 
indeed essential to enable man to live in harmony with his environment. 
In the case of projects involving immediate life or death 
considerations like Lake Pontchartrain and Vicinity, the balancing and 
disclosure principles of NEPA should still apply but the power of the 
courts to enjoin such projects should be abrogated. A plethora of 
different approaches can be considered. For example, a certification 
program could be enacted into law wherein an agency head could certify 
such a project as critical to the preservation of human life and thus 
exempt by law from the threat of injunction without the right to any 
further judicial review by project opponents.
    The above is not new to NEPA history. Ad hoc exemptions to NEPA 
have been granted by a Congress reluctant to gamble the fate of a 
project on the role of the NEPA dice. In Life of the Land v. Brinegar, 
94 S.Ct. 558 (1973), Justice Douglas' dissent notes two instances of 
this occurrence (as might be expected, with disapproval). The first is 
the exemption from NEPA contained in the Trans-Alaska Pipeline Act. The 
second is in the amendments to the Atomic Energy Act of 1954 
authorizing the AEC to issue operating licenses regardless of NEPA. 
There may well be others. However, such individual statutory exemptions 
are cumbersome and difficult. In neither case noted in Brinegar was the 
project concerned with immediate issues of life or death. Clear 
enunciation of such a concern as the deciding standard will hopefully 
diffuse partisan squabbling and promote a sensible and workable 
approach.
    This concludes my statement. I hope I have given you a brief yet 
incisive picture of one agency component's struggle with NEPA's mandate 
and I hope my thoughts in regard to this issue will not remain my own.
    Thank you.
                                 ______
                                 

        STATEMENT OF FORMER SENATOR J. BENNETT JOHNSTON

    Mr. Johnston. Thank you very much, Madam Chairman, and I am 
particularly appreciative to Bobby Jindal, someone of whom we 
are very proud in Louisiana and who is making as great a record 
up here as he did before he came here.
    Madam Chairman, I was on the committee from which NEPA 
came, which was the old Interior Committee. I had the honor to 
chair that committee for eight years and served on it for 24 
years. And since that time, I have had a lot of experience with 
NEPA.
    First, let me allude to the Barrier Plan of which I was a 
strong supporter. I was Chairman of Energy and Water 
Appropriations at that time, which had responsibility for 
funding the Corps. Strong supporter of the Barrier Plan. I 
think it is the plan we need to go to, or a variation on that, 
to solve New Orleans' problems today. And it was stopped by the 
NEPA injunction and there was also some environmental 
opposition on the north shore, from fishermen and others. My 
colleague, Bob Winn, is a real expert on that lawsuit and he 
can tell you more about that.
    I would like to allude to a couple of problems with NEPA. 
First of all, let me say I am a strong supporter of NEPA. I 
think it was designed to make policymakers evaluate the 
environmental impact of projects and consider alternatives and 
it has done that very well. But like so much of what we have 
done in Congress, there have been unintended consequences and 
the balance needs to be corrected, in my view.
    There are four problems with NEPA that I see. First are the 
vexatious lawsuits which have been made possible by NEPA. 
Second, the excessive demands for information, which involve 
huge amounts of money and delay and third, ignored deadlines, 
and fourth, recalcitrance on the part of a few Federal 
employees. I would like to suggest, Madam Chairman and members, 
that one way to deal with this and which was dealt with very 
successfully, was by the White House Task Force on the 
streamlining of energy projects. It was created by executive 
order under Bush II and it worked very well. Bob Middleton 
headed that up and it did not have any real powers. What it 
could do is, for example, in a project where you are required 
to excessively provide information, and I am involved in a 
project now where demands have been made which could take years 
and many millions of dollars on an L&G project, which is vital 
to the nation. That kind of task force can come in and examine 
the request for information and bring in, make it more 
reasonable.
    The same thing is true of deadlines. On this project, L&G 
project, supposed to be completed by statute in 356 days. What 
do they do when they want to delay it? They stop the clock. 
What does that mean? You just stop it. They are not responsible 
to anybody and as a supplicant, that is, an applicant, you are 
not in the position to complain about stopping a clock or the 
delays. The same thing is true about recalcitrance employees 
who simply disobey the law. I could give you examples on that, 
but, I mean, we know they exist. If you have somebody, an 
ombudsman with the Federal government, which the White House 
Task Force was able to do, they can make these employees 
responsible. It could be done by statute. I do not know why the 
Administration stopped it in the second Bush. It was working 
very well, but I suspect there were complaints from some of the 
Federal agencies that did not want to be overseen, did not want 
to have to justify further delay, did not want to have to 
justify demand for unnecessary or irrelevant information. But I 
would very much like to see that reinstituted, either by 
statute or by executive order. Thank you very much, Madam 
Chairman.
    [The prepared statement of Mr. Johnston follows:]

             Statement of The Honorable Bennett Johnston, 
                Former U.S. Senator, State of Louisiana

    Chairman McMorris, Ranking Member Udall and members of the Task 
Force on Improving the National Environmental Policy Act; my name is 
Senator Bennett Johnston of Louisiana and I served in the United States 
Senate for 24 years. I served as Chairman and Ranking Member of the 
Senate Energy and Natural Resources Committee from its creation. 
Besides participation in countless battles on energy policy I have 
overseen debate on operations of Federal lands and territories of the 
United States. I hope that I can be of use to the Committee in 
discussion pertaining to the amendment of the National Environmental 
Policy Act (NEPA).
    Since its passage some 35 years ago, I believe NEPA has 
accomplished the goals for which it was designed. The legislation 
requires that the effect on the environment of every major federal 
action be assessed and that all the alternatives to that action are 
examined in advance; thereby allowing policymakers to make intelligent 
choices among the options presented before them.
    In these ensuing years many proposals have been exposed to this 
critical analysis and have been found to be environmentally, 
economically, or socially deficient resulting in their termination. 
Viewing this as a great accomplishment, I would strongly urge that this 
central purpose of the Act be preserved and if possible, streamlined 
and strengthened.
    Despite the achievements of the legislation, litigants and 
dissenting bureaucrats have exploited the bill to kill projects by 
vexatious, expensive delay, and unnecessary administrative 
requirements. These unintended consequences within the legislation are 
bad for our nation and should be remedied. To use the popular phrase, 
these actions have led to ``paralysis by analysis''.
    Separate pieces of legislation are now making their way through 
Congress that address the Nation's critical need for electric 
transmission, refineries, Liquefied Natural Gas (LNG) facilities and 
flood protection, among others. The challenge this Committee faces is 
to seek the correct balance between needed analysis against 
unnecessary, expensive and often fatal delaying tactics.
    For example, in December 2004, The National Petroleum Council, a 
federal advisory Committee of the Department of Energy, issued a report 
on U.S. refining revealing how refining investment money, as well as 
top engineering resources, have been diverted from capacity expansions 
into meeting heavy regulatory requirements. Up until the year 2000, 
refining capacity grew at about 1.5 % a year. Since 2000, capacity 
growth has dropped to less than 1% a year due to multi-billion dollar 
regulatory requirements. I bring this report to the Committee's 
attention because it contains the very best and most factual 
information on the refining industry.
    The misuse of stall tactics is not a present day phenomenon. In the 
1970's, Congress considered a bill that would have expedited critical 
energy projects. It failed by the narrowest of margins and we find 
ourselves in critical need of projects which that bill was designed to 
expedite.
    I believe that the problem with NEPA lies in four areas:
    The first of which is litigation abuse. Lawyers have learned to 
game the system by using legal proceedings to delay and thereby 
frequently frustrate the process. I am advised that when suits against 
the Corps of Engineers get to judgment the Corps wins 93% of the time. 
However, this percentage is a misrepresentation of the truth because 
many projects are simply abandoned due to the expense and delay of 
litigation.
    In New Orleans in the 1970's the ``Barrier Plan'' for the Lake 
Pontchartrain Vicinity Hurricane Protection Project was designed to 
prevent the tides and storm surges in Lake Pontchartrain and Lake 
Borgne from reaching dangerous levels. I believe those surges were one 
of the direct causes of flooding in New Orleans during Hurricane 
Katrina. I, along with most of the government jurisdictions in the 
area, including the Corps, strongly supported this proposal. However, 
the plan was stopped by a NEPA injunction along with opposition from 
local parties. The issues in that case are complicated, but the result 
of its outcome is all too plain to see, because, I believe that plan 
would have prevented the flooding in New Orleans.
    The second problem with NEPA results from excessive demands for 
information--much in the form of ``modeling'' in Environmental Impact 
Statement proceedings. I am presently involved in a NEPA proceeding 
involving an LNG terminal where the demands of agencies for irrelevant 
or unnecessary information could cost many millions of dollars and 
involve years of delay.
    The problem here is that when you are seeking a permit and agencies 
must sign off on that permit, the applicant is not in a good position 
to object to excessive demands of those agencies.
    In May of 2001 the President established by Executive Order the 
White House Task Force on Streamlining Energy Projects, operating with 
the support of the Vice President. The Task Force was directed by Bob 
Middleton, a former Chief of Staff and Project Officer at the Minerals 
Management Service. Although he was not armed with statutory powers, 
his inquiries had a great persuasive effect upon the agencies; which 
was uniformly praised by those seeking to build needed energy projects. 
Why the Task Force was not continued during this Congress is a mystery, 
but one can guess that the agencies did not want to have to justify or 
defend their exercise of discretion. Applicants for licenses are in a 
poor position to question delay or unreasonableness of the issuing 
agency. The task force could do so without prejudicing the standing of 
the applicant.
    The third problem is simple delay. Agencies often do not adhere to 
the deadlines that they set for themselves. When the government wants a 
delay, it simply ``stops the clock''. In the case of LNG projects, the 
law requires a one year application assessment process. However, this 
process is not guaranteed to reach fruition within the one year time 
limit due to lengthy delays beyond the control of the applicant. When 
additional time is needed, the agencies should have to justify their 
extension before the Task Force, if reinstated, the courts, the Council 
on Environmental Quality, or some other appropriate forum.
    Finally, there is a recurring problem of recalcitrance on the part 
of a few Federal employees who happen to oppose a project and use their 
power inappropriately to deny the permit. I am a strong supporter of 
government employees, most of whom are true public servants. Although, 
when they ignore the law and use their power inappropriately to deny a 
permit, there ought to be some redress other than the expensive and 
time consuming process of a lawsuit. Again, reinstating the Task Force, 
an overseer, or an ombudsman could prove helpful.
    In summary, I would praise the Committee for addressing the 
important issues that face the Task Force in amending NEPA. For the 
most part, NEPA has proven to be a useful and integral piece of 
legislation in protecting our environment from needless and harmful 
expansion projects. However, it has allowed certain parties who oppose 
any and all projects to litigate haphazardly in efforts to stall 
projects that are of necessity. I would suggest and support the efforts 
of Congress to halt the abuses of litigation; reduce the demands by 
agencies for information by reinstating the White House Task Force on 
Streamlining Energy Projects, which could also serve as an oversight 
group for government employees; and force an adherence to deadlines by 
Agencies.
    Thank you again for this opportunity and I would be happy to answer 
any questions that the Committee may have.
                                 ______
                                 
    [Senator Johnston's response to questions submitted for the 
record follows:]

                            December 1, 2005

The Honorable Cathy McMorris
United States House of Representatives
Committee on Resources
Washington, DC 20515

Dear Chairwoman McMorris:

    Thank you for the opportunity to testify before your committee on 
November 10, 2005. In response to your questions I submit the 
following:
1.  ``What effect has NEPA litigation had on Louisiana?''
    As I testified before the committee, a NEPA injunction stopped the 
``Barrier Plan'' from going forward. Its construction might have 
prevented the flooding in New Orleans.
2.  ``Do you believe that NEPA-related litigation will negatively 
        impact the post hurricane reconstruction projects like an 
        integrated plan for flood control and protection against a 
        Category 5 hurricane?''
    I do not believe it is possible to calculate the effect that NEPA-
related litigation can have on post-hurricane reconstruction projects.
    Please feel free to call upon me if you have any further questions.

                          Respectfully yours,

                          J. Bennett Johnston

             STATEMENT OF ROBERT E. WINN, PARTNER, 
                SESSIONS, FISHMAN & NATHAN, LLP

    Mr. Winn. Thank you, Madam Chairman. I am here today to 
make some personal observations about NEPA litigation and the 
personal observations about the effect of NEPA litigation. I 
evacuated New Orleans on the morning before the hurricane, 
Hurricane Katrina, struck New Orleans. I went to Alexandria, 
Louisiana. While there, I witnessed and observed a lot of the 
same television programming that you all observed and was 
horrified at what I saw.
    Almost as a sort of therapy, I decided to write an article 
which I circulated to a number of friends. I entitled the 
article, ``New Orleans, America's Pompeii. Did 
environmentalists and the Corps of Engineers destroy the 
city?'' Well, in the circulation of my article to a lot of 
friends, one was a practicing attorney here in the District at 
Arent Fox, who followed it to one of the committees, Senate and 
House committees, actually, and thus I have been invited to 
appear before you to talk about the effects of NEPA litigation, 
particularly the ``Save our Wetlands v. Rush'' case of 1977.
    My home in New Orleans was, is, at ground zero for 
Hurricane Katrina. It is located in the northwest corner of the 
city, about 100 yards back from the levee built by the Corps of 
Engineers to protect the city from hurricanes. I might add that 
the 17th Street Canal, which has been spoken of, the break in 
the 17th Street Canal, occurred about 1200 yards as the crow 
flies, from my front door. A lot has been said and a lot has 
been written about the devastation, and it is horrendous 
devastation, in New Orleans East and in the lower 9th Ward. I 
can tell you, too, though, that Lakeview, an area about four to 
five blocks from where I live, Lakeshore, some 15,000 homes 
minimum have been destroyed. It is a wasteland. I do not think 
there is any chance or hope those people ever have of 
recovering from it.
    I should also point out that it was not a levee break but a 
failure of the flood wall on the 17th Street Canal that 
resulted in all the flooding that you observed on television 
that engulfed Charity Hospital, the Superdome and spread into 
Midcity and uptown New Orleans.
    I am not here, by the way, I am not here to recount the 
damage and the extent of the devastation to New Orleans. But I 
am here to suggest that the NEPA litigation, the case that I 
just referred to, is responsible for and could arguably be said 
to have caused, at least greatly contributed to the devastation 
in the City of New Orleans.
    When I moved to the Lakefront in New Orleans in 1977, there 
was a levee in front of my house about 100 yards away, about 
ten or 11 feet high. After a few years, that levee height and 
its width was increased to about 22 or 23 feet. I was a little 
bit disappointed, because my view was curtailed and, of course, 
there is a lot of inconvenience while they built that levee. 
Unfortunately, there had been a dispute between the Corps of 
Engineers and the environmentalists. The Corps of Engineers had 
wanted to build a Barrier Plan, a system of locks and dams and 
floodgates to protect against storm surges coming into Lake 
Pontchartrain and threatening the city. Unfortunately, the 
environmentalists prevailed and they were able to have the 
construction of that system of floodgates enjoined, even though 
the Corps made it very clear that the increased size of the 
levees, even to 22, 23 feet, would in no way be sufficient to 
protect against a serious storm, what we would now call a large 
category three or category four or five storm.
    The environmentalists at the time were very concerned about 
salt water intrusion into the lake. They appeared to be much 
concerned about the welfare and the habitats of gulf fish and 
alligators than the people of New Orleans. The 
environmentalists prevailed in the dispute by utilizing various 
procedural instruments in the law. They made no claim that the 
Barrier Plan, that the floodgates would not work. They 
complained, rather, that the environmental impact statement 
prepared by the Corps of Engineers and even modified and 
revised by the Corps of Engineers was inadequate. In fact, the 
trial judge was very concerned and expressed his chagrin at 
what he considered an inadequate presentation by the Corps of 
Engineers' environmental impact statement.
    So in 1977, the Lock and Dam Project as it was called then, 
or the Floodgate Project, was enjoined. The Corps did not 
appeal and rather it chose to abandon the Lock and Dam 
hurricane protection. It elected instead to increase the size 
of the levee. The Corps' rationale seemed to be, and this was 
discussed back in New Orleans at the time, well, we have $100 
million to spend. The environmentalists will not let us do what 
we think will be required. We will go ahead and spend the money 
anyway and then they increased the levee size.
    Ms. McMorris. Mr. Winn, I need to ask you to wrap up.
    Mr. Winn. All right, unfortunately, the NEPA litigation, 
which I said is not a reported decision, but it is available. 
It is available and I provided the Internet address for you and 
I encourage you to read it, because it makes it very clear that 
it was the Judge's concern about procedural objections to the 
impact statement that stopped and enjoined the project.
    [The prepared statement of Mr. Winn follows:]

                 Statement of Robert E. Winn, Partner, 
        Sessions, Fishman & Nathan, LLP, New Orleans, Louisiana

    My home in New Orleans was (is) at ground zero for Hurricane 
Katrina. It is located at the northwest corner of New Orleans, facing 
Lake Pontchartrain. It is located about 100 yards from the levee 
constructed by the Corps of Engineers to protect New Orleans from 
flooding. My home is on the rim of the bowl where New Orleans is 
located.
    Additionally, my home is about 1200 yards, as the crow flies, from 
the 300 foot breach in the 17th Street Canal floodwall. Facing the lake 
from my front steps, the breach in the 17th Street Canal floodwall was 
to the southwest of my home. Fortunately my family and I evacuated New 
Orleans for Alexandria, Louisiana in the early morning of Sunday, 
August 28, 2005. Katrina made land fall southeast of New Orleans the 
morning of Monday, August 29, 2005.
    My home is in West Lakeshore, an area adjacent to Lakeview, about 6 
blocks away from my home. Although a lot has been said about the 
devastation in the lower 9th Ward and in Eastern New Orleans, there has 
been relatively little mention of the devastation of the Lakeview area. 
Approximately 15,000 homes in Lakeview were flooded at depths up to 10 
feet, and the entire area remains completely uninhabitable--a 
wasteland; most of the homes will have to be demolished. The damage to 
Lakeview resulted from the breach of the 17th Street Canal. 
Significantly, the flooding of mid-town and down-town New Orleans, and 
large portions of uptown and areas of Jefferson Parish was caused by 
the 17th Street Canal break. The water engulfing Charity Hospital and 
threatening the Superdome was from the 17th Street Canal.
    I am here today not to recount the damage to New Orleans, but to 
provide you some history, from a personal viewpoint, about the 
hurricane protection for New Orleans and particularly the city's 
continuing vulnerability to catastrophic flooding, arguably the result 
of NEPA Litigation.
    When I moved to the New Orleans Lakefront in 1977 there was a levee 
about 12 feet high, a hundred yards or so from my home. Standing at the 
front door, I could see over the levee to the park on the other side 
and see sailboats on the lake. A few years later, the early 80's as I 
recall, the levee size was substantially increased in height and width, 
to a height of approximately 22-23 feet. I regretted the loss of the 
view of the lake, but I was content with the idea that I was benefited 
by increased protection from flooding caused by a hurricane.
    I remember hearing about a dispute between the U.S. Corps of 
Engineers and various environmental groups relating to the levee 
construction. The Corps wanted to construct a lock and dam project with 
floodgates to control the flow or the surge of water from Lake Borgne 
through the Chef Menteur and Rigolets passes into Lake Pontchartrain 
and into New Orleans. The environmentalists worried about damage to the 
ecology. It seemed they were particularly concerned about endangering 
the habitats of garfish and alligators.
    Somehow the environmentalists prevailed, and the lock and dam 
project with the floodgates was abandoned and the Corps of Engineers 
opted instead for a ``high barrier plan'', whereby the levees would be 
strengthened and raised. Earthen levees protect against flooding from 
the Mississippi River and the lake. An essential and integral part of 
the system are the floodwalls bordering drainage canals running through 
the city and into the lake. It would be a mistake to say there are 
levees along the drainage canals. The canals are hemmed in by earthen 
walls, perhaps reinforced with sheetpile and sometimes topped with 
concrete. The breach in the 17th Street Canal which caused the great 
devastation occurred on the eastern or New Orleans side of the canal, 
about 600 yards from where the canal enters Lake Pontchartrain.
    It wasn't until some years later, perhaps 1991, that I learned just 
how the environmentalists had prevailed in their dispute with the Corps 
of Engineers. They utilized provisions of the National Environmental 
Policy Act (NEPA) and its procedural requirements to stop construction 
of a lock and dam project designed to control storm surges into Lake 
Pontchartrain. The Corps had studied, planned, and in the mid 70s was 
in the process of constructing a series of locks, dams, and floodgates 
at the Chef Menteur and Rigolets passes connecting Lake Pontchartrain 
to Lake Borgne and the Gulf of Mexico. The project would control or at 
least mitigate any storm surge. Environmentalists sued using NEPA and 
sought to enjoin construction of the project. After a trial in the 
Eastern District of Louisiana, by order of December 30, 1977 the Corps 
was enjoined from any further construction at the Chef and Rigolets. 
The court's order specifically cited problems with the Corps' 
environmental impact statement as the reason for the injunction.
    The Corps did not appeal and chose to abandon its lock and dam 
hurricane protection project. The Corps elected instead to increase the 
size of the levees even though the Corps acknowledged that increasing 
the levee size would not be sufficient to protect against a massive 
storm, what we would now refer to as a large category 3 or a category 4 
or 5 hurricane.
    In the early 1990s I enrolled in the Masters Program in 
Environmental Law at Tulane University Law School. I received my 
Masters in Environmental and Energy Law in May of 1992. One of the 
courses taken involved NEPA, and the professor put a number of sample 
environmental impact statements on reserve in the library for students 
to review as models and guides. One of the environmental impact 
statements was the Corps' high barrier plan. The Corps readily admitted 
that the increased levee size would not protect the city from a large 
category 4 or 5 storm and it seemed that the Corps' rationale for 
proceeding with the high barrier plan was simply that it had $100 
million to spend and it might as well use it to increase levee size. I 
remember feeling that I had lost my view of the lake for no good 
purpose--the old levee was sufficient for all ordinary hurricanes, but 
not ``the big one''. I lost my view of the lake and experienced the 
inconvenience, noise, and dirt and dust of the levee construction for 
no real purpose because the increased levee size would not protect 
against ``the big one''.
    Would the lock and dam project undertaken by the Corps have 
prevented or lessened the devastation caused by Katrina? Obviously the 
Corps of Engineers thought so because it was proceeding with 
construction until it was enjoined by the United States District Court 
For the Eastern District of Louisiana in 1977. The precise reason 
assigned by the trial judge was that the final environmental impact 
statement presented by the Corps of Engineers was inadequate because of 
omissions and procedural inadequacies. The court specifically found in 
its concluding paragraph, highlighted no less, that its opinion 
enjoining further work on the Corps' project ``should in no way be 
construed as precluding the Lake Pontchartrain Project as proposed or 
reflecting on its advisability in any manner''. The court's opinion was 
strictly limited to its finding that the environmental impact statement 
of August 1974 for the project was legally inadequate. The district 
judge continued ``Upon proper compliance with the law with regard to 
the impact statement this injunction will be dissolved and any 
hurricane plan thus properly presented will be allowed to proceed''. 
For some reason, as is apparent from the judge's opinion, the Corps 
failed to adequately address the court's concerns about the 
environmental impact statement. For some reason the Corps, even after 
the injunction, failed to remedy the deficiencies in the Final 
Environmental Impact Statement (FEIS). What is clear is that the high 
barrier plan implemented by the Corps in lieu of the lock and dam plan 
did not work, resulting in the horrendous consequences to the City of 
New Orleans and its people.
    The court's opinion in civil action 75-3710, consolidated with 
civil action number 77-976, is not a published opinion but it is 
available at http://www.saveourwetlands.org/77‑Schwartz.htm. The 
action is entitled Save Our Wetlands, Inc. et al vs. Rush et al.
    The opinion presents a very readable and straight forward 
discussion of how a project so potentially important to the welfare of 
the City of New Orleans was sidetracked by environmentalists using 
procedural objections to the environmental impact statement submitted 
by the Corps of Engineers. Indeed the Corps, its lawyers, and 
environmental staff may deserve some blame. The law should be 
reconsidered to provide protection against the misuse of procedural 
provisions. At the very least, the required cost/benefit analysis 
should require a broader and more comprehensive weighing of costs and 
benefits. At the trial of the injunction the economic benefit of 
development and urbanization was weighed against potential harm to the 
ecology of the Lake Pontchartrain estuary. Somewhere, somehow, the law 
must insure a full assessment of damages and potential consequences to 
include such potential benefits as the protection of the lives and 
property of the people of New Orleans.
    We do not know if the Corps' plan or any such plan for locks, dams 
and flood gates would work. We do know that the Corps thought it would 
work and was in the process of investing millions of dollars of 
taxpayer funds when its construction was stopped. In recent weeks there 
have been references to a floodgate system that protects the 
Netherlands. I have also heard that Italian engineers are considering a 
system of flood gates to protect Venice.
    One thing should be evident. Although larger and stronger levees 
and floodwalls should be part of any hurricane protection system, no 
system of levees and floodwalls can ever be fully adequate. Just as it 
would be impossible to have enough police patrols to protect against 
any terrorist attack, anywhere, it is submitted that levees and 
floodwalls cannot afford adequate protection to New Orleans. A chain is 
only as strong as its weakest link. In addition to the levees on the 
Mississippi and Lake Pontchartrain there are 200 miles of floodwalls 
flanking drainage and navigation canals in New Orleans. There are 2 
sides to every canal, 400 miles of floodwall. The wall on the western 
side of the 3 to 4 mile long 17th Street Canal could just as easily 
have failed as the wall on the eastern side which did fail. Subsidence 
and the unusual qualities of Louisiana soils make for a dynamic and 
ever changing situation which would require constant monitoring and 
revision of floodwalls and levees.
    Another system, perhaps the one decided upon by the Corps of 
Engineers being constructed in the 1970's until enjoined by 
environmentalists using NEPA, should be employed along with the 
upgrading of levees and floodwalls to protect New Orleans. The people 
of New Orleans and the American people should not be expected to just 
hope that it will be a hundred years before another ``big one'' strikes 
New Orleans.
    The subject under consideration by your committee is ``NEPA 
Litigation: The Causes, Effects and Solutions''. The Save Our Wetlands 
vs. Rush case is an example of NEPA Litigation wherein one judge, a 
group of environmentalists and lawyers for environmental organizations 
and the Corps of Engineers were able to scuttle a long studied project 
of the Corps for hurricane protection of New Orleans. Is the massive 
devastation caused by Hurricane Katrina an effect of that NEPA 
Litigation?
    See: The Creeping Storm, by Greg Brouwer, June 2003, Civil 
Engineering; http:www.pubs.asce.org/ceonline/ceonline03/0603feat.html.
    See: New Orleans, America's Pompeii, Did Environmentalists and the 
Corps of Engineers Destroy the City? By Robert E. Winn, September 2005
                                 ______
                                 

   Response to questions submitted for the record by Robert E. Winn, 
    Partner, Sessions, Fishman & Nathan, LLP, New Orleans, Louisiana

    In response to your questions I submit the following:
    1. As a lawyer and someone from the area affected by the flooding, 
in your opinion, do you think that the court properly balanced the need 
to protect the garfish with the need to protect against property damage 
and other adverse affects to people of New Orleans?
    I do not believe the court properly balanced the needs of marine 
life against the welfare of citizens of New Orleans. The problem with 
NEPA is that it permits an unelected judge to thwart the will of the 
Congress and Corps under the guise of a procedural ruling. Moreover, 
the court's decision was dependent upon the apparently less than 
stellar efforts of counsel. The garfish were represented, not the 
people of New Orleans.
    2. Do you believe that NEPA-related litigation will negatively 
impact the post hurricane reconstruction projects like an integrated 
plan for flood control and protection against a Category 5 hurricane?
    I anticipate NEPA-type litigation will plague post-hurricane 
reconstruction projects and future flood control.
    3. You note that the SOWL case is an example of a Corps project 
that had been studied and studied being scuttled by NEPA litigation. 
How can the law be improved to prevent this from happening?
    Amend NEPA to not allow such easy access to federal jurisdiction. 
Why not return to tort and nuisance law where the constituents are the 
citizens? Give the environmentalists great administrative access, but 
not the hammer of a federal injunction.
                                 ______
                                 
    Ms. McMorris. Thank you. Ms. Richards?

STATEMENT OF BRENDA RICHARDS, FEDERAL LANDS COMMITTEE CHAIRMAN, 
   IDAHO CATTLE ASSOCIATION AND IDAHO DIRECTOR, PUBLIC LANDS 
                            COUNCIL

    Ms. Richards. Chairman McMorris and members of the Task 
Force, I would like to thank you for giving me this opportunity 
to discuss NEPA. My name is Brenda Richards. I am testifying 
today on behalf of the Public Lands Council, the National 
Cattlemen's Beef association and Idaho Cattle Association. 
Alongside my husband and three sons, I operate a family owned 
cattle ranch in Reynolds Creek, Idaho. My sons follow in the 
footsteps of five generations of ranchers. We want nothing more 
than to be able to pass this business on to our sons so this 
heritage can continue. However, our ability to do this hangs in 
a delicate balance. No matter what level of planning we 
undertake, the business that we have worked on and built up 
over the years could be taken away from us with the stroke of a 
judge's pen.
    In my county, Owyhee County, the Federal government owns 
over 76 percent of the land. Public lands are critical to the 
functioning of the livestock industry in the west. Federal laws 
such as NEPA allow individuals in extremist organizations in 
Idaho and across the west to gain control of the Federal lands 
and take the decisionmaking ability away from the Federal 
agencies. Much of this problem could be remedied by clarifying 
NEPA and other such laws. Recent litigation in southwest Idaho 
illustrates this point.
    On July 29, Judge Winmill of the Federal District Court in 
Idaho, entered an injunction against the BLM enjoining all 
grazing on 28 allotments divided among 11 permittees in the 
Jarbidge Resource Area until a single EIS and record of 
decision is completed for the grazing. This is ``Western 
Watersheds Project v. Bennett.'' This injunction would have 
removed almost 100,000 AUMs from public lands, affecting 
approximately 800,000 acres.
    The Court greatly overstepped its bounds in issuing this 
decision. According to the Court, the BLM found the 
Fundamentals of Rangeland Health to have been violated for all 
28 of the allotments. In actuality and even by the Court's 
later admission, the BLM standards were not met on only 14 of 
the 28 allotments. And more importantly, the determinations of 
standards not met and livestock a factor do not mandate the 
shutdown of grazing.
    If the injunction were to have remained in place, most of 
the 11 permittees would either have been forced to liquidate 
their herds or completely sell their ranches. Because of these 
fears, the permittees felt their only option was to enter into 
a settlement agreement in which their permitted numbers were 
greatly reduced and the activist anti-grazing organization was 
handed a significant role in management of the allotments. This 
court case overturned a significant portion of the grazing 
industry in this area, simply because the government failed to 
complete paperwork required by NEPA.
    We strongly support multiple use sustained yield of public 
lands and the related consideration of environmental factors in 
processing grazing permits. However, we also strongly believe 
that a more sensible balance must be struck between 
environmental paperwork and the actual conservation as this 
dynamic relates to grazing.
    Given scarce financial resources that the land management 
agencies have to carry out this important work, it only makes 
sense for the funding to be focused as much as possible on 
producing tangible results by managing the resources on the 
ground. Part of the agencies' challenge in completing the 
environmental documentation can be addressed by more closely 
tailoring the paperwork requirements to the actual 
environmental profile presented by grazing or an activity 
ancillary to grazing. We strongly urge this Committee to 
consider enacting legislation that provides for categorical 
exclusions to be available for such classes of grazing 
activities.
    We also believe that categorical exclusion should be made 
available for range improvement, such as the installation of 
fencing or water facilities. These activities have a minimal 
impact on the land, but can play a critical role in putting in 
place a well managed grazing program that results in important 
benefits for the resources.
    Additionally, NEPA as it currently stands, prevents 
permittees from substantively intervening in litigation in 
which their grazing permits are in question. The consequences 
of an agency failing to adequately conduct NEPA never wholly 
falls on the agency. Rather, it is the permittee who bears the 
brunt. Because of this, they should be able to fully engage in 
the courtroom when their permits are at risk.
    An issue that could be key in preventing the devastating 
litigation would be in clarifying in code that the agency needs 
to be allowed to exercise its expertise on its own NEPA 
documents and in its own administrative appeal process before 
the issue is taken to Federal court. An exhaustion of 
administrative remedies must occur.
    In conclusion, as a rancher, I support this Task Force in 
its efforts to review and revise NEPA. Members of the Idaho 
Cattle association, the Public Lands Council and the National 
Cattlemen's Beef Association understand that environmental 
impacts of Federal activities should be considered prior to 
undertaking the activity and the public should be given the 
opportunity to participate in the process for considering these 
environmental impacts.
    However, in the year since NEPA has been enacted, it has 
been applied in a way that must be at odds with the intent of 
the original authors of the Act. I encourage you to move 
forward so that my family and countless other ranching families 
across the west can continue our rich heritage for future 
generations. Thank you.
    [The prepared statement of Ms. Richards follows:]

    Statement of Brenda Richards, Federal Lands Committee Chairman, 
   Idaho Cattle Association, and Idaho Director, Public Lands Council

    Chairman McMorris and members of the Task Force, thank you for 
giving me this opportunity to discuss the National Environmental Policy 
Act. My name is Brenda Richards. I currently serve as Federal Lands 
Committee Chairman for the Idaho Cattle Association, a statewide 
organization representing the interests of Idaho's ranchers, and as the 
Idaho Director to the Public Lands Council, a national organization 
representing sheep and cattle ranchers in 15 western states whose 
livelihood and families have depended on federal grazing permits dating 
back to the beginning of last century. I am testifying today on behalf 
of the Public Lands Council (PLC), National Cattlemen's Beef 
Association (NCBA), and the Idaho Cattle Association (ICA).
    Alongside my husband and three sons, I operate a family-owned 
cattle ranch in Reynolds Creek, Idaho. My sons follow in the footsteps 
of five generations of ranchers. It is at the front of our minds every 
day, as we work on our ranch, that we want nothing more than to be able 
to pass this business on to our sons so that this heritage can 
continue. However, our ability to do this hangs in a delicate balance. 
No matter what level of planning we have undertaken, the business that 
we have worked on and built up over the years could be taken away from 
us with the stroke of a judge's pen.
    In a state like Idaho, it would be impossible to sustain a ranching 
operation, such as ours, without the use of public lands for grazing. 
In my county, Owyhee County, the federal government owns over 76% of 
the land. Nearly 40% of all cattle raised in the West spend some of 
their lives on public land allotments. The public lands are critical to 
the functioning of the livestock industry in the west. There are 
individuals and extremist organizations in our state and across the 
West who know this fact and have learned how to manipulate and distort 
the law in order to achieve their activist, destructive agendas. 
Through federal laws such as NEPA, they have essentially gained control 
of the federal lands and have taken the decision-making ability away 
from the federal agencies. In a system that is supposed to be fair and 
impartial, they have found judges who are almost certain to rule in 
their favor. Much of this problem could be remedied by clarifying NEPA 
and other such laws.
    Recent litigation in southwest Idaho illustrates this point. On 
July 29, Judge Winmill of the Federal District Court in Idaho entered 
an injunction against the BLM enjoining all grazing on 28 allotments 
divided amongst eleven permittees in the Jarbidge Resource Area until a 
single EIS and Record of Decision is completed for the grazing (Western 
Watersheds Project v. Bennett, No. 04-0181). This injunction would have 
removed almost 100,000 AUMs from public lands affecting approximately 
800,000 acres.
    The court greatly overstepped its bounds in issuing this decision. 
According to the court, BLM found the Fundamentals of Rangeland Health 
to have been violated for all 28 of the allotments. In actuality, BLM 
found only in a minority few that some standards were not met and that 
livestock was a cause, and that only occurred, even by the Court's 
admission, on 14 of the 28 allotments. More importantly, the 
``determinations'' of standards not met and livestock a factor, only 
required of the BLM to make corrective action by the start of the next 
grazing season through issuance of the Final Grazing Decisions, which 
is precisely what BLM did. The rules do not mandate a shutdown of 
grazing if a ``determination'' is made of standards not met and 
livestock a factor.
    In issuing new grazing permits, BLM issued four Environmental 
Assessments. The Jarbidge Resource Management Plan provided that 
increases in grazing would not be authorized until ``wildlife goals and 
watershed needs'' were satisfied. In spite of the facts, the court 
ruled that BLM violated NEPA and FLPMA. As most relevant here, the 
court ruled that BLM violated NEPA by failing to consider the 
cumulative impacts of reauthorized grazing; and, by issuing an EA and 
not EIS in the face of the uncertain information about the status of 
the sage grouse and incomplete details regarding compliance with the 
Fundamentals of Rangeland Health.
    If the injunction were to have remained in place, most of the 
eleven permittees would either have been forced to liquidate their 
herds or sell out completely. The impacts from this would have 
increased exponentially across the area--one of these affected 
permittees alone has four sons and their families working on the family 
ranch. Because of these fears, the permittees felt their only option 
was to enter into a settlement agreement in which their permitted 
numbers were greatly reduced and the activist anti-grazing organization 
was handed a significant role in the management of the allotments. A 
significant portion of the grazing industry in southwest Idaho, and the 
families and communities that depend on it, was overturned through this 
court case simply because the government failed to complete the 
paperwork required by NEPA.
    Grazing permit administration remains a challenge that trips up 
government agencies in other respects as well. Because the agencies 
were not able to complete NEPA documentation in time to renew expiring 
permits, industry was forced to seek relief from Congress which 
fortunately responded. Fortunately, Congress has enacted a number of 
provisions intended to address this. The agencies are running behind 
the schedule by which Congress expected them to make up their backlog 
in NEPA for grazing permits.
    As a general matter, PLC, NCBA, and ICA do not seek relief from 
NEPA or other environmental laws. On the other hand, it seems wrong to 
us that our members' livelihoods should be interrupted and harmed 
because the agencies are not able to complete their statutorily 
mandated paperwork. It is hard to imagine that the authors of NEPA 
would have intended to harm personal businesses, lives, and 
communities. But the cumbersome consideration of environmental 
consequences mandated by NEPA leaves public land ranchers on a 
precipice of uncertainty.
    This cannot be allowed to be the standard of business for the 
government. Businesses, families, and communities cannot fail because 
the government does not complete paperwork. Particularly, paperwork 
that does little to affect conservation on the ground, and certainly 
adds little to a ranching operation cannot be allowed to harm the 
public. We strongly support the multiple use sustained yield of public 
lands and the related consideration of environmental factors in 
processing grazing permits. However, we also strongly believe that a 
more sensible balance must be struck between environmental paperwork 
and actual conservation as this dynamic relates to grazing. Given the 
scarce financial resources land managing agencies have to carry out 
their important work, it only makes sense for funding to be focused as 
much as possible on producing tangible results by managing the resource 
on the ground.
    Part of the agencies' challenge in completing environmental 
documentation can be addressed by more closely tailoring the paperwork 
requirements to the actual environmental profile presented by grazing 
or an activity ancillary to grazing. For example, it seems irrational 
to produce full-scale NEPA documentation for longstanding continuing 
activities that have long-ago made their imprint on the landscape. Once 
the environmental baseline has been established in environmental 
analysis and no new information emerges as demonstrated through a 
program of regular monitoring, what sense does it make to spend scarce 
federal resources on additional NEPA documentation? We strongly urge 
this Committee to consider enacting legislation that provides for 
categorical exclusions to be available for such classes of grazing 
activities.
    We also believe that categorical exclusions should be made 
available for range improvements such as installation of fencing or 
water facilities. These activities have a minimal impact on the land 
but can play a critical role in putting in place a well-managed grazing 
program resulting in important benefits for the resources.
    The Jarbidge litigation is just another of many examples in which 
the courts, and activist judges have trumped Congress. Last year, 
Congress enacted P.L. 108-108. In Section 325 of this law, Congress 
directed that existing grazing levels be maintained and permits renewed 
until the NEPA process was completed. In the Jarbidge case, the court 
overturned the intent of Congress by enjoining all grazing pending 
completion of the NEPA process. At the very minimum, the court should 
have permitted grazing to continue under the terms and conditions 
contained in the pre-existing permits until the agencies were able to 
complete the required NEPA documentation.
    Additionally, NEPA, as it currently stands, prevents permittees 
from substantively intervening in litigation in which their grazing 
permits are in question. Currently in Idaho, permittees are facing two 
different court cases in which they have not been allowed meaningful 
intervening status. Even though Congressional findings of NEPA, and the 
other statutes, seem to protect the interests of livestock producers, 
permittees have only been allowed to intervene in the remedies portion 
of the case. Because their livelihoods are at stake, they should be 
allowed to intervene in the merits of the case as well. NEPA should be 
amended to make clear that permittees, contractors, or licensees should 
be able to participate and adequately defend their interests in court. 
As illustrated in the examples above, the consequences of an agency 
failing to adequately conduct NEPA never wholly falls on the agency. 
Rather, it is the permittee who bears the brunt. Because of this, they 
should be enabled to fully engage in the courtroom when their permits 
are at risk.
    An issue that could be key in preventing the devastating litigation 
would be in clarifying in code that the agency needs to be allowed to 
exercise its expertise on its own NEPA documents in its own 
administrative appeal process before an issue is taken to Federal 
Court. An exhaustion of administrative remedies must occur.
    In conclusion, the Public Lands Council, the National Cattlemen's 
Beef Association, and the Idaho Cattle Association appreciate the 
important public policy goals served by the National Environmental 
Policy Act. We understand that environmental impacts of federal 
activities should be considered prior to undertaking the activities, 
and the public should be given the opportunity to participate in the 
process for considering the environmental impacts. However, in the 
years since NEPA has been enacted, it has been applied in a way that 
must be at odds with the intent of the original authors of the Act.
    Since the mid-19th century, ranchers have depended on the vitality 
of America's rangelands for their survival, and as a result, ranchers 
have developed an innate love for the land and personal stake in its 
preservation. Environmental services provided by ranching operations 
include open spaces, wildlife habitat, clean air, clean water, and fire 
and weed control. Today's ranchers represent some of America's last 
living embodiments of true environmentalism. The American public and 
the ranching industry benefit tremendously from the continued economic 
vitality of the public land ranching industry.
    As a rancher, I support this Task Force in its efforts to review 
and revise NEPA. I encourage you to move forward so that my family and 
countless ranching families across the West can continue our rich 
heritage for future generations.
                                 ______
                                 
    Ms. McMorris. Thank you very much. Mr. McGarity?

               STATEMENT OF THOMAS O. McGARITY, 
               UNIVERSITY OF TEXAS SCHOOL OF LAW

    Mr. McGarity. Madam Chairman and members of the Task Force, 
I thank you for the opportunity to be here today. My name is 
Tom McGarity. I teach at the University of Texas School of Law. 
I am also President of the Center for Progressive Reform, which 
is a nonprofit research and educational organization dedicated 
to protecting health, safety and the environment through and 
commentary. CPR prepared a report on the Katrina levees. That 
report is available on our website and I have some copies here 
if people are interested, I can provide them for you.
    CPR scholar Joe Feller of Arizona State University School 
of Law contributed to the portion of my testimony, my written 
testimony, which was devoted to grazing rights and Tom Lustig 
of the National Wildlife Federation is here to answer detailed 
questions, if you have detailed questions, about the grazing 
aspect of my testimony.
    First, with all respect, having studied in considerable 
detail the history of the NEPA litigation and the actuality of 
the failure of the levees, NEPA did not cause these levees in 
New Orleans to fail. In the wake of Hurricane Betsy, there was 
a major project to protect New Orleans. There were two options, 
the High Level Option and the Barrier Option that we have heard 
described already. Both options, and let me be clear on this, 
both options were designed only to protect against a standard 
project hurricane, which was a hurricane that was simulated at 
that time that would have occurred ever 200 to 300 years and 
which, in modern terms, is roughly equivalent to a fast moving 
category three hurricane. So the Barrier Project would not have 
prevented the category four hurricane from crossing over at 
least into Lake Pontchartrain, at least to some extent.
    The Corps initially decided to implement the Barrier 
Option. That was enjoined in a lawsuit on December 30, 1977. 
The Corps could have responded to that injunction easily within 
a year, done the studies and gotten the Barrier Option back on 
track. But as they went back to the drawing board, and this is 
the history of the matter, they went back to the drawing board, 
they realized the Barrier Option, which was already in 
progress, was costing a whole lot more than they had 
anticipated. And the reason was they were having to condemn 
property because private landowners were opposed to it and were 
demanding, to protect their property rights, they were 
demanding a high amount of compensation for the land where they 
needed to build the levees.
    The Corps ultimately decided to implement the High Level 
Plan with the existing levees, because it was considerably less 
expensive. The levees did not fail, or the Barrier Plan would 
not have protected anything in New Orleans east of the 
Industrial Canal. All of that flooding happened out of Lake 
Bourne, which is on the other side of what would have been the 
floodgates. The floodgates could have even exacerbated that 
flooding. But all that devastation, the project would not have 
prevented at all.
    The devastation that did happen up the 17th Street and 
London Avenue Canals, it is now becoming very clear in light of 
the recent reports from the National Science Foundation, were 
caused by poor construction and design. Briefly, I would like 
to mention that NEPA has not, in my view, unduly interfered 
with proper issuance of BLM and Forest Service grazing permits 
as some critics have suggested. We need site specific analysis 
of the impacts of grazing or any other permitted activities on 
public lands. The example of the Comb Wash grazing allotment 
that I set out in my prepared testimony is a very good example 
of that. In the 35 years since the enactment of NEPA, only 
three cases have occurred in which livestock were ordered out 
of an area in connection with NEPA litigation. In all three 
cases, the agency not only failed to comply with NEPA, but 
there was also proof that the livestock grazing was causing 
serious damage. There has never been a case in which livestock 
have been removed solely because the agency failed to comply 
with NEPA.
    By performing the critical function of policing agency 
compliance with NEPA's modest analytical requirements, private 
litigation is insuring that Federal agency decisionmaking 
continues to be sensitive to environmental concerns. This is 
what the American public expects and Congress should not 
undermine that expectation by amending this bulwark of 
environmental law. Thank you very much.
    [The prepared statement of Mr. McGarity follows:]

 Statement of Thomas O. McGarity, W. James Kronzer Chair in Trial and 
 Appellate Advocacy, University of Texas School of Law, and President, 
                     Center for Progressive Reform

    Madame Chairman, Ranking Member Udall, and Members of the Task 
Force, thank you for the opportunity to testify before you today. My 
name is Tom McGarity. I hold the W. James Kronzer Chair in Trial and 
Appellate Advocacy at the University of Texas School of Law. I have 
taught environmental law for more than 27 years at the University of 
Kansas and the University of Texas. I have written law review articles 
on the National Environmental Policy Act (NEPA), and I have advised 
counsel in NEPA litigation. With my Co-Author John Bonine of the 
University of Oregon School of Law, I wrote one of the early casebooks 
on Environmental Law, and that casebook provided a comprehensive 
overview of all aspects of NEPA litigation.
    I am also the President of the Center for Progressive Reform (CPR). 
Founded in 2002 as the Center for Progressive Regulation, CPR is a 
501(c)(3) nonprofit research and educational organization dedicated to 
protecting health, safety, and the environment through analysis and 
commentary. CPR is comprised of university-affiliated academics with 
expertise in the legal, economic and scientific issues related to 
regulation of health, safety and the environment. CPR believes sensible 
safeguards in these areas serve important shared values, including 
doing the best we can to prevent harm to people and the environment, 
distributing environmental harms and benefits fairly, and protecting 
the earth for future generations. CPR further believes that people play 
a crucial role in ensuring both private and public sector decisions 
that result in improved protection of consumers, public health and 
safety, and the environment. Accordingly, CPR supports ready public 
access to the courts, enhanced public participation and improved public 
access to information.
    Last September, CPR published a report on the New Orleans levees in 
the aftermath of Hurricane Katrina, entitled ``Broken Levees: Why They 
Failed,'' that is available on the CPR website at: http://
www.progresivereform.org. CPR Scholar Joe Feller of Arizona State 
University College of Law contributed the portion of this testimony 
devoted to grazing on public lands.

NEPA Litigation Plays a Critical Role in Protecting Our Shared 
        Environment.
    The very first law that President Nixon signed to initiate the 
``environmental decade'' of the 1970s was the National Environmental 
Policy Act (NEPA), and that statute is frequently referred to as the 
``Magna Carta'' of American Environmental Law. The primary vehicle 
through which NEPA attempts to accomplish its salutary purposes is its 
requirement that all federal agencies prepare environmental impact 
statements (EISs) for ``proposals for legislation and other major 
federal actions significantly affecting the quality of the human 
environment.'' 42 U.S.C. Sec. 4332(2)(C). Because of NEPA's 
constitution-like language and breadth of vision, the meaning of these 
words only became apparent after several years of litigation gave them 
form and content. Once the Council on Environmental Quality promulgated 
comprehensive implementing regulations in 1978, NEPA's EIS requirement 
became part of most agencies' ``standard operating procedures,'' and 
litigation was limited primarily to policing agency compliance with the 
regulations.
    By the end of the 1980s, NEPA litigation had slowed down 
considerably, and scholars were asking whether compliance had become so 
routine that the statute had become a ``dead issue.'' Paul G. Kent & 
John Pendergrass, Has NEPA Become a Dead Issue? Temple Env. L. & Tech. 
J. 11 (1986). This trend changed during the George W. Bush 
Administration as the rate of NEPA lawsuit filings rose from a 
historical average of 108 cases per year to 137 in 2001 and 150 in 
2002. Jay E. Austin, et. al, Judging NEPA: A ``Hard Look'' at Judicial 
Decision Making Under the National Environmental Policy Act 
(Environmental Law Institute (2005). Even at this somewhat increased 
pace, however, it can hardly be said that NEPA litigation is 
overwhelming the federal resource agencies. Only about 0.2 percent of 
the federal actions generating NEPA environmental assessments result in 
litigation. Robert G. Dreher, NEPA Under Siege 15 (Georgetown 
Environmental Law & Policy Institute 2005).
    The recent increase in NEPA filings is explained by the critical 
policing function that Congress meant for NEPA to perform. NEPA applies 
exclusively to ``federal'' actions undertaken by Executive Branch 
agencies, and it is wholly unrealistic to expect that the Executive 
Branch will ensure that its own agencies consistently comply with NEPA. 
The statute therefore envisions that private citizens who are adversely 
affected by federal agency actions will play a role in enforcing NEPA's 
modest EIS requirement. As in most areas of environmental law, 
including EPA regulation under the Clean Air Act and Clean Water Act, 
when federal agencies press the boundaries of allowable conduct under 
the law, private entities can be expected to challenge unlawful conduct 
in court. That is precisely what has happened during the last four 
years as the George W. Bush Administration has at many levels attempted 
to reduce the role that environmental considerations play in federal 
agency decisions.
    Litigation is not cheap, and private entities and public interest 
groups generally employ it only as a last resort. Although the pace of 
NEPA litigation has increased somewhat during the last four years, 
there is no evidence that any of this increased litigation is 
``frivolous'' as some critics claim. According to an empirical study 
undertaken by the Environmental Law Institute, the overall success rate 
of NEPA plaintiffs in federal district court during this period was 44 
percent, a rate that is ``roughly consistent with long-term historical 
averages.'' Jay E. Austin, et. al, supra, at 8. Likewise, the success 
rate in courts of appeals was 31.8 percent, which is also roughly 
consistent with the historical rate. Id., at 9.
    An effectively enforced NEPA provides a powerful vehicle for local 
citizens to become informed about and influence the outcome of 
decisions made by remote decision makers in Washington, D.C. For 
example, it appears that a large proportion of the successful NEPA 
claims in the Northwest during the past several years have involved 
claims by local groups against decisions by federal agencies that are 
in large part driven by policies made in Washington, D.C. In other 
words, NEPA litigation in the Northwest is not thwarting local desires, 
and it is in fact facilitating local demands for environmental 
protection against local federal decision makers who are taking their 
orders from policymakers in the Nation's Capitol.
NEPA Litigation Did Not Cause the New Orleans Levees to Fail.
    Soon after the damage to New Orleans became apparent after 
Hurricane Katrina, NEPA critics initiated a concerted campaign to blame 
the damage on NEPA litigation brought against the Corps of Engineers in 
1976 challenging the adequacy of the environmental impact statement 
that the Corps had prepared for a proposed ``barrier'' project aimed at 
protecting Lake Pontchartrain from Hurricane storm surges. The 
historical record of the project and the litigation does not, however, 
support this radical contention.

The 1977 NEPA Litigation and Subsequent Developments
    Because New Orleans is situated in the delta formed at the mouth of 
the Mississippi River, it has always maintained a flood control system 
in place to protect it from the risks of flooding from the river to the 
south, Lake Pontchartrain to the north and Lake Bourne and the Gulf of 
Mexico to the east. The city is protected from Lake Pontchartrain and 
Lake Bourne by an interconnected series of levees that extends along 
the lakes. Another series of levees provides protection to Eastern New 
Orleans and St. Bernard Parish, which are located to the north and east 
of New Orleans, from Lake Pontchartrain on the north and from Lake 
Bourne and the Gulf on the east.
    Because New Orleans is below sea level and rapidly sinking, 
rainwater that flows into the city must be removed with huge pumps that 
force the water to move along three man-made canals, called ``outfall 
canals,'' to Lake Pontchartrain. The canals are lined with levees and 
concrete floodwalls that prevent the water from spilling into the city. 
In addition to the drainage canals, the Corps of Engineers constructed 
two large shipping canals through the city to permit ocean-going 
vessels to move from the Mississippi River through the city to Lake 
Pontchartrain or the Gulf of Mexico. The Industrial Canal slices north/
south across the city between the river and the lake at the point where 
they are closest to each other. The Mississippi River-Gulf Outlet 
(MRGO) canal bisects the Industrial Canal and travels to the Gulf of 
Mexico.
    In 1965, Congress authorized the Lake Pontchartrain and Vicinity 
Hurricane Protection Project (LPVHPP) to provide hurricane protection 
to the Greater New Orleans metropolitan area. To implement this 
statute, the Corps of Engineers studied two major options--the ``high 
level'' option and the ``barrier'' option. Under the ``high level'' 
option, the Corps would raising all of the existing levees to a height 
that would prevent flooding that could result from the ``standard 
project hurricane,'' a simulated hurricane that would hit New Orleans 
once every 200 to 300 years. This mythical hurricane was roughly 
equivalent to a fast moving category 3 storm on the Saffir-Simpson 
hurricane scale. In practice this would have resulted in raising the 
levees from between 9.3 and 13.5 feet above sea level to between 16 and 
18.5 feet above sea level. United States General Accounting Office, 
Cost, Schedule, and Performance Problems of the Lake Pontchartrain and 
Vicinity, Louisiana, Hurricane Protection Project (PSAD-76-161 (August 
31, 1976) [hereinafter cited as 1976 GAO Report], at 3.
    Under the ``barrier'' option, the Corps would have constructed 
levees along the far eastern edge of Lake Pontchartrain where it flows 
into Lake Bourne and the Gulf of Mexico through two relatively narrow 
channels at the Rigolets and Chef Menteur Pass. The Corps would have 
constructed huge structures at the two passes that would have allowed 
water to flow back and forth between the lakes but could be closed as a 
hurricane approached. The Corps believed that the levees and the 
barrier structure would prevent the storm surge preceding a hurricane 
from crossing from Lake Bourne into Lake Pontchartrain. Like the high 
level option, the barrier option was designed to protect against the 
standard project hurricane.
    The Corps initially decided to implement the barrier option. Work 
on the barrier structures and levees running from New Orleans to the 
those structures, however, was greatly delayed because landowners 
opposed to the project demanded high prices for the property that the 
Corps needed for those levees, thereby forcing the Corps to exercise 
its power of eminent domain. 1976 GAO Report, supra, at 16.
    In 1976, a coalition of local fishermen and an environmental group 
called Save Our Wetlands sued the Corps of Engineers alleging that the 
final environmental impact statement (FEIS) for the project was 
inadequate. On December 30, 1977, a federal judge issued an injunction 
preventing the Corps from conducting any work on the barrier project 
until it had prepared an adequate FEIS. The injunction was subsequently 
modified to permit continued construction of the levees between the 
lake and the City of New Orleans.
    The lawsuit temporarily prevented the Corps from working on the 
barrier option, but the Corps abandoned this option for other reasons. 
When the injunction sent the Corps back to the drawing board, it 
reconsidered the costs and benefits of the barrier and high level 
options in light of the increased cost that it had been encountering 
because landowners were insisting on protecting their property rights. 
At the same time, the Corps was encountering strong opposition to the 
barrier plan from local citizens who did not want to pay a very high 
price for a project that might endanger the vitality of Lake 
Pontchartrain and from representatives of areas on the Lake Bourne side 
of the barrier who would have been at greater risk of flooding during 
hurricanes.
    The intense public opposition was in evidence in congressional 
hearings conducted in New Orleans the week after the injunction issued. 
Hearings on Hurricane Protection Plan for Lake Pontchartrain and 
Vicinity before the Subcommittee on Water Resources of the House 
Committee on Public Works and Transportation, 95th Cong., 2d Sess. 
(1978) [hereinafter cited as 1978 House Hearings]. A spokesperson for 
the League of Women Voters argued that the Corps had never undertaken a 
study of the cost to taxpayers of maintaining the urbanization of 
wetlands that the project envisioned, and she noted that the voters of 
New Orleans had defeated proposals to participate in the financing of 
the barrier project on three separate occasions, but had voted to 
approve a similar project without the barriers the previous year. Id. 
at 11. An informal poll conducted by Representative Robert Livingston 
indicated that a substantial majority of the New Orleans citizens 
either opposed the project (38.5 percent) or favored discontinuation 
until the studies could be completed (23.6 percent). Id. At 12. A state 
legislator from St. Tammany Parish, part of which was on the Lake 
Bourne side of the barrier project, warned that the project would put 
his parish at risk when the gates were closed because it would deflect 
the surge from Lake Bourne into St. Tammany parish. Id. at 47-48.
    By 1982, the New Orleans district of the Corps of Engineers had 
changed its mind. It now favored the high level plan ``because it would 
cost less than the barrier plan'' and ``have fewer detrimental effects 
on Lake Pontchartrain's environment.'' United States General Accounting 
Office, Improved Planning Needed by the Corps of Engineers to Resolve 
Environmental, Technical and Financial Issues on the Lake Pontchartrain 
Hurricane Protection Project (GAO/MASAD-82-39) (August 17, 1982), at 2. 
The Corps did not make a final decision on how to proceed until 1985 
when it decided to implement the high level plan because by then it was 
considerably less expensive. The high level plan of 1985 was 
substantially completed prior to Hurricane Katrina.

Why the Levees Failed
    The water that flooded New Orleans did not flow over the high level 
levees situated between Lake Pontchartrain and the city. Instead, it 
appears that the surge flowed up the 17th Street and London Avenue 
canals and breached the floodwalls lining those canals. In addition, 
although the Corps enhanced the levees protecting Eastern New Orleans 
and St. Bernard Parish as part of the high level plan, these areas were 
not protected from the ``end around'' exposure that occurred during 
Hurricane Katrina. The hurricane surge entered Lake Bourne from the 
Gulf of Mexico and proceeded up the MRGO canal to the Industrial canal 
in the heart of New Orleans. The surge destroyed most of the levees and 
flood walls along the MRGO canal in St. Bernard parish as it pushed up 
the narrowing canal from Lake Bourne to the conjunction of the MRGO 
canal with the Industrial canal. The levees and floodwalls along these 
two ``outlet'' canals were probably breached by the storm surge 
traveling up the MRGO canal from the Gulf of Mexico. This storm surge 
would not have been prevented by the barrier project, and it may well 
have exacerbated that surge.

The Limited Impact of the 1977 NEPA Litigation
    The lawsuit brought by local fishermen and a local environmental 
group was entirely justified, because the EIS filed by the Corps was 
clearly inadequate. The court found that ``the picture of the project 
painted in the FEIS was not in fact a tested conclusion but a hope by 
the persons planning the project that it could in fact be constructed 
so as to meet the environmental objectives set out in the FEIS.'' Save 
Our Wetlands v. Rush, Civ. No. 75-3710, Slip Opinion (E.D. La. 1977). 
The court noted that the Corps' chief engineer for the New Orleans 
Division had requested further model studies because the draft EIS 
relied on studies that were undertaken more than a decade earlier for 
an obsolete version of the project. The chief engineer feared that the 
flow of water between the lakes, which was critical to maintaining the 
integrity of marine life in Lake Pontchartrain, was far less in the new 
version of the project than in the earlier version. The requested model 
studies were initiated, but they had not been completed when the FEIS 
came out, and the Corps continued to rely upon the obsolete studies. 
Id. at 5.
    More importantly, the biological analysis undertaken in the FEIS 
relied entirely on a single telephone conversation with a single marine 
biologist who was asked to speculate on the impact of the project on 
marine organisms using the inter-lake flow rates predicted by the 
obsolete model. The Corps of Engineers official who was responsible for 
preparing the EIS expressed reservations about the statements on the 
effects of the structures on marine life in the lake, and he suggested 
that the conclusion that the project ``would not'' have a significant 
impact on lake biology should be changed to ``should not.'' He was, 
however, overruled. The court further noted that the assessment of the 
benefits of the project included the benefits of further urban 
development on wetlands that would be reclaimed from the lake after the 
project was completed, but it failed to take into consideration the 
fact that the area had also been designated as a protected wetland. A 
Corps economist pointed this out and asked that the analysis be 
changed, but he was overruled. Id. at 6.
    Finally, the court concluded that in light of ``the problems of 
which the Corps was aware with respect to the possibility of 
significantly decreased tidal flow through the structures,'' the 
analysis of alternatives in the FEIS was inadequate. The court 
concluded that the FEIS ``precludes both the public and the 
governmental parties from the opportunity to fairly and adequately 
analyze the benefits and detriments of the proposed plan and any 
alternatives to it.'' Id.
    The court therefore enjoined further work on the barrier structures 
aspect of the project until the Corps had completed an adequate FEIS. 
It stated in no uncertain terms, however, that its opinion and order 
should ``in no way be construed as precluding the Lake Pontchartrain 
project as proposed or reflecting on its advisability in any manner,'' 
and it stressed that ``[u]pon proper compliance with the law with 
regard to the impact statement, this injunction will be dissolved and 
any hurricane plan thus properly presented will be allowed to 
proceed.'' Id. at 7.
    Although some recent commentators have stated unequivocally that 
the court's injunction prevented the barrier project from going 
forward, the injunction should have delayed the barrier option only for 
as long as it took the Corps to remedy the problems that the court had 
identified in the EIS. The court would have lifted the injunction as 
soon as the Corps simply updated the EIS with adequate hydrologic 
modeling, conducted a more thorough biological assessment, and 
considered a few reasonable alternatives. In the process of responding 
to the EIS, however, the Corps reevaluated the ``high level'' 
alternative and decided to adopt that approach instead. The court did 
not force the Corps to adopt what by then had become the least 
expensive option because of the vigor with which local residents had 
asserted their property rights.
    In any event, it is now becoming clear that Hurricane Katrina 
destroyed as much as 90 percent of the levees protecting St. Bernard 
parish south of the Industrial Canal and that the same surge probably 
caused the breaches in the floodwalls along the Industrial canal. The 
barrier plan that the Corps was considering at the time of the 
litigation would not have prevented the surge from moving from Lake 
Bourne over the levees and through the funnel of the MRGO canal into 
the heart of New Orleans, and it might well have exacerbated that 
surge.
    Finally, academic engineers who have been studying the New Orleans 
levee breaches are coming to the conclusion that the reason that the 
floodwalls along the 17th Street and London Avenue outlet canals failed 
is that they were poorly designed and constructed. R. B. Seed, et al., 
Preliminary Report on the Performance of the New Orleans Levee Systems 
in Hurricane Katrina on August 29, 2005, November 2, 2005. It appears 
that at least some of the floodwalls were built on weak soils, were not 
adequately anchored and may have been designed without an adequate 
margin of safety. Ralph Vartabedian & Stephen Braun, System Failures 
Seen in Levees, Los Angeles Times, October 22, 2005. An engineer who 
has been working on a National Science Foundation-funded study of the 
levee breaches has even suggested that malfeasance may have been 
involved as well. John Schwartz, ``Malfeasance'' Might Have Hurt 
Levees, Engineers Say, New York Times, November 3, 2005, at A22. The 
1977 NEPA litigation obviously had nothing at all to do with the flawed 
design and construction of those floodwalls.

NEPA Has Not Unduly Interfered with the Proper Issuance of BLM and 
        Forest Service Grazing Permits
    The controversy that has recently arisen over NEPA requirements 
related to grazing on public lands has focused on the application of 
NEPA to the issuance and renewal of BLM and Forest Service grazing 
permits. Some NEPA critics have argued that NEPA's application to 
grazing permits is unnecessary or redundant and that NEPA litigation 
has forced ranchers off of their grazing allotments. This criticism has 
resulted in proposals to exempt grazing permits from NEPA altogether. A 
careful examination of the facts and the law, however, reveals that 
these criticisms are misdirected and that proposals for wholesale 
exemptions are entirely unjustified.

The Importance of Grazing Permits
    The critical decisions that determine whether livestock grazing on 
public lands will be conducted in a responsible or a destructive manner 
are contained in the grazing permits issued by the Forest Service and 
the BLM. Each permit specifies--either in the permit itself or in an 
allotment management plan (AMP) incorporated in the permit--where, 
when, how many, for what length of time, what type, and under what 
terms and conditions livestock will graze. These specifications are not 
mere administrative details. The terms and conditions of grazing 
permits determine whether native plant communities will flourish or be 
replaced by invasive weeds, whether fish and wildlife habitat will be 
improved or degraded, and whether streams will run clear and cold or be 
turned warm and muddy. Furthermore, grazing permits affect large areas 
of land. The average grazing permit covers about 8,000 acres of public 
land, and the largest permits each cover several hundred thousand acres
    Other plans, programs, and decisions of the BLM and the Forest 
Service affect livestock grazing only insofar as they are implemented 
through the terms and conditions of these individual grazing permits. 
In particular, BLM and Forest Service land use plans should constrain 
grazing permits by specifying where grazing will be permitted, setting 
environmental standards that permits must meet, or providing guidelines 
to which permits should conform. However, most BLM and Forest land use 
plans are written in very broad and general terms, deferring specific 
determinations about locations and levels of livestock grazing to 
subsequent decisions on individual permits. Moreover, even where land 
use plans contain more specific decisions about grazing, these 
decisions are not effective on the ground unless and until they are 
incorporated in the terms and conditions of individual grazing permits, 
and they sometimes are omitted.

The Need for Site-Specific Information
    Sound decision making about the terms and conditions of a grazing 
permit requires site-specific information about the lands covered and 
the resources affected by the permit. General guidelines and 
prescriptions cannot be applied to individual grazing allotments as 
boilerplate in a cookie-cutter fashion. The acceptable level, 
locations, and timing of grazing on a particular allotment depend on 
many site-specific factors including climate, elevation and topography, 
the types and conditions of soils and vegetation on the allotment, the 
history of grazing on the allotment, the numbers and locations of water 
sources, the types of fish and wildlife on the allotment and their 
habitat needs, the location and condition of streams and associated 
riparian areas, and other resources and uses of the allotment (such as 
archaeological sites or recreation) that may be affected by livestock 
grazing,
    The critical role of grazing permits in determining the 
environmental impacts of grazing on the public lands, and the need for 
site-specific information in making decisions about those permits, was 
recognized by the court in Natural Resources Defense Council (NRDC) v. 
Morton, which held that a national programmatic environmental impact 
statement (EIS) did not provide the information needed for decisions 
about individual permits. NRDC v. Morton, 388 F. Supp. 829, 838-39 
(D.D.C. 1974), aff'd, 527 F.2d 1386 (D.C. Cir. 1976), cert. denied 427 
U.S. 913 (1976). The court ordered the BLM to prepare EISs ``which 
discuss in detail the environmental effects of the proposed livestock 
grazing, and alternatives thereto, in specific areas of the public 
lands.'' Id. at 841. It did not, however, order the BLM to prepare a 
full-fledged EIS for each grazing permit, leaving that to BLM's 
reasoned discretion. Id.

The Inadequacy of Broad-Scale EISs that Are Not Site-Specific
    After the court's decision in Morton, the BLM prepared 
approximately 150 EISs. The average EIS covered over 1 million acres of 
land and included over 100 different grazing allotments. Most of these 
EISs were prepared in connection with land use plans and purported to 
address the environmental impacts of all public land uses, not just 
grazing. The Forest Service, under the mandate of the National Forest 
Management Act, also prepared EISs in connection with its land use 
plans. These EISs, like those of the BLM, each typically cover an area 
of a million acres or more, including scores of grazing allotments.
    Because these BLM and Forest Service EISs cover such large areas 
and include so many grazing allotments, they generally do not contain 
detailed, site-specific information about individual grazing 
allotments. In substance, if not in form, these area-wide EISs resemble 
the national, programmatic EIS that the court found inadequate in NRDC 
v. Morton. Subsequently, another court, in NRDC v. Hodel, 624 F. Supp. 
1045 (D. Nev. 1985), found that such a broad-scale, generalized EIS is 
adequate to support a land use plan, where the land use plan itself is 
a broad, programmatic document that does not make specific decisions 
about grazing management on individual grazing allotments. However, 
these broad-scale EISs do not provide the information necessary to 
support decisions about individual grazing permits.
    The severe lack of information in the broad-scale EISs prepared in 
connection with land use plans was starkly revealed in an 
administrative appeal, National Wildlife Federation v. BLM, which 
concerned the BLM's Comb Wash grazing allotment in Utah. The allotment 
includes five canyons that contain world-famous scenery, fragile 
riparian wildlife habitat, and thousands of archaeological sites. Under 
a BLM permit, these canyons were also grazed by cattle, even though 
they contained only a very small amount of forage--about 10% of the 
allotment's total. Testimony at the hearing in the case documented 
that, in the narrow, confined space of the canyons, the cattle were 
destroying riparian vegetation, causing severe soil erosion, trampling 
archaeological sites, polluting the streams, and covering campsites 
with manure and urine.
    The Interior Board of Land Appeals (IBLA) found that the BLM's EIS, 
prepared in connection with a land use plan covering 1.8 million acres 
and including over seventy grazing allotments, had no information at 
all about the resources in the five canyons or the impacts of grazing 
on those resources. The board ordered the BLM to discontinue grazing in 
the canyons, while allowing grazing to continue on the remaining 90% of 
the Comb Wash allotment, until an adequate EIS was prepared. In 
response to the IBLA's decision, the BLM prepared an environmental 
assessment (EA), in which the BLM itself concluded that grazing in the 
canyons made no sense given the small amount of forage there and the 
severe damage that grazing was causing.
    The Comb Wash case determined, in accordance with the holding of 
NRDC v. Morton, that a BLM decision to issue or renew a grazing permit 
requires a NEPA document (EA or EIS) with sufficient site-specific 
information to support a reasoned and informed decision about grazing 
on the allotment involved. The case did not hold that one EIS is 
required for each permit. The required information may be incorporated 
(though it usually is not) in an EIS prepared in connection with a land 
use plan. Alternatively, an EIS may be prepared for a group of grazing 
allotments. If the environmental impacts of grazing on a particular 
allotment are not significant, then an environmental assessment (EA) 
will suffice. Finally, once the impacts of grazing on a particular 
allotment are adequately analyzed, absent material changes in 
circumstances, the analysis need not be repeated each time the permit 
is renewed.

The Impact of NEPA Litigation
    Although NEPA was enacted in 1969, the BLM and the Forest Service 
did not begin performing site-specific environmental analyses (EAs or 
EISs) on their grazing allotments until the 1990s. There are still 
thousands of grazing allotments on which such analyses have never been 
done. For this reason, assertions that NEPA analyses in connection with 
permit renewals are somehow ``redundant'' or ``repetitive'' are 
misinformed.
    Despite the lack of NEPA compliance with respect to many 
allotments, grazing continues on more than 99.9 percent of those 
allotments. Although litigation, and the threat of litigation, played a 
role in prompting the BLM and the Forest Service to begin performing 
the badly-needed environmental analyses, litigation has not stopped 
grazing from continuing pending completion of those analyses.
    Some critics of NEPA have invoked the specter of hundreds or 
thousands of ranchers being kicked off of their grazing allotments 
because of litigation over the BLM's or the Forest Service's failure to 
comply with NEPA, but this hypothetical horror story has no basis in 
fact. In the thirty-five years since the enactment of NEPA, there have 
to my knowledge been only three cases in which livestock were ordered 
out of an area in connection with NEPA litigation. In all three cases, 
the agency not only failed to comply with NEPA, but there was also 
proof that livestock grazing was causing very serious damage to 
valuable natural resources. There has never been a case in which 
livestock have been removed solely because of the agency's failure to 
comply with NEPA. Moreover, of the three cases, in one cattle were 
ordered removed from only 10% of the grazing allotment in question, and 
in another a settlement was reached between the plaintiffs and the 
rancher that allowed cattle to remain on the land despite the court's 
order. Thus, there has been only one case in which an entire grazing 
allotment was shut down, even temporarily, on NEPA grounds, and in that 
case the plaintiffs offered the affected rancher an alternative area to 
graze his cattle.
    The following are the specifics of the three cases:
    1.  National Wildlife Federation v. BLM, 140 IBLA 85 (1997). This 
is the Comb Wash case, in southeastern Utah, discussed above. After 
finding serious ongoing damage to soils, vegetation, riparian areas, 
water quality, wildlife habitat, and recreational sites, an 
administrative law judge ordered cattle temporarily kept off of 10% of 
one grazing allotment, while allowing grazing to continue on the 
remaining 90%. Later, the BLM, of its own accord, decided that grazing 
in the sensitive area affected by the judge's decision made no sense.
    2.  Greater Yellowstone Coalition v. Bosworth, 209 F. Supp.2d 156 
(D.D.C. 2002). This case concerned the Horse Butte Allotment on the 
Gallatin National Forest in Montana, adjacent to Yellowstone National 
Park. Bison from the park were being shot as they entered the allotment 
in order to avoid the possibility that they might transmit brucellosis 
to the 147 cattle that grazed there. The Forest Service had committed 
to complete a NEPA analysis by 1998 to address the impacts of grazing 
on the allotment, including the killing of bison. As of 2002, the NEPA 
analysis had still not been completed. In order to prevent further 
killing of bison, the court enjoined grazing on the allotment for one 
season, pending the completion of the analysis.
    3.  Western Watersheds Project v. Bennett, Civ. No. 04-0181-S-BLW 
(D. Idaho 2005). This case concerned grazing on the BLM's Jarbidge 
Resource Area in Nevada. The court found that not only had the BLM 
failed to comply with NEPA, but also that grazing in the area was 
causing violations of the BLM's Standards for Rangeland Health, was 
violating standards in the applicable land use plan, and had 
contributed to an 85% decline in the population of sage grouse. The 
court enjoined grazing on 28 allotments covering 800,000 acres. After 
the court entered its order, and before any livestock were removed, the 
plaintiffs and the affected ranchers reached a settlement that allowed 
grazing to continue on the allotments.

Congressional Action
    Even though agency failures to comply with NEPA have led to removal 
of cattle in only a couple of cases, many ranchers nonetheless feared 
that their operations could be threatened by litigation. To address 
this concern, Congress has since 2000 included riders in annual 
appropriations legislation specifying that, when a grazing permit 
expires before the agency completes its processing of a new permit in 
compliance with NEPA and other applicable laws, a new permit shall be 
issued with the same terms and conditions as the expiring permit. The 
2003 appropriations rider extended the effect of this provision through 
2008. Hence, any claim that NEPA has delayed grazing permit renewals 
cannot be based on fact.

Pending Amendments to the BLM's Grazing Regulations
    Amendments to the BLM's grazing regulations that were proposed in 
2003 and are expected to be promulgated in 2006 would delete the 
specific requirements in the current regulations for consultation with 
concerned citizens when the BLM issues, modifies, or renews a grazing 
permit. The justification given for the proposed deletion of these 
requirements is that they are redundant with the requirements of NEPA, 
which guarantees public participation in the issuance, modification, 
and renewal of grazing permits. Any legislation that would exempt 
grazing permits from NEPA would therefore directly contradict the 
rationale for these regulatory changes, and it would have the effect of 
completely excluding the public from critical grazing management 
decisions.

Conclusions.
    It is clear beyond cavil that the 1977 Save Our Wetlands lawsuit 
did not cause the levees in New Orleans to fail during Hurricane 
Katrina. The Task Force should therefore refuse to lend any credence at 
all to those who would invoke the suffering of the citizens of New 
Orleans to advance their own unrelated agendas with this wholly 
discredited myth. Similarly, contrary to the expressed fears of the 
livestock industry, NEPA litigation has very rarely forced a cessation 
of livestock grazing on public lands. Existing legislation provides for 
renewal of grazing permits pending NEPA compliance. Legislation 
exempting grazing permits from NEPA is therefore unnecessary, and it 
would in fact be detrimental to the desirable goal of public 
participation in critical grazing management decisions.
    NEPA has ``unquestionably improved the quality of federal agency 
decision-making in terms of its sensitivity to environmental 
concerns.'' Dreher, supra, at 4. By performing the critical function of 
policing agency compliance with the NEPA's modest analytical 
requirements, private litigation is ensuring that federal agency 
decision making continues to be sensitive to environmental concerns. 
That is what the American public expects and Congress should not 
undermine that expectation by amending this bulwark of American 
environmental law.
                                 ______
                                 
    Ms. McMorris. Thank you, Ms. Cowan?

                   STATEMENT OF CAREN COWAN, 
             NEW MEXICO CATTLE GROWERS' ASSOCIATION

    Ms. Cowan. Madam Chairman, members of the Task Force and 
members of the Committee, thank you so very much for holding 
this hearing and allowing me the opportunity to testify today. 
My name is Caren Cowan and I am here today representing the New 
Mexico Cattle Growers' Association with members in all 33 of 
our state's counties, as well as 14 other states.
    Having grown up on a ranch in southeastern Arizona and most 
of my family vacations being attending cattle growers' 
conventions, I thought I knew what my job was when I went to 
work for the New Mexico Cattle Growers' eight years ago. That 
was producer education, range betterment, living in states 
where there is a lot of Federal land, working cooperatively 
with those agencies. Within two weeks of cleaning out the old 
desk and starting in new, I learned that there was a lawsuit 
that had been filed and a potential injunction that could 
remove literally hundreds of ranching families in Arizona and 
New Mexico. The shape of my job has been changed ever since and 
I spend a great deal of my time working on litigation, rather 
than on the cooperation and producer education and range 
betterment that we ought to be doing and historically 
organizations like mine have done.
    It is my understanding that NEPA is intended to analyze 
actions and look at potential consequences and mitigate those 
that are negative. It was never intended to promote litigation. 
If it was, Congress would have put in a citizen's lawsuit 
provision like it did in other laws like the Endangered Species 
Act and the Clean Water Act. However, we find that literally 
hundreds and hundreds of lawsuits are filed every year. In my 
testimony, it details a lot of statistics that I will not bore 
you with here at this point, but there are just numerous 
lawsuits. They are not filed by local people, they are filed by 
national organizations that are trying to change the landscape 
of the land.
    In the spirit of full disclosure, I will tell you that the 
New Mexico Cattle Growers' has engaged in that litigation, as 
well. Our leadership determined that if the battlefield was 
going to be the court, then it was our responsibility to go to 
the courts to protect our members. But with that said, we have 
been in existence for over 90 years. We have been involved in 
probably a dozen lawsuits and only one of them had a NEPA 
connection.
    As I said, my testimony goes into great detail on cases. 
But one of the things that we learned in looking at this is 
that there are a lot of cases that are settled and the agencies 
are finding that it is quicker and faster and cheaper to settle 
cases. And in that settlement, they are paying huge fees and 
costs to environmental organizations and the folks who sue on 
their behalf. If you wanted to find out all of this stuff, it 
would require going into each Court and pulling out documents 
and that sort of thing. But it is really not necessary to do 
that to learn the goals of what these folks have in mind who 
are trying to drive grazing and other natural resources off the 
land with the use of NEPA.
    Last year I had the dubious honor of attending the National 
Public Lands Grazing Campaign event, which was held in 
Albuquerque on a panel about the buy out, the Federal taxpayer 
funded buy out that is being proposed.
    At the end of my presentation, I kept getting asked the 
same questions over and over again and I kept giving the same 
answer, because it had not changed. Finally, the panel 
moderator said, well, what they really want to know is what we 
have to do to get you to agree with us so that we can take you 
off the land. Do we have to keep suing you? And of course my 
answer was sort of a laughing yes, go for it, because we are 
not leaving. And John Horning was at the back of the room and 
he hollered, well, Caren, we are ready to do it.
    So that tells you what the meaning is here. The Forest 
Guardians in a story in ``The Wall Street Journal'' a couple of 
years ago, the story says, ``First they track down ranchers who 
have permits to feed livestock on Federal land. The next step 
is to sue, accusing the government of mismanaging the land 
where cows graze. If the Guardians win in Court or if the 
government settles, the number of cows ranchers are allowed to 
graze is reduced.''
    Even when a suit is not filed, the fear of the Federal 
agencies of suits automatically going in and cutting numbers to 
try and avoid suits is prevalent. We have lots of producers in 
our state who have had their numbers reduced through NEPA by an 
agency who is trying to avoid a lawsuit. And I think if you 
talk to Federal land management agencies, they are going to 
tell you how much time they are using to try to make NEPA 
bullet proof and suit proof.
    Part of what we found interesting as we did our research is 
who is actually doing the suing. There are colleges who are 
giving college credit to students who prepare environmental 
briefs and the colleges are being paid for doing those sorts of 
things. As we go to that, we talk about cost. The GAO has 
recently issued a report about how expensive the grazing 
program is. How much of that cost is involved in NEPA 
compliance and why is that money not going on the ground? We 
are wasting an incredible amount of time and money and human 
resources on litigation when we could be enhancing the 
environment. And I think that is what we all want, is a healthy 
environment, rather than lining the pockets of lawyers. I 
appreciate the time to be here. There are a lot of details in 
my testimony and I will stand for questions. Thank you.
    [The prepared statement of Ms. Cowan follows:]

              Statement of Caren Cowan, on behalf of the 
                 New Mexico Cattle Growers' Association

    Madam Chairwoman, members of the Task Force and Committee, and 
especially New Mexico's Congressman Tom Udall, Ranking Member, and 
Congressman Steve Pearce, on behalf of the membership of the New Mexico 
Cattle Growers' Association (NMCGA), thank you for holding a hearing on 
this most vital portion of the National Environmental Policy Act (NEPA) 
debate, and for the opportunity to testify before you.
    My name is Caren Cowan and I am executive director of the NMCGA, an 
organization with members in all 33 of New Mexico's counties and 14 
other states. Growing up on a commercial beef cattle operation in 
southeastern Arizona, where family vacations consisted of trips to the 
Cattle Growers' conventions, I thought I knew what I was getting into 
when I accepted this position with the NMCGA. Organizations like NMCGA 
have, for well over a century, looked after the interests of ranchers 
who care for the land and its creatures and have handed down family 
operations from generation to generation.
    For many decades that meant working on producer education and range 
betterment, mixed in with public policy and making sure there was a 
regulatory climate conducive to sound land management. For 
organizations in the West where much of the land is held in state or 
federal hands, that also meant a healthy dose of cooperation with state 
and federal land and wildlife management agencies. These trade 
organizations also provided the social component so necessarily for an 
industry where much of the work is solitary with families who live in 
isolation, many miles from the highway. There was always a buddy at a 
meeting that was suffering the same whims of Mother Nature and a 
cyclical market.
    Imagine my surprise, when being on the job for about two (2) weeks 
in July of 1998, word came down that there was a very real possibility 
that literally hundreds of families in New Mexico and Arizona were in 
jeopardy of losing their livelihoods and their homes due to an 
environmental lawsuit. My job description changed rather radically that 
day and since then I find that instead of helping producers do a better 
job on the ground and working with other groups and agencies with the 
same goal, I spend a good portion of my time working through the court 
system just to keep ranchers on the ground. I know that federal land 
and wildlife management agencies are in the much the same shape.
    It is my understanding that NEPA was and is intended to cause 
federal agencies to take a step back and look at the potential 
consequences on the environment of their contemplated ``major federal 
actions,'' to involve the public in decision making and to mitigate 
potential consequences of actions. I do not believe that NEPA was ever 
intended to halt natural resource use, sometimes to the detriment of 
natural resources, or to deprive families and rural economies of 
livelihoods.
    NEPA is not about actions that are taken, but is pre-action 
analysis. Litigation on NEPA is on procedure not environmental impacts. 
Additionally, NEPA does not contain a ``citizen's lawsuit provision'' 
as do other federal environmental laws. Given that Congress made their 
intent clear with these provisions in other laws, it seems to me that 
it was never Congress's intent that NEPA would be fodder for the 
endless litigation we are now facing.
    However, today's interpretation by the courts and regulatory regime 
have made NEPA one of two primary federal environmental laws that are 
the vehicles for environmental elitists to stop use of federal lands, 
causing great harm and destruction along the way. A whole cottage 
industry of so-called environmental groups has sprung up using the 
courts for the admitted purpose of eliminating land use.
    In the grazing industry, there is a ``zero-grazing movement, which 
aims to clear every head of cattle off the 265 million acres of 
wildlands the U.S. government owns in 11 Western states,'' according a 
November 2002 article in the Wall Street Journal (Attachment A). In New 
Mexico, as in many other areas, these groups have already all but 
eliminated the timber industry.
    Yet logging still provides fodder for NEPA litigation. Many suits 
are filed on the environmental analysis of post-fire salvage logging. 
There is a short ``shelf-life'' for scorched timber before insect 
infestation sets in. Even a slight delay in projects can render the 
timber useless, so it is quite easy for a NEPA lawsuit to eliminate a 
project whether or not the environmental group plaintiffs prevail.
    Far from the intent of NEPA, the groups relying on litigation to 
mold the landscape to their selfish views are regional and national in 
scope. Here are some statistics on lawsuits filed by so-called 
environmental groups based on research on Public Access to Court 
Electronic Records (PACER) system (this does not include cases filed in 
New Mexico because the state does not use PACER):
      Center for Biological Diversity, which originated in New 
Mexico and now has its main office in Arizona, has only been in 
existence for 15 years, and since that time has filed a total of 414 
cases
      Forest Guardians, which originates in New Mexico, has 
been in existence 14 years and has filed a total of 58 cases
      Oregon Natural Desert Association, from Oregon, has been 
in existence 18 years and has filed a total of 40 cases
      Western Watersheds Project, from Idaho, has been in 
existence 12 years and has filed a total of 44 cases
    Even some of the longstanding organizations have refitted their 
purposes to litigation as well.
      Defenders of Wildlife has been in existence 58 years and 
has filed a total of 163 cases
      National Wildlife Federation has been in existence 69 
years and has filed a total of 191 cases
      Sierra Club has been in existence 107 years and has filed 
a total of 739 cases
    In the spirit of full disclosure, NMCGA and other organizations in 
New Mexico and throughout the West have gotten in the litigation game 
as well, not because our industry is litigious by nature, but because 
that is where the game is being played. However, although the NMCGA has 
been in existence nearly a century, we have only intervened in a few 
cases and have filed a few cases under the ESA, only one of which had a 
NEPA component. This would amount to a total of less than a dozen cases 
in over 90 years.
    Admittedly, this huge number of cases filed by the environmental 
groups listed above does not relate only to NEPA. The Endangered 
Species Act (ESA) and the Clean Water Act (CWA), as well as land 
management statutes and the Freedom of Information Act (FOIA) all play 
into the strategy of litigation by those who would drive all use from 
the land just for preservation's sake.
    Just cursory computer search turn up some fairly startling data 
regarding the use of NEPA. A search of WESTLAW, a commercial data 
service that provides data bases for all published federal court 
decisions as well as a few arbitrarily selected non-published federal 
decisions for all federal courts, revealed that from January, 2000 to 
the end of last month, a total of 999 cases were decided containing the 
acronym NEPA or the phrase ``National Environmental Policy Act.'' A 
search using the word ``environmental'' as the filter netted 3,902 
cases, meaning that NEPA made up more than 25 percent of all 
environmental litigation.
    A detailed evaluation of every environmental case filed in the 
Oregon Federal District Court for a four (4) year period gives a 
glimpse of the magnitude of the issue. According to PACER there were a 
total of 148 ``environmental'' cases filed from 2002 through October 
28, 2005. Electronic documents were not available for eight (8) of 
those cases. Of the 140 remaining cases, only 28 were not filed by 
``environmental'' organizations, meaning that 80 percent of the 
``environmental'' cases were filed by ``environmentalists.'' Some 63 
cases or 53 percent of ``environmentalist environmental'' cases 
included at least one NEPA claim. The balance of the cases included 39 
that were primarily ESA claims, with the remaining 10 involving a 
variety of statutes. Clearly, NEPA appeared to be the vehicle of choice 
for litigation. Logging was the focus of 78 percent of the NEPA suits 
with 49 suits, with grazing and recreation or access coming in with 
five a piece. Hunting was target of another three cases, while mining 
drew one claim.
    To get the entire picture of the frequency and impact of NEPA 
claims, one must physically pull the dockets and pleadings for every 
environmental case filed in every district court in the nation. 
However, that human labor is not necessary because these 
``environmental'' groups are quite vocal about their aims and means of 
achievement. I had the dubious honor to be invited to participate on a 
panel at the annual meeting of the National Public Lands Grazing 
Campaign regarding a tax-payer funded buyout of federal lands ranching 
last year. During the question and answer period of the presentation, I 
was repeatedly ask how NMCGA formulated policy and what the general 
membership thought about the potential of a buyout of livestock grazing 
preference rights on federal lands. The answer was the same, our 
members determine policy and they have determined not to support a tax-
payer funded buyout.
    Eventually panel moderator Andy Kerr said that what the people 
assembled really wanted to know was just what kind of pressure was it 
going to take for ranchers to accept the buyout proposal. Were the 
groups involved just going to have to keep suing? My answer was, of 
course, yes. John Horning, Forest Guardians executive director, shouted 
from the back of the room that he was happy to oblige.
    The Forest Guardians, as reported in the Wall Street Journal, 
describes itself as ``relentless'' and ``uncompromising.'' ``First they 
track down ranchers who have permits to feed their livestock on federal 
land...,'' the story says. ``The next step is to sue'', accusing the 
government of mismanaging the land where the ranchers' cows graze. If 
the Guardians win in court, or if the government settles, the number of 
cows a rancher is allowed to graze with his permit is cut....''
    These statements raise another issue, that of the ``settling'' of 
cases by government agencies to avoid further litigation. In the Oregon 
court research, there were 63 NEPA cases in the past three years, 32 of 
which have been resolved. In 11 of the resolved cases, the 
environmental organization lost.
    In 21 cases the organization won at least part of its case. Of 
those 21 cases, 13 were ``settled'' by the federal agency prior to the 
court issuing a ruling. Thus, the environmental organizations proved 
their case in only eight (8) cases. However, when the environmental 
groups prevail, at least in part, or settle, their legal costs and fees 
are paid by the federal government. Again, determining the total amount 
of those payments is difficult without physically going to each federal 
district court and pulling individual documents. But preliminary 
research indicates that since the attorney fees paid by federal 
agencies are generally less when cases are settled rather than 
litigated, federal agencies may be settling cases to reduce financial 
exposure rather than vigorously defending themselves are risk a loss in 
court. Additionally, according to numerous published federal court 
decisions, attorney hourly fees for individual attorneys with between 
10 and 20 years of experience range between $200 per hour and $350 per 
hour. For example in a recent request for attorneys fees filed by the 
National Wildlife Federation (in a case that is NOT completed) the 
attorneys requested $1,054,055.65 in fees, with the lead attorney 
requesting $325 per hours. In that case, the NWF is even charging law 
clerks at $100 per hour.
    This is also a bone of contention for NMCGA. Environmentalists sue 
the government so the government must defend itself with tax payer 
dollars. Groups like NMCGA often must hire lawyers to protect the 
industry, then the government pays for the environmentalists' lawyers--
we get to pay THREE TIMES.
    But, perhaps the most interesting aspect of this debate is ``who'' 
is bringing the litigation and the attorneys employed. A substantial 
amount of litigation in the Northwest is done by the Lewis and Clark 
College of Law's Pacific Environmental Advocacy Center (PEAC). PEAC 
grants college credit to law students who assist with briefing and 
litigation for a client list such as Oregon Natural Desert Association, 
Forest Guardians, National Wildlife Federation, Great Lakes United, 
Audubon Society and other environmental organizations. Although PEAC is 
supported by the Lewis and Clark Law School, including payment of 
professors who write briefs and participate in, PEAC requests and is 
granted attorney fees and costs. For more information, see http://
law.lclark.edu.org/peac. The Law School at the University of Denver has 
the same type of program called the Environmental Law Clinic. According 
to its website, the clinic assumed the environmental responsibilities 
from Earthjustice and is now run by attorneys associated with the 
Center for Biological Diversity. See http://law.du.edu/
naturalresources/clinic
    Even more disturbing is the fact that while land and wildlife 
management agencies and land users are devoting resources, manpower and 
funding, to NEPA compliance and litigation, fewer and fewer resources 
are available to enhance the land. According to the Bureau of Land 
Management (BLM) in Utah, for every hour that the BLM spends writing a 
single grazing environmental assessment (EA), once litigation is filed, 
BLM staff spends 3 to 4 hours defending it in litigation. The Utah BLM 
also reports that only three EAs, which also included substantial 
livestock reductions, have NOT been appealed out of over 40 EAs 
covering the grazing allotments in Utah alone. Once and EA is appealed 
to the Office of Hearing and Appeals, it that an average of five over 
years to get a final decision, just from the administrative law judge. 
It would be interesting to compare the time that the agency is spending 
on preparing for litigation versus what is spent on on-the-ground land 
management. According to the Utah BLM, the Nevada and Idaho BLM offices 
suffer the same problems. According to this BLM official, the BLM 
grazing program is ``paralyzed'' in litigation. Based upon this amount 
of litigation, the BLM will not be able to complete all grazing term 
permit renewals by 2009 as directed by Congress.
    The Government Accounting Office (GAO) recently issued a report on 
how costly grazing on federal lands is to tax payers. My question is 
how much of that cost is in land management versus regulatory 
compliance and litigation? On the other hand, what is the value of the 
land and wildlife stewardship the livestock industry provides?
    NMCGA receives numerous NEPA documents on grazing allotments 
representing untold man hours of labor in creation. Grazing is an 
``action'' that has been ongoing in the West for literally hundreds of 
years. It is hardly a ``major federal action.'' But some of the 
documents we have received lately defy reason. They are on renewal of 
grazing of a dozen or less animals. Where is the line drawn for a 
``major federal action?''
    In conclusion, NMCGA believes that there must be revision of NEPA 
to relieve the burden imposed by litigation or the threat of 
litigation. That revision should include:
      Using the NEPA process as Congress intended, not as a 
vehicle to justify decisions that have already been made, nor as fodder 
for endless lawsuits
      Ongoing activities, like livestock grazing, that have 
been going on for hundreds of years should fall under a categorical 
exclusion. If uses, such as grazing, are to be analyzed that should be 
on the overarching use of the land, not micro managing items like 
seasons of use, grazing methods, and animal numbers. There is extensive 
NEPA analysis at the forest management level, which includes grazing. 
Why is there additional NEPA necessary?
    Thank you for your time and attention. If you have questions, I'd 
be happy to try and answer them.
    NOTE: A copyrighted article submitted for the record by Ms. Cowan 
has been retained in the Committee's official files.
                                 ______
                                 

    Response to questions submitted for the record by Caren Cowan, 
       Executive Director, New Mexico Cattle Growers' Association

1.  Professor McGarity says in his testimony that the notion of 
        ranchers getting removed from federal lands is a ``hypothetical 
        horror.'' Can you comment?
    Professor McGarity is simply incorrect in his beliefs. As New 
Mexico Cattle Growers' Association (NMCGA) member Marinel Poppie 
testified before the Task Force in June 2005, the impacts on ranchers 
are real and devastating. Dr. Poppie's full testimony with its 
voluminous attachments is part of the record of the June 18, 2005 
hearing in Show Low, Arizona. However, this portion provides the answer 
to the question:
    Unfortunately I don't think my NEPA horror story is that different 
from most of my neighbors or other allotment owners throughout Region 
3. On October 27, 2001, I was issued a term grazing permit for 396 cows 
and eight horses. The permit was to be effective until February 28, 
2011 per the terms and conditions of the permit. Little did I know at 
the time the region was entering into a severe drought. In 2002, due to 
that drought, I took a temporary and voluntary reduction in my number 
to approximately 300 cows and eight horses. I have obtained the bills 
for the actual number of cattle run on the Roberts Park Allotment for 
the 16 years previous to my purchase. That averaged 379 head per year. 
(See attachment A)
    One of the statements made by the range staff officer over my 
allotment was that adequate livestock water is the key to prevention of 
overgrazing. He further stated my allotment was 100 percent watered.
    In June of 2003 I learned that the USFS had begun NEPA analysis on 
my allotment and had provided scoping documentation to the public 
without ever involving me in any of the process. The USFS was proposing 
to cut my allotment by 50 percent. Can you imagine what cutting your 
pay check by 50 percent would do to you and your family?
    When I was informed of the proposed action, I received no 
justification for such drastic action. When I requested that 
justification, all I was provided was a few old data sheets with no 
dates or signatures. There was no recent monitoring data or even 
historic trend data available on which to base a decision.
    For the past two years I have hired my own range management 
consultant to provide scientific data on the condition of my allotment. 
His data indicates that there is ample forage not only for my permitted 
numbers, but additional livestock (attachment B).
    My allotment has 43 stock tanks that were not disclosed to the 
public, as well as three drinkers and two water storage tanks. I have 
been diligent in continuing to improve watering facilities on the 
allotment. I have repaired two major watering systems that have opened 
vast areas of rangeland that had not been grazed for years. I have and 
will continue to improve the allotment and have worked toward a good 
working relationship with the USFS. In 2003 I was asked to list 
improvements I planned for the future. It was a three-page typed list, 
yet even after I completed some of the projects on the list, I was told 
that no matter how much I improved the rangeland, my allotment would be 
cut by 50 percent or more. It certainly appeared to be a predetermined 
decision and not something that could or would change through any 
public process.
    Equally as egregious is the fact the USFS planted the seed with the 
public that my allotment should be cut and provided them incorrect 
information about the allotment, so that there would be public support 
for their proposed cut.
    During the balance of 2003 and into 2004 there were some staff 
changes at the ground level in my district. The working relationship 
with the USFS improved and there was support to provide some management 
flexibility for my operation based on actual range condition.
    Then the next bomb hit. On August 19, 2004, the USFS issued an 
``executive summary'' of the NEPA required environmental assessment 
(EA) of my Roberts Park Allotment. Generally, EAs are 10 to 15 page 
documents, while environmental impact statements (EISs) are more full 
blown in-depth analysis that can run in the hundreds of pages.
    Imagine my surprise when I received a 35 page document (attachment 
C) with the USFS's ``proposed'' alternative to cut my permit to 240 
head of livestock, with 40 head of those suspended for five (5) years. 
Although I had worked to craft an alternative of my own that would 
allow me to stay in business, it was completely ignored at the 
supervisor's office level. Additionally, the document was biased to the 
``preferred alternative'' and grazing is maligned throughout.
    Adding insult to injury is the fact that the document did not even 
provide a firm comment deadline. Many of these documents now days only 
tell those who wish to participate in the process that they have 30 
days from the date the notice of the document appears in the local 
paper closest to the allotment or forest supervisor's office. And, when 
you call the office, they won't tell when it appeared in the paper. 
This makes participation by groups like the New Mexico Cattle Growers' 
Association and others difficult because they don't get the local paper 
for every forest allotment in the state. (testimony attached)
    Additionally one only has to look at statistics from Catron County, 
New Mexico, commencing in 1994 when NEPA application began by the U.S. 
Forest Service, followed soon after by litigation involving several 
federal environmental laws. Grazing animal unit months (AUMs) fell by 
more than 200,000. (document attached)

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                                 ______
                                 
    Ms. McMorris. Ms. Sease?

             STATEMENT OF DEBBIE SEASE, SIERRA CLUB

    Ms. Sease. Thank you, Madam Chairwoman. On behalf of the 
Sierra Club's 750,000 members, we appreciate this opportunity 
to offer testimony on this important law. NEPA was a visionary 
commitment to the American people. It provides three pillars 
for environmental stewardship in this country. The first is a 
recognition that protection of the environment is a basic 
American value. It spans the gambit from liberal to 
conservative. Protecting the air we breathe, the water we 
drink, the wildlife that we share the planet with is a value of 
the American people.
    The second is the requirement that the Federal government 
take action that when it is going to engage in something that 
is a major action, it consider alternatives, it provide 
information and that it look at the impact of those actions on 
the environment. It is what we call the look before you leap, 
it is a common sense approach.
    The third critical pillar of NEPA and one that I think is 
particularly important in the context of these public hearings 
is the recognition of the importance of public participation. 
NEPA is an Act about democratic processes, about information 
being open to people and opportunities being provided for them 
to give a view when the Federal government is going to take an 
action that affects them or their environment.
    The National Environmental Policy Act is one of the 
nation's great success stories. I have submitted for the record 
a link to a report that looks at transportation projects that 
have been approved, not blocked, by the application of NEPA. 
This Committee is looking at concerns about litigation on NEPA. 
Litigation is a tool that allows citizens and other local 
stakeholders to insure that their voices are heard and that the 
law is being implemented. More often than not, NEPA litigation 
does not end up in a project being blocked. It informs the 
project. We believe that, by and large, it makes for better 
projects.
    NEPA generates less than 2% of the NEPA documents in a 
given year generate litigation. That is a very small 
percentage. That percentage could be reduced if the agencies, 
in fact, were more proactive, did more assessment, put forward 
a good analysis at the front end. And it is not just 
environmental groups that use lawsuits to shine a light on 
government actions under NEPA. It was Boise Cascade in the 
Snowmobile Association that filed suit under NEPA provisions 
when President Clinton adopted the Roadless area review and 
protection. Now while I did not agree with their outcome, I 
would certainly defend their right to file that lawsuit. It is 
a way of having their voice heard.
    The levee lawsuits that have been discussed here today, I 
think it is very regrettable that these are reaching the 
proportions of an urban legend. If you look at the facts, 
neither the 1977 lawsuit on levees nor the 1996 lawsuits on 
levees contributed to the flooding of New Orleans. In fact, the 
General Accounting Office, you do not have to believe the 
Sierra Club on this, you can look to a government agency, noted 
that not only did the lawsuit in 1977, was it not responsible 
for the flooding, but that it might have actually prevented a 
worse disaster than if they had gone forward with their 
original proposal.
    In terms of grazing, I think the thing that is important to 
note is that only three grazing NEPA lawsuits have resulted in 
removal of cattle from allotments and in none of those cases 
was it merely over the procedure of NEPA. In each of those 
cases, there was also a finding that there was damage, 
environmental damage that was not acceptable. Ninety nine point 
nine percent of allotments are approved on an ongoing basis, 
even though the BLM and the Forest Service have both been very 
remiss in conducting the assessments that are required under 
NEPA.
    You have asked what our concerns are regarding the 
implementation of NEPA and my statement covers these, but I 
will just very quickly say that recent expansion of--I am 
losing the actual term--of categorical exemptions, the 
restricting of public involvement and review and the limiting 
of judicial scope and the limiting of requirement of 
consideration of alternatives. They are all implementation 
aspects of NEPA that we think should be addressed. Thank you.
    [The prepared statement of Ms. Sease follows:]

                 Statement of Debbie Sease, Sierra Club

    Madame Chairwoman, Members of the Task Force on Improving the 
National Environmental Policy Act.
    My name is Debbie Sease. I am the Legislative Director for the 
Sierra Club. My business address is 408 C St. N.E., Washington, DC 
20002. Thank you for inviting the Sierra Club to testify at this very 
important hearing.
    On behalf of the Sierra Club's more than 750,000 members, thank you 
for the opportunity to testify on the National Environmental Policy 
Act.
    Sierra Club, founded in 1892, is the nation's oldest grass-roots 
environmental organization. Sierra Club's purpose is ``to explore, 
enjoy and protect the wild places of the earth; to practice and promote 
the responsible use of the earth's ecosystems and resources; to educate 
and enlist humanity to protect and restore the quality of the natural 
and human environments.'' As concerned citizens, the Sierra Club's 
750,000 members are committed to securing policies that protect, 
preserve and restore environmental quality.
    Signed into law by President Nixon in 1969, the National 
Environmental Policy Act, often referred to by its acronym NEPA, 
safeguards our nation's air, water and lands by requiring federal 
agencies to provide an assessment of the environmental impact of and 
alternatives to any major federal action that could significantly 
affect the quality of the environment. Under NEPA the agencies must 
examine the impact on the environment, consider alternative proposals 
and seek to minimize harmful effects of the project, disclose the 
findings to the public and get citizen input into the decision making 
process.
    NEPA guarantees that Americans affected by a federal action will 
get the best information about its impacts, a choice of good 
alternatives, and the right to have their voice heard before the 
government makes a final decision. By making sure that the public is 
informed and that alternatives are considered, NEPA has allowed 
communities to reconsider some damaging projects and in countless cases 
helped improve those projects.
    At the heart of NEPA is its requirement that alternatives must be 
considered--including those that will minimize possible damage to 
public health, environment or quality of life. NEPA also lets Americans 
have a say before the government makes its final decision about a 
project.
    The National Environmental Policy Act is one of the nation's great 
success stories. It is a law that when properly implemented saves time 
and money in the long run by reducing controversy, building consensus, 
and ensuring that a project is done right the first time. There is no 
need to overhaul NEPA because it works. Limiting public involvement and 
weakening environmental review won't avoid controversy or improve 
projects, it will only weaken our participatory democracy.
    The Task Force is to be commended for seeking public input on the 
implementation of NEPA, particularly in light of CEQ reports from 1997 
and 2003, both of which found that any flaws with NEPA lie in its 
implementation rather than the law. However, we would urge that the 
Task Force recognize that the 5 hearings it has held to date do not 
begin to provide a comprehensive picture of the public's experience 
with NEPA and its implementation, nor can they offer an accurate 
reflection of the many positive experiences and broad support for NEPA 
among private citizens and public officials.
    Unfortunately, several of the hearing venues were changed at the 
last minute, moving from centrally located population centers to more 
isolated communities, in some cases changing from weekend to weekday 
schedules. In some cases proponents of NEPA were denied an opportunity 
to offer testimony. For example, the third hearing on July 23rd 
intended to cover the role of NEPA in the southern states, was moved 
from Houston, Texas (population 1,953,000) to the small east Texas town 
of Nacogdoches (population 30,000). Eight of the 10 witnesses 
represented mining and timber extractive industries. Local Sierra Club 
members asked to testify at the hearing but were turned down.
    It is worth noting that some of the requirements of NEPA about 
which critics have complained are those that require that the public be 
given access to information and be given a full range of opportunities 
for the public to be heard, through formal comment periods, hearings, 
etc.

NEPA Success Stories
    By making sure the public is informed and alternatives are 
considered, NEPA has prevented some damaging projects by offering 
common sense alternatives that actually have significantly improved 
projects. It has contributed mightily to the enhancement of road and 
bridge projects, toxic site clean-up, and improvement of logging and 
drilling projects all over the country. As part of my testimony, for 
the record, I'm submitting a link to a report titled, The Road to 
Better Transportation Projects: Public Involvement and the NEPA 
Process, which outlines several examples of successful NEPA reviewed 
projects.
    http://www.sierraclub.org/sprawl/nepa/sprawl--report.pdf
    An example from that report that illustrates NEPA's ability to 
enhance projects without impeding them comes from the construction of 
I-70 in Colorado. A portion of I-70 through Glenwood Canyon, as 
originally designed, would have had massive negative impacts on 
environmental and public use values. Through the NEPA process, citizens 
successfully advocated for design changes to the road. These changes 
included the use of tunnels to limit noise and visual impacts, a 
different construction method that reduced damage to the canyon, and 
the inclusion of public facilities (rest stops, bike and jogging path, 
and a boat launch.) The project has received more than 30 awards for 
innovative design and environmental sensitivity.

Litigation Concerns about NEPA
    Litigation is a tool that allows citizens and other local 
stakeholders to ensure that their voices are heard and that NEPA is 
being implemented. It is the law that alternatives are sought and 
environmental impact statements are written if a project affects a 
community in a ``major'' or ``significant'' way. Federal agencies are 
required to ``look before they leap.'' If they do not, litigation is 
the last opportunity to ensure that they comply with the law. More 
often than not NEPA litigation does not prevent projects from 
happening; it only provides insurance that all alternatives are 
considered and the best information is available and utilized. It 
allows the public an opportunity to voice concerns and be part of the 
democratic process.
    NEPA generates a proportionately low volume of litigation. Federal 
agencies primarily prepare Environmental Assessments (EAs), often 
eliminating public involvement, rather than an EIS. There are 
approximately 50,000 EAs, 500 draft, final and supplemental EISs for 
the ``major'' federal actions of which only about 100 lawsuits are 
generated, representing a mere 0.2% of the NEPA documents produced 
annually. (CEQ: 25th Anniversary Report).
    Moreover, it is not just environmental groups that use NEPA to 
shine light on the government's decision-making process. For example, 
it was Boise Cascade Corporation and the American Council of Snowmobile 
Associations, among others who sued under NEPA to overturn the Clinton 
Administration's Roadless Rule in our national forests. Another example 
would be the New Mexico Cattle Growers Association suing under NEPA 
concerning habitat designation for the Southwestern Willow Flycatcher, 
an endangered species.

Save Our Wetlands vs. Rush--1977
    I'd like to address the 1977 and 1996 lawsuits over which the Task 
Force has expressed specific concern.
    After 1965's Hurricane Betsy, Congress ordered the Army Corps of 
Engineers to develop a flood protection plan for New Orleans. The 
Corps' proposed project would have built a 25-mile long barrier and 
gate system from the Mississippi border to the Mississippi River. As 
designed, the project would have choked off water exchange into Lake 
Pontchartrain, dooming an incredibly productive fishery. Communities 
around the Lake and local fisherman opposed the project because of the 
massive impact it would have had on the economy and environment in the 
region. In addition, blockading Lake Pontchartrain would have left New 
Orleans unable to pump out water through the lake in the event of a 
flood from the Mississippi River or heavy rains from a tropical storm. 
In the end, that is why local groups advocated for building higher and 
stronger levees immediately around New Orleans as a simpler and safer 
alternative to the Corps' plan.
    In 1977, after the Army Corps of Engineers refused to evaluate the 
impacts of its proposed project and consider ways to reduce them, Save 
Our Wetlands filed suit and secured an injunction from U.S. District 
Judge Charles Schwartz, Jr., who concluded that the region ``would be 
irreparably harmed'' if the barrier project was allowed to continue and 
chastised the Army Corps of Engineers for a shoddy job. The Judge 
required the Corps to properly study its proposed massive new levee 
construction project before moving forward. The Corps eventually 
decided on its own to pursue an alternative plan.
    Recent testimony from the Government Accountability Office 
indicates not only that this lawsuit wasn't responsible for the 
devastation of Katrina, but that it may have had a protective impact. 
When the GAO testified before the Energy and Water Subcommittee of the 
House Appropriations committee, they reported that flooding in New 
Orleans would have been worse if the original plan had moved forward.
        In fact, Corps staff believe that flooding would have been 
        worse if the original proposed design had been built because 
        the storm surge would likely have gone over the top of the 
        barrier and floodgates, flooded Lake Pontchartrain, and gone 
        over the original lower levees planned for the lakefront area 
        as part of the barrier plan.
    (Testimony of Anu Mittal, Director Natural Resources and 
Environment, General Accountability Office Before the Subcommittee on 
Energy and Water Development, Committee on Appropriations, House of 
Representatives, 9/05)
    In the 1977 case, a federal judge demanded that the Army Corps 
provide an adequate environmental impact study as required by NEPA. 
Ultimately, the judge enjoined only the Lake Pontchartrain floodgates 
portion of the project, and not any of the proposed hundreds of miles 
of levees. Years later the Army Corps abandoned the project on its own, 
after determining that it was not the most appropriate action. In 
addition to the widespread local opposition from communities and 
fishermen the Corps was concerned that the project risked replacing one 
major threat with another.

Mississippi River Basin Alliance, et al. v. H. Martin Lancaster--1996
    In the mid-1990's, the Army Corps of Engineers proposed raising 
hundreds of miles of levees 100 miles north of New Orleans in 
Louisiana, Arkansas, and Mississippi. Conservation groups and others 
did not oppose the idea of raising the levees, but they did have strong 
concerns about the fact that Corps wanted to drain as much as 11,000 
acres of bottomland hardwood wetlands, crucial to health and safety of 
the Lower Mississippi Basin, to supply the construction material for 
those levees.
    And they weren't the only ones who had concerns: The U.S. Fish and 
Wildlife Service, Environmental Protection Agency and the Louisiana 
Legislature all urged the Corps to look at how the proposed project 
would have impacted the area. It refused to do so. That led the Sierra 
Club, American Rivers, the National Wildlife Federation, Arkansas and 
Mississippi Wildlife Federations, and the Mississippi River Basin 
Alliance to take the Corps to Court. The case was soon settled, with 
the Corps of Engineers agreeing in 1997 to look at ways of minimizing 
the damage to the wetlands.
    But other problems plagued the project. According to a 1997 Baton 
Rouge Advocate article, ``Corps officials said it will take them 30 
years to finish the levee work. That much time is required because 
funding is lacking for the projects--not because of the new 
environmental study, called an environmental impact statement.''
    Conservation groups never opposed raising the levees; just the 
destruction of wetlands in order to supply fill material for them. And 
it wasn't just conservation groups; even the Louisiana Legislature had 
concerns. The case was settled one year later but the Corps never had 
the funding to move ahead on the project.

Success with Litigation through NEPA Review
    It is true that on some occasions lawsuits filed under NEPA have 
stopped ill-conceived projects. With the knowledge we have today we can 
look back with relief and gratitude for the 1972 Court Decision that 
enjoined the Corps of Engineers from dredging the hardwood wetlands 
that were recently discovered to be perhaps the last sanctuary of the 
Ivory-billed Woodpecker.
    In 1971, shortly after NEPA's enactment, the Army Corps of 
Engineers advances a proposal to dredge and channelize the Cache River 
in Arkansas for flood control. The dredging would have had adverse 
effects on the vast tracts of bottomland hardwood wetland in the river 
basin that supports several species of wildlife, including the recently 
rediscovered Ivory-billed woodpecker. Environmentalists challenged the 
adequacy of the Corps' NEPA analysis in court, pointing out that the 
Corps had failed to evaluate alternatives. The court enjoined the Corps 
from proceeding until it fully considered alternatives (Environmental 
Defense Fund v. Froehlke, 473 F.2d 346 (8th Circuit, 1972). Subsequent 
public outcry over the project also led to the abandonment of the 
dredging project and the creation of the national wildlife refuge where 
the Ivory-billed woodpecker was recently sighted.

Implementation versus Changing the Law
    In a 1997 report, ``NEPA, A Study of its Effectiveness After 
Twenty-Five Years,'' the President's Council on Environmental Quality 
deemed the law successful. CEQ Chair Kathleen A. McGinty stated:
        Overall what we found is that NEPA is a success--it has made 
        agencies take a hard look at the potential environmental 
        consequences of their actions, and it has brought the public 
        into the agency decision making process like no other statute. 
        In a piece of legislation barely three pages long, NEPA gave 
        both a voice to the new national consensus to protect and 
        improve the environment, and substance to the determination by 
        many to work together to achieve that goal.
    The 1997 CEQ study concluded that flaws with NEPA lie with agency 
implementation, not the law itself. Subsequently, a more recent report 
issued by the Bush Administration's in 2003, ``Modernizing NEPA 
Implementation,'' made no recommendations for amendments to NEPA by 
Congress. That report also focused on improving implementation, not 
changing it.
Categorical Exclusions from NEPA Review
    One of the most serious and growing problems in the implementation 
of NEPA is the increased use of ``categorical exclusions'' (CE). Now, 
CE's are being used on a regular basis to waive review requirements for 
road building, logging, drilling and other practices that may have 
devastating impacts for communities, wild lands, and wildlife habitat. 
Specific NEPA exclusions to date include:
      Executive Order by President Bush directing federal 
agencies to ``expedite'' energy-related permits, thereby shortchanging 
environmental reviews;
      ``Categorical exclusions'' exempting certain logging 
projects from standard review requirements;
      Controversial highway projects slated to be completed at 
an ``accelerated'' pace by reducing the analysis of their impacts on 
the community; and
      Passage of the Healthy Forests Restoration Act, which 
bypasses a critical component of NEPA by limiting the consideration of 
alternatives for projects covered by the law.

NEPA and Grazing Permits
    Some have suggested that grazing permits should be exempted from 
NEPA--charging that NEPA review is unnecessary and redundant and has 
forced ranchers off of their grazing allotments. An examination of the 
facts does not support these allegations.
    The assertion that environmental review at the point of processing 
a grazing permit, is redundant fails to consider that it is the terms 
and conditions of grazing permits that specifies when, where, how many 
livestock will graze. It is these decisions that will have an impact on 
the environment--affecting fish and wildlife, native plants and water 
quality on thousands of acres of land.
    As for the failure to complete these reviews resulting in ranchers 
being forced off their allotments, 99.9% of allotments (despite 
widespread failure to complete the required analysis) are still subject 
to grazing. There are only three cases where NEPA-related litigation 
has stopped grazing from continuing. In each of the three cases the 
livestock were not removed solely because of a failure to comply with 
NEPA, but because it was demonstrated that serious damage was 
occurring. Only one of the cases affected the entire allotment.
    The three cases are:
    1.  National Wildlife Federation v. BLM, 140 IBLA 85 (1997). After 
finding serious ongoing damage to soils, vegetation, riparian areas, 
water quality, wildlife habitat, and recreational sites, an 
administrative law judge ordered cattle temporarily kept off of 10% of 
one grazing allotment, while allowing grazing to continue on the 
remaining 90%. Later, the BLM, of its own accord, decided that grazing 
in the sensitive area affected by the judge's decision made no sense.
    2.  Greater Yellowstone Coalition v. Bosworth, 209 F. Supp.2d 156 
(D.D.C. 2002). Bison from Yellowstone National Park were being shot as 
they entered the Horse Butte Allotment on the Gallatin National Forest 
in Montana to avoid possible transmission of brucellosis to the 147 
cattle that grazed there. The Forest Service had committed to complete 
a NEPA analysis by 1998 to address the impacts of grazing on the 
allotment, including the killing of bison. As of 2002, the NEPA 
analysis was still not completed. In order to prevent further killing 
of bison, the court enjoined grazing on the allotment for one season, 
until the analysis could be completed.
    3.  Western Watersheds Project v. Bennett, Civ. No. 04-0181-S-BLW 
(D. Idaho 2005). The court found that not only had the BLM failed to 
comply with NEPA, but also that grazing in BLM's Jarbidge Resource Area 
in Nevada was causing violations of the BLM's Standards for Rangeland 
Health and standards in the applicable land use plan, and had 
contributed to an 85% decline in the population of sage grouse. The 
court enjoined grazing on 28 allotments covering 800,000 acres. After 
the court entered its order, and before any livestock were removed, the 
plaintiffs and the affected ranchers reached a settlement that allowed 
grazing to continue on the allotments.
    Exempting grazing permits from the application of NEPA, as has been 
the effect of Congressional riders since 2000 and the Agency's failure 
to complete the required analysis is in fact one of the most serious 
problems with implementation of NEPA. It could be best addressed by 
providing the agencies with sufficient funding to conduct the required 
assessments.
Conclusion
    The National Environmental Policy Act represents a commitment that 
this nation made to its citizens more than a quarter century ago. It is 
our profound hope that the investigations of this Task Force will lead 
to better, stronger implementation of this landmark law, not to 
revisions in the law or its implementation that depart from the common 
sense direction of its authors to ``encourage productive and enjoyable 
harmony between man and his environment; to promote efforts which will 
prevent or eliminate damage to the environment and biosphere and 
stimulate the health and welfare of man; to enrich the understanding of 
the ecological systems and resources important to the Nation.''
    Thank you again for the opportunity to present Sierra Club's 
perspective.
    NOTE: An attachment to Ms. Sease's statement has been retained in 
the Committee's official files.
                                 ______
                                 

               Supplement to Testimony of Debbie Sease, 
                   Legislative Director, Sierra Club

Equal Access to Justice Act attorney fees:
    Representative Drake inquired as to how much Equal Access to 
Justice Act attorney fees the Sierra Club receives.
    Because it is not eligible to receive Equal Access to Justice Act 
attorney fees, the Sierra Club generally receives nothing in EAJA fees, 
and even counsel from private firms who represent the Sierra Club 
cannot receive fees from that representation. In NEPA cases in which an 
attorney representing the Sierra Club also represents other EAJA-
eligible clients, he or she may receive EAJA fees on behalf of those 
other clients, and Sierra Club staff attorneys have received EAJA fees 
in those cases. In that latter category, Sierra Club attorneys have 
recovered a total of $70,000 over the last 4 years, i.e. an average of 
$17,500 annually. Under legal ethics laws, the Sierra Club attorneys 
must use these fees to support their legal work, rather than general 
Sierra Club budget expenses.
Oral testimony correction:
    In addition, I misspoke in my oral testimony in reference to the 
percentage of documents annually produced by NEPA litigation. I stated 
the number as 2%. The actual number is .2%.

Excerpts from Sierra Club Report: The Road to Better Transportation 
        Projects
    Faster is better. For decades, this has been a basic American 
value. E-mail zips across the country, replacing ``snail mail.'' Media 
cycles become shorter and shorter. We are tempted to cut corners to 
accomplish jobs more quickly. But sometimes bending or breaking the 
rules for the sake of speed can have disastrous consequences. Sometimes 
quality of work matters as much or more than speed.
    This report is about a landmark law requiring the federal 
government to examine alternatives and seek to minimize harmful effects 
of federally funded projects, like highways, which have the potential 
to damage our health, environment, and quality of life. The National 
Environmental Policy Act (NEPA), which took effect in 1970, requires 
that federal agencies study and disclose the environmental effects of 
their actions and include the public in the decision-making process for 
federally funded projects.
    Public participation and environmental review are fundamentally 
important to the development of high quality projects and protection of 
natural resources. They have contributed mightily to the enhancement of 
road and bridge projects all over the country and are partly 
responsible for the level of environmental quality Americans enjoy 
today. However, the public participation and environmental review 
processes now face serious threats from shortsighted proposals from the 
Bush Administration and the road construction lobby, who seek to limit 
these critical phases of project development by weakening provisions of 
NEPA as they apply to highway construction.

Oregon, Mt. Hood Corridor
EARLY PLANNING FACILITATES DESIGN
    Mt. Hood highway roughly parallels a portion of the Oregon Trail 
and has rich cultural and historic significance. Stretching from the 
community of Rhododendron to its intersection with State Highway 35, it 
passes through the Spotted Owl wetlands and several endangered species 
habitats. This 35 mile segment came under scrutiny as Mt. Hood National 
Forest was becoming an increasingly popular. recreational destination.
    As plans for expansion began, pressure to support economic 
development on the mountain was matched with concern by community 
interest groups and Native American tribal governments to protect 
surrounding natural and cultural resources.
    Oregon's Department of Transportation (ODOT) had begun widening the 
entire highway piece-by-piece, but in 1994 the Federal Highway 
Administration intervened and indicated that the NEPA review process 
was needed before any additional expansion could occur.
    Geoffrey Kaiser, then unit environmental/major projects manager for 
ODOT, wanted a method to consider the highway as a whole instead of 
studying segments individually. ``We proposed an alternative to do a 
combination for Tier 1 EIS and a 20-year master plan,'' he said.
    Completed in 1996, the resulting Mt. Hood Corridor Study yielded a 
set of guiding principles to be applied to all future modifications to 
the entire Mt. Hood Highway over the next 20 years. Establishing the 
guiding resource conservation principles very early in the planning 
stages became the critical step to avoid many later obstacles and 
delays in the development and design phases.
    ``This was the first real project where ODOT introduced NEPA in the 
comprehensive planning phase,'' Kaiser said. ``It took a lot of 
attitude adjustment. It was a challenge for scientists to think more 
conceptually, but they began to realize that by being involved early in 
the planning phase, it lessened the detail work later,'' he added.
    The study involved a large advisory committee representing 
community interest groups as well as development advocates. The group 
found that widening the segment alone would not alleviate congestion in 
the area, and thus recommended alternative solutions to mitigating the 
traffic. These included shuttles, real-time cameras to advise travelers 
of road conditions, and increased enforcement measures like parking 
fees to encourage off-peak visits.
    Kaiser explained the study's message, ``Before you leap to 
widening, make a good effort. So far, it has been a useful master 
plan,'' he said. The plan has since been used to support subsequent 
additions to the highway and other neighboring projects, such as 
relocating a streambed and adding wildlife crossings. ``Each of these 
projects has to prove that the expansion does not exceed the 
[development] capacity of the area,'' said Kaiser.
    Donna Kilber, the NEPA coordination manager at the time, attributes 
the successful study to the NEPA process. ``If the NEPA process wasn't 
there, I doubt we would have taken the overall look like we did,'' said 
Kilber.

Montana, US-93
PUBLIC INVOLVEMENT PROMPTS CREATIVE SOLUTIONS
    US-93, north of Missoula in western Montana, faces increased 
congestion from traffic heading toward Glacier National Park. The 
Montana Department of Transportation (MDT) proposed to take a 56-mile, 
two-lane segment of Route 93 and change it into a five-lane, undivided 
highway. This segment runs through the unique cultural landscape of the 
Flathead Indian Reservation, including territory in the heart of the 
Rocky Mountain ecosystem and the Ninepipe Wetlands Area, an ecosystem 
with thousands of kettle ponds supporting unique and fragile species of 
wildlife.
    Under NEPA's rules, the Confederated Salish and Kootenai tribal 
government and grassroots citizen groups such as Flathead Resource 
Organization (FRO) were able to challenge MDT--first, on the validity 
of the initial Environmental Assessment (which evaluated only a seven-
mile stretch of the 56-mile project) and later on the Environmental 
Impact Statement (EIS). Federal agencies are required to make and 
evaluate EIS reports in order to determine the consequences of a 
proposed action, analyze action alternatives, and share the results 
with other agencies and the public. By forcing MDT to do an EIS, tribal 
members and citizens made MDT look for creative solutions and consider 
alternatives for the highway, which could negatively affect safety, 
environmental issues, and lack of protection for tribal culture and 
family farms.
    A Federal Highway Administration decision stipulating that the 
tribes and MDT must agree on the project design prompted them to hire 
landscape architect Jim Sipes of Jones & Jones (a firm based out of 
Seattle, Washington). Sipes helped create a final design agreed to by 
all government entities involved.
    Sipes's design addressed safety, environmental, and cultural 
concerns about sprawl. Slow curves in the roadway are planned along the 
most scenic areas of the route to discourage speeding and follow the 
contour of the land. One mile of the highway will be relocated around 
the Ninepipe Wetlands area. Additionally, an unprecedented 42 wildlife 
crossings and wildlife fencing will be added at the request of the 
Tribes to reduce harm to area wildlife.
    Amanda Hardy, research ecologist at the Western Transportation 
Institute at Montana State University, is involved with the design and 
evaluation of the wildlife crossings. She said NEPA allowed ``the 
public and agencies an opportunity to comment'' so alternatives like 
these could be pursued.
    ``US-93 became a project dramatically different than what the DOT 
had ever done,'' said Sipes. ``NEPA gave us more weight so our voices 
could be heard--without it, U.S. 93 would have been a standard four-
lane highway with destructive impacts to the community,'' he added.
                                 ______
                                 

    Response to questions submitted for the record by Debbie Sease, 
                   Legislative Director, Sierra Club

1. In your testimony you suggest that there is a few cases where 
        litigation has forced grazing to stop. However in each of the 
        cases that were filed there was a request for attorney's fees 
        under the Equal Access to Justice Act. Can you tell the Task 
        Force about how much the Sierra Club received in fees under 
        EAJA?
    Because it is not eligible to receive Equal Access to Justice Act 
attorney fees, the Sierra Club generally receives nothing in EAJA fees, 
and even counsel from private firms who represent the Sierra Club 
cannot receive fees from that representation. In NEPA cases in which an 
attorney representing the Sierra Club also represents other EAJA-
eligible clients, he or she may receive EAJA fees on behalf of those 
other clients, and Sierra Club staff attorneys have received EAJA fees 
in those cases. In that latter category, Sierra Club attorneys have 
recovered a total of $70,000 over the last 4 years, i.e. an average of 
$17,500 annually. Under legal ethics laws, the Sierra Club attorneys 
must use these fees to support their legal work, rather than general 
Sierra Club budget expenses.
                                 ______
                                 
    Ms. McMorris. Thank you, everyone, for being here today. 
Excellent testimony. I think it is going to be helpful, I know 
it will be helpful to the Task Force's efforts to look at NEPA 
and look at ways that we might be able to improve the NEPA 
process.
    I would like to open it up for questions at this time. Mr. 
Radanovich? Would you like to ask some questions first, Mr. 
Gibbons?
    Mr. Gibbons. Thank you, Madam Chairman, and I apologize for 
being distracted there for a moment to our guests and panelists 
today. Thank you and welcome. Your testimony has been very 
helpful.
    First of all, let me back up and make a statement and I 
think we all agree that many times the environmental laws of 
this country are and have been intended to help us protect the 
environment. I do not think anybody would disagree with the 
intent of the law itself. What has happened is a transformation 
over the years, a transformation from using the law to improve 
the environment, to improve the processes by which we operate 
in the environment, to a process now of prohibition of 
operating in the environment.
    So if I ask Mr. McGarity a question, do you believe, Mr. 
McGarity, that every lawsuit filed that you have reviewed in 
the 27 years you have practiced environmental law, or taught 
environmental law, I should say, at the University of Texas, 
was filed for the specific purpose of improving the environment 
rather than for, say, frivolous purpose to block or stop a 
project?
    Mr. McGarity. There have been lawsuits brought to block 
projects. I will not say, I hesitate to characterize as 
frivolous, because no Rule 11 sanction has ever been levied 
against any plaintiff in an environmental lawsuit----
    Mr. Gibbons. Then that brings my next question.
    Mr. McGarity. Can I finish just a moment? Many of those, on 
the other hand, were brought by industry to stop EPA from 
regulating. So it definitely cuts both ways.
    Mr. Gibbons. Sure. Let me ask the question to you and then 
perhaps to Mr. Winn and we can get both sides of the story. If 
we are to use Rule 11, would it not be proper then to require 
those bringing a lawsuit to file a bond for the fact that if 
there is a frivolous purpose determined by the judge in this 
process or if the damages derived in the delay could be 
assessed to the losing party? Mr. McGarity?
    Mr. McGarity. I think that would be a terrible thing to do, 
because that would advantage the industries that have lots of 
money to put forward and can go to the banks if need be to get 
money to post that bond.
    Mr. Gibbons. Well, why do you think----
    Mr. McGarity. And it would disadvantage local groups like 
the group that I have helped on one occasion, the Bear Creek 
Citizens for the Best Environment Ever of Yocum, Texas.
    Mr. Gibbons. Well, first of all, I think when you look at 
seven groups who are traditionally the leaders in all of this, 
Mr. McGarity, it just proves when you look at the overall 
budget the disparity you have talked about in terms of 
financial wealth. Seven groups have filed 1,649 lawsuits.
    Mr. Winn, do you believe that filing a bond by the 
plaintiff or person bringing the charge would be the proper 
thing to do to insure that we reduce the number of frivolous 
lawsuits?
    Mr. Winn. I like the idea generally, but I do not know how 
practical----
    Mr. Gibbons. You will have to turn your mike on, please?
    Mr. Winn. I do not know how practical it would be. For 
example, in the situation we are presented in this instance, 
what would be the amount of the bond? We are talking about a 
bond of $100 billion or something in that vicinity. Although I 
think the requirement for a bond----
    Mr. Gibbons. Well, let me just tell you, I think a judge 
could make a determination. For example, if it is a delay, what 
is the delay from this year or last year to this year, for 
example, in the energy cost if you are a highway builder? And a 
lawsuit is brought for the purpose of stopping, delaying the 
lawsuit. We know delay is financially the death of a project in 
many cases, because the changes in the cost of getting the 
construction acquired. What we are looking at is a difference 
in cost that would be attributed to or loss of revenue 
attributed to the delay in achieving the end result, if the end 
result found by a court was properly and environmentally 
sanctioned.
    Mr. Winn. Yes, sir, but normally an injunction action is 
the vehicle used by the plaintiff. And, of course, a bond would 
normally be required until after there is a final injunction 
hearing. Any TRO or preliminary injunction would already 
require a bond. So I think that that is already provided for in 
the law.
    I do not know that in the major massive sort of situation, 
however, as we had with Save our Wetlands v. Rush, it would 
have been a very practical solution to require the posting of a 
bond. Because you would have obviously be looking at a bond in 
the billions of dollars, at least that was the potential.
    Mr. Gibbons. Well, then, looking at the fact we have, and 
Madam Chairman, I will wrap up quickly, 1,649 lawsuits filed by 
seven groups, how do you achieve parity or how do you achieve 
some measure of change that one, does not block the door to 
litigation, allows for litigation when it is a reasonable and 
proper purpose, but yet stops the challenges for the mere 
purpose of defeating, delaying, stopping any project? Or, for 
example, in Mrs. Richards' testimony, the grazing on public 
land?
    Mr. Winn. I think one thing that has to be required is a 
more complete presentation and protection by all the parties 
involved. If you read Judge Schwartz' opinion, and it is 
available on the Internet--it is an unpublished opinion, but it 
is available--he takes real exception to the job performed by 
the Corps of Engineers and its lawyers, both in their 
environmental impact statement and in the trial of the 
injunction. There is something wrong when one U.S. District 
Court Judge and two sets of lawyers can defeat a proposal in a 
program that has been authorized with, as I understand it, $200 
million of taxpayer funds by the Congress of the United States, 
which was studied, modeled and planned for years by the Corps 
of Engineers, which had as its purpose the protection of the 
lives and the property of hundreds of thousands of people, and 
yet one judge, two sets of lawyers are able to frustrate that. 
And that is unfortunately what happened in this instance.
    Mr. Gibbons. Thank you, Madam Chairman.
    Ms. McMorris. Mr. Grijalva?
    Mr. Grijalva. Thank you, Madam Chairman. Before I ask my 
questions, I want to note that in yesterday's ``New York 
Times'' that the Attorney General in Louisiana is beginning an 
inquiry as to why the collapse of a failure of the levees 
there. I note with interest that not once in that article or 
any subsequent article is there a mention of environmental 
litigation as the root cause for the collapse and the failure. 
I note such words as malfeasance, bad design, poor materials, 
lack of coordination as being the areas of inquiry. I just want 
to note that for the record. I think that inquiry is going to 
go a long way to clarifying some of the discussion points that 
we have had here up to now.
    For Mr. McGarity and Ms. Sease, a couple of questions. In 
your view, what is the main benefit of NEPA? And then the 
follow up question to that, there is no NEPA, let us presume 
there is none hypothetically. What then becomes the avenue for 
arbitrary or capricious acts by government, for the public to 
have redress, if there were no legal process at this point? The 
benefit and what if there was not any?
    Mr. McGarity. Let me speak to that. In terms of the 
benefit, I am going to divert slightly. This Monday, I was at a 
celebration at the American Enterprise Institute for the Office 
of Information and Regulatory Affairs at OMB, which intervenes 
into agency actions and manages a process called the regulatory 
impact assessment process. That process had its model as NEPA. 
No one disagrees anymore that government action ought to be 
evaluated, studied, looked at the pros and the cons of 
government action. NEPA started that in 1970. The RIA process, 
President Reagan put into place in its full form in 1981. It is 
the value of looking before you leap, as Ms. Sease said, of 
understanding what it is you are about to do before you do it 
and its impact on the environment, the economy and other 
things.
    Mr. Grijalva. Ms. Sease?
    Ms. Sease. The only thing I would add to that in terms of a 
value of NEPA is the chilling effect it has on agencies putting 
forward projects that could not withstand public scrutiny, so 
the mere fact that what you propose is going to have a light 
shined on it that is going to be exposed to public scrutiny has 
actually limited the number of deeply flawed projects that 
agencies put forward. So that, I think, is a hidden benefit of 
NEPA.
    And to go to your second question, if there were not a 
NEPA, how would we have this set of checks and balances? If 
there were not NEPA, we would need to invent it and I would 
hesitate--I guess that if there were not NEPA, that the group 
of people gathered here today would be talking about how to 
invent it, because things would be such a mess.
    Mr. Grijalva. And on another point, Madam Chair, I had the 
pleasure of growing up on a ranch where my dad worked, a cattle 
ranch in southern Arizona. It was a good lifestyle. The reason 
I did not remain there or my dad did not remain there, I do not 
know if it is much to do with the NEPA process or grazing 
permits, but it had to do with the consolidations and the 
conglomerates beginning to take over the ranching industry. And 
the family that had that ranch that my dad worked for could not 
afford to keep ranching, period. So I think there are economic 
issues there that outweigh any of the points that are being 
made about NEPA and the grazing permits.
    One last question for the two witnesses that I had called 
upon earlier, Mr. McGarity and Ms. Sease. One of the things 
that concerns me is in changes to NEPA is the effect that I 
think potentially disproportionate effect that already occurs 
with environmental issues and low income and communities of 
color across this country. Right now, NEPA gives these 
communities equal access in terms of if government is planning 
a project, a permitted project, these communities have access 
and they have a recourse in which to try to get information. My 
question to both of you is, if there is no NEPA, these 
communities would not have the bonding capacity, would not have 
anything other than a public process that they used to hold the 
government accountable. If we did not have this environmental 
review and did not have NEPA, what in your perception is the 
effect on these low income and communities of color that are 
already disproportionately burdened by permitted uses?
    Mr. McGarity. Very briefly, CPR has most of the, the most 
prominent environmental justice scholars in the country, NCPR, 
so we are very concerned with environmental justice. The answer 
is, of course, local communities, people of color, have no 
opportunities to post bonds and such as that.
    NEPA, the other great advantage of NEPA that I did not 
allude to earlier is public participation. It empowers the 
weakest citizen, the least powerful citizen, to make a 
statement to be part of the process of governmental 
decisionmaking that affects them.
    Mr. Winn. Every state in the union, including the state----
    Mr. Grijalva. My question goes to those two witnesses, 
thank you.
    Ms. Sease. I would concur with what Mr. McGarity said. A 
fundamental aspect of NEPA is the right to know and it is that 
knowledge that gives the disenfranchised communities the little 
power that they do have.
    Mr. Grijalva. Thank you, Madam Chair.
    Ms. McMorris. Yes and just so everyone is clear, no one is 
proposing that we repeal NEPA. This Task Force is dedicated to 
looking at ways to improve the NEPA process. NEPA is considered 
landmark legislation and I think it is fair to say that we all 
agree with the intent of NEPA. What we have found is that what 
started out as well intentioned legislation and I think the 
Senator laid it out very well in his comments when he talked 
about some of the unintended consequences of this law and the 
fact that today we have pages and pages of regulatory 
requirements that differ from agency to agency and we have, 
pending right now in Court, thousands of lawsuits.
    And the goal is to simply look at whether or not there is a 
way that we can improve this process so that the environment 
is, so that decisions are made which are going to have a 
positive impact on the environment, but ultimately that we are 
making decisions and that they will be environmentally friendly 
decisions.
    Senator?
    Mr. Johnston. Thank you, Madam Chairman. I just wanted to 
add a couple of things because Katrina has figured so much 
here. I enjoyed Mr. McGarity's testimony. I would agree with 
him that the flood walls were badly designed and constructed. I 
would not agree that the cost was the reason that the Corps 
abandoned the Barrier Plan. As a matter of fact, the Barrier 
Plan was cheaper than the High Level Plan and always was and 
would be now.
    I believe that there is a good chance that it would have 
prevented the flooding, because what the Barrier Plan was 
designed to do was prevent the flood surges in Lake Bourne and 
Lake Pontchartrain and to prevent the surge also in the MRGO. 
And that would have prevented a lot of the pressure and the 
level of the water on the flood walls and I think there is a 
good chance it would have prevented the flooding. There is no 
way you can know that for sure, but I think it probably would 
have done that.
    Ms. McMorris. And if I might be able to interrupt here just 
real quickly, just yesterday in response to the comment that 
was made that it is not certain as to whether or not the 
flooding would, you know, possibly have been worse, Ms. Matel, 
just yesterday before the Senate Energy and Water Subcommittee, 
changed her opinion on her earlier statement and she said that 
it is still to be determined as are issues related to whether a 
project designed to protect a category four or five hurricane 
could or would have been prevented. So I think it is still to 
be determined.
    Mr. Johnston. That is right and one final point. It was 
designed to prevent a Camille. We did not have categories at 
that time, at the time it was designed. But they specifically 
talked about Camille, preventing a Camille, and Camille was 
clearly a category five.
    Ms. McMorris. Maybe since I am still on my five minutes, I 
kind of got us out of order. I did want to follow up with you 
regarding the White House Task Force on streamlining energy 
projects. In your testimony, you laid out some of the 
unintended consequences of NEPA being lawsuits and excessive 
demands for information, the deadlines. Would you comment as to 
how you think that Task Force, what were some of the 
recommendations or what do you believe they might be able to 
help us accomplish if it were reconstituted?
    Mr. Johnston. Well, for example, on deadlines, you know, 
L&G, I believe, is one of the biggest needs this country has. I 
think we have to have by 2020, something like six TCF of 
natural gas, which can come only from L&G. So it is a great 
national need.
    Sensing that, Congress put in a 356 day delay period. Now I 
believe when government agencies want to extend delays and 
there are all kind of deadlines and all kind of energy 
legislation, in order to extend a deadline, I think you ought 
to have to go to the Energy Task Force or CEQ or some other 
group and justify your demand for a delay. Because otherwise, 
they just go on and on. I mean, we do not have any refineries 
in this country. Everybody complains and complains about the 
oil companies. Well, why are the oil companies not building 
them? You cannot cite them. I mean, this process prevents you 
from doing it. So you ought to have an ombudsman, a task force, 
that rides herd on delays. Give a delay if it is necessary, but 
make them justify it.
    These excessive demands for information. I mean, I cannot 
tell you how vexatious they can be. I mean, they want you to do 
all these studies because they are curious about the fish or 
the air quality or whatever. Sometimes, I mean, I could show 
you in projects I have been involved in where it is totally 
irrelevant, totally irrelevant. And yet, as a supplicant, as an 
applicant, you are in no position to complain. I mean, you 
cannot go in and say that is outrageous, because that is the 
same group that can deny your permit, just deny it. And then 
you would have to go to Court and believe me, Court is not the 
kind of thing that you want to subject yourself to if you are 
trying to build a refinery or an L&G project or a levee system, 
because it costs too much and it takes too long.
    Ms. McMorris. Thank you. Mrs. Drake?
    Mrs. Drake. Thank you, Madam Chairman. I would like to 
start with Senator Johnston and I would really like to thank 
you for being here. It is not often that we get to meet and 
talk with people involved in the original legislation, so to me 
this is a real treat. And just to follow up on what Chairman 
McMorris said, none of us think that NEPA is bad. In fact, with 
my work on this Committee, I actually think it was brilliant to 
get Federal agencies talking with each other, finding out the 
impact on each of them and the idea of looking at alternatives.
    But you would agree that since NEPA went into place, there 
have been many other environmental laws that have gone in 
place. And one of the things that I have noticed over this year 
and the work of this Committee is that people use NEPA for 
lawsuits simply because it is the easiest way to get into 
Court. We actually had a witness in Norfolk who said that in 
his testimony, that they file lawsuits under NEPA simply 
because they can and it is easier.
    My opinion, and I would like to know your opinion, is that 
if someone is going to file a lawsuit, there should be 
something based in fact and something that they are violating, 
like clean water, clean air, endangered species. I mean, could 
you comment on that?
    Mr. Johnston. Well, you know, part of the problem is that 
at the time NEPA was passed, the environmental movement was 
much more united. Today, you know, we have some great 
mainstream organizations like the Sierra Club that, by and 
large I do not agree with everything the Sierra Club does, but 
by and large, it is a great organization. But by and large, you 
have all these spin off organizations that will file a lawsuit 
at the drop of a hat and for any reason, they are opposed to 
projects, you know, they are just opposed to projects. The 
balance is not there.
    I would sort of doubt that putting up a bond is the 
solution. But there needs to be some group, I suggested, like a 
task force, that will test the reasonableness of lawsuits as 
well as demands for information, as well as recalcitrance on 
the part of Federal employees.
    Mrs. Drake. Well, you said something very interesting. File 
a lawsuit at the drop of a hat, not based on fact or there is 
something that is wrong. Did you ever envision when NEPA was 
passed, and I think this is more problematic than even the idea 
of posting a bond, but the idea that the American people pay 
for the cost of that litigation? Did you think that was ever 
even envisioned?
    Mr. Johnston. At the time NEPA was passed, the litigation 
explosion which it has generated, was really not contemplated, 
I do not think, by either industry or the environmentalist 
side. The process is a good one. The Act is a good one, by and 
large, it has achieved its purpose.
    Mrs. Drake. It is a very good Act. We do not disagree with 
that at all. We want to see it not be used for what it was not 
intended to be used for.
    Mr. Johnston. Yes, I mean, it has gotten to the point where 
the threat of a lawsuit prevents people from pursuing 
legitimate proper projects, I mean, from either proposing them 
or abandoning them once NEPA litigation is commenced, because 
it is so expensive and so fraught with delay.
    Mrs. Drake. Well, then, I think Mr. Winn could comment on 
that, too, the idea that it is used as a stall tactic, so that 
people give up. You know, they are tired and now the cost of 
the project is just too much and I think it just wears people 
down. So I think what you are saying, a task force or maybe 
something along the lines of in which instances should this be 
allowed to go into Court, if at all? Or should people go into 
Court on other items of environmental law? Mr. Winn, I do not 
know if you want to comment on that.
    Mr. Winn. The jurisdictional basis of getting into Federal 
court on a NEPA suit is really not that difficult a hurdle to 
achieve. And here you had a situation in this particular case, 
the Rush case, in which a challenge to the efficiency and the 
effectiveness of the environmental impact statement, which is a 
massive document that you could have varying opinions on, was 
sufficient to convince one district judge to enjoin the 
proceeding with this project.
    I might add this because I think it is very important. The 
levees that protect against Lake Pontchartrain and the 
Mississippi River overflowing did not fail. They were not 
compromised in any way.
    The problem is, in New Orleans you have 200 miles of 
drainage canals. That means you have 400 miles of flood wall 
and those are not, in any way, levees. They are not much more 
than sheet pile barriers, perhaps with a decorative concrete 
cap. The idea that you could ever build sheet walls, 400 miles 
of sheet wall, that would protect against a storm surge, I 
suggest, is like saying you could have enough policemen to put 
a police officer on every corner to prevent a terrorist attack. 
You cannot do it. You must do something further, you must go to 
the source.
    That is why the Barrier Plan, which would have established 
locks, dams and floodgates between the Gulf of Mexico which 
flows into Lake Bourne, which in turn flows into Lake 
Pontchartrain, would have limited any storm surge. In fact, in 
the decision itself, it is pointed out that it was thought by 
the Corps of Engineers that it would limit a storm surge to no 
more than nine feet, an amount that normally could be handled 
by any sort of barrier plan of levee and flood wall.
    So I suggest that the problem is that we constituted one 
Judge, two sets of lawyers, to be able to overcome the study 
and determine a solution to this tremendous problem that was 
arrived at by the Corps of Engineers. The Corps of Engineers, 
perhaps at the trial of the injunction, if you read Judge 
Schwartz' opinion, did not do a stellar job in presenting its 
case and, for whatever reason, although it did revise the 
impact statement at least once, it failed to finally satisfy 
Judge Schwartz. Unfortunately, we now have the consequences of 
what we see in New Orleans and the southeast Louisiana area 
today.
    Mrs. Drake. Thank you and just to wrap up, Madam Chairman, 
Mrs. Richards and Ms. Cowan, as someone who lives on the shores 
of the Chesapeake Bay, I knew nothing about what you do until I 
got involved in this Task Force and I certainly had my eyes 
opened in the things that you deal with. And I certainly want 
to thank you for what you do, it was very sad to go out and 
hear some of the stories where people had the number of their 
herd was reduced and they were actually in a position of being 
forced to sell their properties. I wish Mr. Grijalva was still 
here to talk a little bit about that.
    But Ms. Sease, I wonder, and maybe you do not know today, 
if there is some way we can get the information of what has the 
Sierra Club collected through this Equal Access to Justice Act 
and being reimbursed for the cost? Do you know?
    Ms. Sease. I do not know off the top of my head, but I 
would be happy to get back to you.
    Mrs. Drake. Thank you. We would like to have that, thank 
you. Thank you, Madam Chairman.
    Ms. McMorris. Mr. Inslee.
    Mr. Inslee. Thank you. I am always interested in these 
things about how people believe that NEPA is responsible for 
everything, including the common cold. I will just say this. 
NEPA was not the reason we had a President of the United States 
who told the public that nobody could have anticipated that 
these levees would fail. That was not NEPA's fault that the 
President had that attitude.
    It was not NEPA's fault that the FEMA director sat eating 
dinner and was more concerned about finishing his dinner plans 
than responding to the emergent nature of this problem. That 
was not NEPA's fault.
    It was not NEPA's fault that funding had not been put 
through to get these jobs done in a multiple of reasons and it 
is not NEPA that is under investigation by the Louisiana 
Attorney General. It is misfeasance and malfeasance by other 
individuals. And if you want to investigate people, investigate 
Congress for not appropriating dollars to get this job done 
that everyone, everyone who had any sense knew was a threat 
because of the system of these levees and the increasing--I 
will not go into the other issue.
    So I am just stunned at the extent that people will go to 
continue their attack on the environmental laws of this 
country. And to use a hurricane and disaster of this nature in 
this regard is most disturbing to me. Now maybe I am a little 
attached to it because I went down to the Astrodome and I 
volunteered for a day because I was so angry at the Federal 
government's inadequate and negligent response to this I just 
had to go. And I went down there and I helped these people for 
a day and did what little I could do for them. And I became 
very attached to them in a short period of time and I can tell 
you they were dignified, gracious, courageous people. And not 
one of them said NEPA is the problem for this, I will tell you 
that. They had a lot of other things to say about the lack of 
the Federal government's response, but talking to those people, 
guys that came up to me holding a bag with their wet socks and 
said, Congressman, this is all I got left in life, but I am 
alive. And I am not happy about what the Federal government 
did. Not one of those people said NEPA is the problem here.
    It is really regrettable that this effort is going on. Now 
with that being said, I want to just ask Professor McGarity if 
there is any statistical evidence to suggest that NEPA 
litigation is in some explosion or that there is this 
infestation of NEPA litigation?
    Mr. McGarity. No, the statistics are relatively constant, 
at least in terms of the lawsuits that have prevailed, where 
the Court has accepted the plan's position. And it is at a 
constant level both at the District Court and Court of Appeals. 
In terms of increase in litigation, yes, there has been some 
increase in litigation in the last five years, four to five 
years, and that is entirely explainable by the function that 
NEPA performs, which is a policing function.
    It is one thing to say you really think this is a wonderful 
act, but if it is not an enforced act, if no one is there 
enforcing it, it is a meaningless act, quite frankly. And the 
one vehicle for enforcing the statute, since we do not have a 
Federal agency that is out there enforcing it, is the public, 
who the NEPA lawsuits----
    Mr. Inslee. Right, and that is what troubles me so much is 
when people continue to use this for propaganda purposes and 
well, there was an explosion of criminal prosecutions after the 
Watts riot, too. And there will be an explosion of litigation 
after the Parisian violence, too. Yes, there may be some 
increase, because we have an explosion of ignoring the 
environmental laws of this country under this Administration. 
Arsenic in our water, mercury in our air, reductions, no 
meaningful response to global climate change issues. We have 
had a wholesale reduction of protections of the environment of 
this country, increasing asthma in our kids and you know what 
the response of this Administration is? Not to comply with 
NEPA, but to try to gut the clean air laws.
    And yet people turn around and blame it on the citizens who 
are blowing the whistle on the ineffective, incompetent, 
incapable, uncaring actions of this Administration when it 
comes to this environment. You cannot scratch an issue in this 
country and not find an administration that has been callously 
indifferent to the environment of this country.
    And I think we ought to be proud of some of these citizens, 
of holding their government to account to abide by the law. And 
I will tell you, in my neck of the woods in the northwest, 
these claims against the government have the highest win rate 
of probably any segment of any litigation I have ever seen. 
These citizens have won these lawsuits and the reason is, is 
because this Administration has ignored the law. Is it such a 
criminal activity for citizens to insist that their Federal 
government that they pay taxes to every April 15 at least abide 
by the law? Is there something morally wrong with that? I do 
not think so and I think we are barking up the wrong tree here. 
Thank you very much.
    Ms. McMorris. OK, you know, I find the gentleman's comments 
a little interesting, considering NEPA is the process by which 
we make these decisions. NEPA in and of itself does not have 
the environmental standards. It was the first of a series of 
environmental laws that were passed in this country. We have 
the Clean Air Act, we have the Clean Water Act, we have the 
Endangered Species Act, that do have standards, that do have 
requirements. NEPA is a process and I question whether or not 
NEPA is necessarily the policing act. It is simply the process 
by which we make decisions that are going to protect the 
environment, insure that we do have clean air and clean water.
    NEPA is held up as one of the cornerstones of NEPA is the 
public input. Throughout the Task Force's hearings in this 
country, we have heard over and over that there are ways we can 
improve the process by which we involve the public and I think 
that is another example of how the Task Force is about seeing 
if we can improve this NEPA process. We are not out to gut 
NEPA.
    For example, when you look at NEPA, you go through this 
whole--you develop the environmental impact statement and the 
public input is not taken until the very end, until that 
document is completed. Perhaps collaboration would be a better 
way, you know, so that the public is involved earlier on in 
that process and at the end there is more agreement rather than 
it simply being a matter of going to court or not.
    I wanted to go back to Mrs. Richards and Ms. Cowan. When we 
think about the impact of NEPA and some of the lawsuits that we 
have had, that we have seen impacting BLM's ability to manage 
range land. I wanted you first just to comment on how it has 
affected you and if you had any ideas on how we could possibly 
reduce the amount of litigation.
    Ms. Richards. Thank you, Madam Chairman. I very much 
appreciate this opportunity. I am sorry that the one gentleman 
had to leave who would hear this. A lot of times it is an 
economic factor that will force people to have to sell, but 
many times that economic factor is from litigation of frivolous 
lawsuits, because NEPA has proven to be successful.
    I would tend to agree with this Task Force that in no way 
do we disagree that the public needs to have disclosure, they 
need to know what is going on. As a public lands rancher, we do 
participate in numerous collaborative efforts. What is very 
disturbing is, at the drop of a hat, and especially, we have 
had numerous cases filed in Idaho at the drop of a hat, because 
there has been a success rate there. I would tend to disagree 
with the two percent aspect. Maybe NEPA is not the complete 
lying factor behind it, but it is definitely one of them that 
forces agencies to push individuals into accepting reductions 
in AUMs, which is like taking the inventory out of the store 
when you are doing that. It definitely affects the business.
    Personally, we budget over $10,000 to $15,000 a year within 
our budget in anticipation of having to go to court, where we 
are not even allowed in at the beginning. We have to get an 
intervention status when our permits are challenged in this 
fact. Again, we support the multiple use aspect. I do not think 
that NEPA, the intent of it is honorable. It is the misuse of 
the Act that we would ask you to be looking at and maybe again, 
as states in my testimony, look at those things that we have 
put forward into making sure that it is used for the citizens 
and those that need to know with the intent of the Act and not 
misused.
    Ms. Cowan. Thank you, Madam Chairman. I come at this 
slightly differently than Brenda, because I work for an 
association and I am not at home on my family ranch. And, I 
too, am disappointed that Mr. Grijalva had to leave. He and I 
grew up about 100 miles from each other and we certainly have 
different views of the world at this point. And my family still 
is at home at the ranch and I hope to be able to, through my 
work, keep them there.
    The BLM, in particular, with the documents I am getting in 
my office today and over the last couple of months, is just 
overwhelmed with NEPA documentation. I have several documents 
out of one district that are on less than a dozen head of 
animals. I believe the smallest one is two, two head. They had 
to do an environmental assessment on two head of livestock.
    Admittedly, the document was only six or eight pages, but 
somebody had to take the time to develop that document and the 
cost of distributing it and, you know, monitoring what was 
going on with those two head would have had a whole lot more 
impact on the environment and a whole lot more usefulness in 
the environment than doing the document.
    We surveyed in the State of Utah, they have recently done 
40 EAs. Only three of them have not been appealed. And for 
every hour that the BLM spends in putting together a NEPA 
document, when one gets appealed, they have to go put in 
another three to four hours. So we are looking at huge amounts 
of time and cost when we could actually be doing work on the 
ground.
    Another frustration is that a lot of these documents are 
done out of file cabinets. They have so much to do, so many to 
do, that rather than going out and doing the monitoring and 
overseeing what is going on on the land, they are pulling stuff 
out of drawers. They are not including the allotment owners at 
the beginning of the process. They do not go to the people who 
know what is going on on the ground, who are likely to have the 
information. As you pointed out, they get to see the document 
at the end and select from a range of alternatives that they 
probably have not had any input in at all. So there is just a 
much better way to do this. We need greater involvement at the 
beginning. I think we need a serious look at categorical 
exclusions for ongoing activities. I mean, is grazing of two to 
ten head a major Federal activity? Where do we draw that line? 
Thank you.
    Ms. McMorris. Thank you. Mr. Inslee?
    Mr. Inslee. Thank you. I want to ask about the use of NEPA 
by extractive industries, which on occasion occurs. In 1995, a 
group of cattle ranchers sued the Clinton Administration 
Rangeland Reform Regulations and the ranchers argued that the 
Interior Department violated NEPA by preparing an inadequate 
EIS on the reform proposal. They lost that argument in the 
District Court. They did not appeal, so I guess the question is 
and let me ask Ms. Cowan to start with and Ms. Sease. Should 
those ranchers have been punished in some fashion for bringing 
that lawsuit, what do you think?
    Ms. Cowan. Absolutely not, but if I can, in my testimony, I 
talked about New Mexico Cattle Growers' has been involved in 
litigation on environmental laws. That is where the battlefield 
is. If we do not go there to protect our producers and protect 
ourselves, it is shame on us.
    And we talked about bonding a little bit before you got 
here. Perhaps there should be some sort of bar that has to be 
crossed before anybody goes into the Court, and that should 
apply to ranchers as well as anybody else.
    Ms. Sease. I agree that they should not be punished for 
filing that lawsuit. The Court will decide whether it is a 
valid lawsuit, but if they thought that the environmental 
assessment or impact statement was inadequate, they have the 
right and should be allowed to file a suit.
    Mr. Inslee. So there is a group now that sued over the 
Roadless Area Rule, a bunch of logging interests, to try to log 
more in the roadless areas of our national forests. And they 
argued that the Federal government had not complied with NEPA 
in passing the Roadless Area Rule. Do you think if they lose, 
Ms. Cowan and Sease, again, if they lose do you think they have 
to be punished in some fashion? Or do you think they should 
have to post a bond before they file that lawsuit?
    Ms. Sease. No, I think that if they lose, which I 
anticipate they will because I have reviewed that environmental 
impact process and I think that it is sufficient, their 
punishment is losing. And no, I do not think that they should 
need to file some kind of bond.
    Ms. Cowan. I would agree that they do not need to be 
punished, and I am not a lawyer, you know, I am just looking at 
what goes on. I still think there needs to be some sort of 
prelitigation action, be it a bond or some sort of level that 
you reach. NEPA is just so easy to go into Court for anybody. 
And as I said, you know, ranchers and loggers and resource 
users, although I do not think ranchers are extractive. We just 
graze the grass and it grows back, but they have to have the 
opportunity to use the same avenues that the other side, the 
people who will drive us off, are using.
    Mr. Inslee. Well, I am sure that the logging community will 
be happy about hearing your comments, but I do respect your 
position that it should be uniform and fair across the board. I 
appreciate your comments in that regard.
    Let me ask about this Katrina situation because it really 
is troublesome to me. I am reading this ``New York Times'' 
article of yesterday and it says, ``Inquiry to seek cause of 
levee failure.'' It is by the Louisiana Attorney General and he 
is--he or she is investigating reports where one engineering 
expert told a congressional panel that malfeasance might have 
led to the levee failures based on statements still vague and 
uncorroborated from a few former levee workers and their 
families. ``Mr. Foti's inquiry comes amid mounting evidence 
that basic design flaws contributed to the collapse to some of 
the earthen levees and concrete retaining walls in New Orleans 
and other areas.''
    What I have read about this would suggest that there are 
other reasons, other than NEPA for these losses in New Orleans. 
In fact, it is interesting. We had a hearing a little earlier 
and I asked Mr. Jindal, who ought to know, because he is the 
Representative from this region, I said, do environmental laws 
have anything do with this disaster? And he basically said no, 
no. And yet, here we are. Folks, I take it, are asserting NEPA 
as some cause of this terrible misfortune people have had. Is 
there something I am missing? Yes?
    Mr. Johnston. It is a fact that an injunction was issued 
against the Barrier Plan. I mean, that is a fact, and that was 
issued under NEPA. I am not here to say that the decision was 
wrong, but I am saying that it is a fact that the injunction 
was issued.
    Now, the question is, would the Barrier Plan have prevented 
the flooding? I believe there is a very good chance it would 
have, notwithstanding the fact that these flood walls, I 
believe, were clearly badly designed and probably badly 
constructed.
    Attorney General Foti's inquiry is into the question of 
whether they knew or should have known that going down only ten 
feet into the peat was bad design. I think it was. I mean, that 
is my view. But it is clearly a fact that you had an 
injunction.
    Mr. Inslee. So if you will bear with me just a moment, 
Madam Chair, another way to solve this problem, to skin this 
cat, is for the Federal government to have done an appropriate 
EIS. From my knowledge, it appears it was a very scanty EIS. 
The Court, from my little reading of this, was probably right, 
that it was grossly inadequate an EIS for the Federal 
government to comply with its obligations under the law, do an 
adequate EIS and fix the levee.
    Now, can we on a bipartisan basis suggest that that 
alternative, which is comply with the law, do an EIS, fix the 
levee, probably would have been a resolution of this, at least 
to the particular levee we are talking about here? Why is that 
not a better situation than reducing citizens' input on this 
issue?
    Mr. Johnston. Well, I am not here to say that the decision 
was wrong. You may very well be correct, actually, I have not 
read that decision. I was involved in the process, I was 
Chairman of Energy and Water at the time it came about, strong 
supporter of the Barrier Plan. And I might also add there was 
political opposition, as well, from the North Shore, from St. 
Tammany Parish.
    So it is not a fact in my view that you can make a clear 
statement that the faults of NEPA caused the flooding. But 
clearly, an injunction prevented the Barrier Plan, which may 
have prevented the flooding. And the Corps probably had a bad 
impact statement.
    Mr. Inslee. Yes, Mr. McGarity?
    Mr. McGarity. I just want to make the point that there was 
political opposition from the North Shore and that was because 
these barriers would not have protected them, nor would it have 
protected the lower 9th Ward. I mean, I have heard several 
times today and I just cannot understand that, how someone 
would say the whole of New Orleans would not have flooded if 
these flood gates would have been up. That would not have 
prevented Lake Bourne from surging to the east of the flood 
walls along the industrial canal.
    Mr. Inslee. Well, I watched a movie the other day about 
Shakespeare and there was some line about the fault, dear 
Brutus, is not in our stars, it is in ourselves. And in this 
case, I think the fault, dear Brutus, is not in NEPA, it is in 
our administration, on a bipartisan basis. We have had some 
failures, on a bipartisan basis, to comply with the law and I 
think that is where we need to encourage administrations to 
follow the law. Thank you, Madam Chairman.
    Mr. Winn. May I say this? Professor McGarity is correct, 
that if the 17th Street Canal breach had no effect in the lower 
9th Ward in New Orleans East. But the extensive flooding that 
contributed to the, in the Midtown, Lakeview, Uptown and 
Metarie area was in the breach in the 17th Street Canal, which 
breach occurred in the northwest corner of the city. And if, in 
fact, the injunction had not stopped the construction of the 
flood gates that were proposed and funded and being proceeded 
with by the Corps of Engineers, that may well have protected 
against a breach in the 17th Street Canal.
    Professor McGarity is correct, there is another problem 
with the Mississippi River Gulf Outlet and to the east of New 
Orleans which has to be dealt with, as well. But a great amount 
of the flooding was because of the breach of this canal flood 
wall, which was in the northwest corner of the city.
    Ms. McMorris. OK, OK, thank you. There has been quite an 
amount of discussion related to the types of lawsuits and who 
is filing lawsuits. I think more than anything, for me, I am 
just disappointed that so much of the way NEPA is implemented 
anymore is through lawsuits. And my goal as the Chairman of 
this Task Force is to see if we cannot just improve the process 
to hopefully avoid some of the litigation. And we heard it, you 
know, said that it started out as some litigating and Ms. Cowan 
said, you know, in response, then there are groups like hers 
that feel like they need to go to Court to defend themselves or 
be on offense in other ways.
    If you look at CEQ, the Council for Environmental Quality, 
if you look at their data for the past three years, there are 
significant lawsuits. And in 2002, six times more often were 
the public interest groups individual citizen associations more 
likely to sue than the business groups. In 2003, it was ten 
times more often. In 2004, it was 12 times more often.
    Our goal in having you here today is to simply see if there 
is a way that we can do better. And I appreciate, once again, 
each of you taking the time to be here, to share your 
perspectives. It is very helpful to this Task Force and our 
ultimate goal is just to see if we cannot improve the process 
by which we make these decisions that will result in good 
environmental decisionmaking, but also protecting our natural 
resources in this country. So thank you very much, the meeting 
is adjourned.
    [Whereupon, at 12:11 p.m., the Committee was adjourned.]

    The following information was submitted for the record:
      Cannon, Hon. Chris, a Representative in Congress 
from the State of Utah, Statement submitted for the record
      Mississippi River Basin Alliance, Statement 
submitted for the record
      National Wildlife Federation, Natural Resources 
Defense Council, and Earthjustice, Joint letter submitted for 
the record
      Towers, Joseph A., Federal Attorney (Retired), 
U.S. Army Corps of Engineers, Statement submitted for the 
record

 Statement of The Honorable Chris Cannon, a Representative in Congress 
                         from the State of Utah

    Thank you, Mr. Chairman, for holding this important hearing 
regarding NEPA. Over the past few months we have had a number of field 
hearings throughout the country reviewing the NEPA process. During 
these hearings we have heard from many witnesses and have gained 
substantial information regarding the impact of NEPA throughout the 
Nation. I think that what we have learned from these hearings is that 
the process is much too litigious.
    Over the 35 years since NEPA was enacted, volumes of law suits have 
frustrated the process. Environmentalists use NEPA to stall and 
eventually eliminate the use of natural resources on public land. As I 
have stated before, in my home State of Utah, the application of NEPA 
has had negative impacts on oil and gas development. In this time of 
our Nation's energy crisis, we need to guarantee that important oil and 
gas development is not stalled by unwarranted lawsuits.
    As we are holding this final hearing with the bipartisan NEPA task 
force, I look forward to hearing from our witnesses. I am hopeful that 
we can effectively take the information that we have gained from these 
hearings and improve the NEPA process. It is important that we make 
sure that the original intent and purpose of NEPA is maintained.
                                 ______
                                 

        Statement submitted for the record by Cynthia Pansing, 
          Executive Director, Mississippi River Basin Alliance

    We are submitting the following comments to the House Resources 
Committee on behalf of the Mississippi River Basin Alliance (MRBA), a 
non-profit organization with over 130 member groups throughout the 
basin. MRBA is dedicated to the protection and restoration of the 
health of the Mississippi River system and the communities who depend 
on it. We are also committed to helping citizens and communities 
participate in the decision-making process about environmental issues 
that affect their lives, which is one of the key benefits that the 
National Environmental Policy Act (NEPA) delivers to the American 
people.
    We are concerned that a number of attempts to discredit and weaken 
NEPA have exploited the recent tragic events related to Hurricane 
Katrina, in particular the failure of the levees in New Orleans that 
resulted in catastrophic flooding of the city. These allegations 
surfaced initially in an article by the Competitive Enterprise 
Institute that ran in National Review Online on September 8, 2005, 
which suggested that lawsuits by environmental groups somehow 
contributed to the interior levee failures that flooded New Orleans.
    The National Review article focused on two lawsuits, one of which 
was a suit initiated by MRBA and several organizations against the 
Vicksburg District of the Corps of Engineers in 1996. The article 
misrepresented several key facts about this lawsuit. Contrary to the 
article's assertions, this lawsuit concerned levees located outside New 
Orleans, in some cases by over one hundred miles. Nor did the groups 
involved in the lawsuit oppose all levees or elevate the interests of 
endangered species above the protection of human lives and communities. 
The lawsuit was aimed at ensuring that the Corps followed the law in 
utilizing sediment sources for levee construction and consulted with 
other federal agencies.
    The lessons learned from the second lawsuit bear mentioning here, 
though MRBA was not involved in bringing it about. Filed in 1977 by the 
organization Save Our Wetlands, Inc. over the Lake Pontchartrain and 
Vicinity Hurricane Barrier Project, this lawsuit has since been 
highlighted by some opponents of NEPA as an example of why the law 
needs to be changed. It is important to note, however, that the General 
Accounting Office, in a report issued September 28, 2005, stated that
        ``None of the changes made to the project, however, are 
        believed to have had any role in the levee breaches recently 
        experienced as the alternate design selected was expected to 
        provide the same level of protection. In fact, Corps officials 
        believe that flooding would have been worse if the original 
        proposed design had been built.'' (www.gao.gov/new.items/
        d051050t.pdf) [Emphasis added]
    A growing body of information about the levee failures in New 
Orleans has been emerging from several post-hurricane investigations, 
which are being ably reported by the Times-Picayune newspaper, 
available to everyone at www.nola.org. These investigations are 
revealing pervasive design flaws in the levees that failed, as well as 
the tragic fact that the city did not have the degree of hurricane 
protection that it had been promised and had every right to expect.
    NEPA was clearly not a factor in the levee collapses. NEPA is just 
the opposite--a safeguard of the public interest and responsible 
policy.
    A vivid example of damage caused by a project that was built prior 
to NEPA can be seen just outside of New Orleans: the Mississippi River 
Gulf Outlet (MRGO), a navigation channel completed in the mid-1960s. As 
it was built, there were voices raised in opposition to MRGO, based on 
local and scientific knowledge of the wetland ecosystems involved and 
their vital importance to the integrity of the coastal landscape. Since 
its construction, the MRGO has caused the loss of thousands of acres of 
protective coastal marshes. Over the years, local citizens repeatedly 
raised concerns over the years about its potential for funneling storm 
surges from hurricanes directly into populated areas in St. Bernard 
Parish and the eastern section of New Orleans. This would not have 
happened with NEPA in place before MRGO was constructed.
    At the heart of NEPA is its requirement that alternatives must be 
considered, including those that minimize damage to our health, 
communities, environment, and quality of life. Comparing and seeking 
input on the merits of several alternatives is a core requirement of 
NEPA. It is the mechanism that forces us all, including federal 
agencies, to think outside of the box when approaching projects that 
may harm our environment or public health.`
    NEPA also protects and empowers the public. It ensures that the 
local community is not left out of decisions, and it requires the 
government to base these decisions on good information. Maintaining and 
strengthening the community's voice in decisions on federal projects is 
critical to making wise choices that enhance the quality of life in our 
communities, and one of the best reasons for keeping NEPA strong and 
effective.
    We urge you to take the leadership necessary to preserve this 
fundamental set of laws that helps protect every American's quality of 
life and will ensure that New Orleanians will have the hope of a 
healthier and more sustainable city once it is rebuilt.
                                 ______
                                 
    [A letter submitted for the record by the National Wildlife 
Federation, Natural Resources Defense Council, and Earthjustice 
follows:]

                            November 23, 2005

Hon. Cathy McMorris, Chairwoman
Hon. Tom Udall, Ranking Member
Task Force on Improving the National Environmental Policy Act
House Committee on Resources
1324 Longworth House Office Building
Washington, D.C. 20515

Co mments of the National Wildlife Federation, the NaturalResources 
Defense Council, and Earthjustice on the Benefitsof the National 
Environmental Policy Act to Federal Rangelands

Dear Representatives McMorris and Udall:

    The National Wildlife Federation (``NWF''), Natural Resources 
Defense Council (``NRDC''), and Earthjustice submit these comments to 
supplement the Committee's November 10, 2005 hearing on NEPA 
Litigation, The Causes, Effects and Solutions. These comments address 
issues raised by the case studies discussed during the November 10th 
hearing on the impacts of NEPA litigation on federally permitted 
livestock grazing.
    NWF is a non-profit conservation organization with over one million 
members dedicated to conserving wildlife and other natural resources, 
including improving the management of livestock grazing on the public 
lands. NRDC is a non-profit environmental organization with more than a 
half million members that plays a leading role in a diverse range of 
federal land and resource management issues, including livestock 
grazing. Earthjustice is a nonprofit public interest law firm dedicated 
to protecting the magnificent places, natural resources, and wildlife 
of this earth and to defending the right of all people to a healthy 
environment.
    All three organizations have a long history of concern for the 
management and current conditions of federal lands administered by the 
Bureau of Land Management and Forest Service that are grazed by 
privately owned domestic livestock. Over the last thirty years, NWF, 
NRDC, Earthjustice, and their members have worked with these agencies 
and ranchers to improve natural resources and rangeland conditions on 
grazing allotments in the western United States, have extensively 
commented on and participated in agency proposals to modify their rules 
and procedures for managing livestock grazing, have met with and 
provided information to Members of Congress about federal lands 
grazing, and when necessary to protect natural resources, have sued 
these agencies for failure to comply with NEPA when managing federal 
rangelands.
    These comments endorse and adopt part of the written testimony 
submitted by law professor Thomas McGarity, who testified during the 
November 10th Task Force hearing in Washington D.C. The portion of 
Professor McGarity's testimony that we embrace and that is relevant to 
NEPA and livestock grazing was prepared by Arizona State University law 
professor Joe Feller: NEPA Has Not Unduly Interfered with the Proper 
Issuance of BLM and Forest Service Grazing Permits. McGarity testimony, 
pp. 8-12.

                                COMMENTS

    1. NEPA's collection of site-specific information about federal 
rangelands, and its evaluation of alternative means of managing 
grazing, benefits all natural resources, including livestock grazing, 
by enhancing the health of rangelands. The information about the 
condition of federal grazing allotments that is gathered and analyzed 
during the NEPA process is critical to assessing the health of those 
rangelands, and deciding how they should be managed to benefit all 
users, including ranchers holding federal grazing permits. Through the 
NEPA process, BLM and the Forest Service assess forage and water 
conditions on an allotment, and consider practical methods to improve 
and protect forage, water, wildlife, and other natural resources, while 
supporting livestock grazing.
    The end result is healthier federal rangelands, which redounds to 
the benefit of all public lands users, including grazing permittees. 
Moreover, during the NEPA-mandated consideration of alternatives, the 
agencies are able to work with ranchers to devise the best means to 
achieve ranching needs. In our experience, when livestock permittees, 
the agency, and interested members of the public work together during 
the NEPA process, the result is management that helps to ensure the 
long-term health of federal allotments, which support livestock grazing 
as well as wildlife and other natural resources.
    2. The NEPA process allows the agency to inform ranchers, the 
public, other agencies, and state and local officials about plans to 
manage federal rangelands, thereby avoiding future conflict. When 
agencies use the NEPA process to evaluate proposals to graze livestock 
on federal lands, information about the proposals, their benefits and 
consequences, and the health of the land are available to ranchers, the 
public, other agencies, and state and local officials, all of whom are 
allowed to participate in the process. While providing information to 
and an opportunity for others to comment on livestock grazing proposals 
for federal lands does take time, it yields the substantial benefit of 
notifying those interested in the federal lands, thereby heading off 
potential controversy and management problems after the decision is 
made.
    In our experience, some of the smoothest and most successful 
federal lands grazing operations evolved from a NEPA process that 
brought various resources, interests, and talents together to establish 
the grazing management plans. This resulted in less controversy, to the 
benefit of the ranchers, wildlife, and other federal land users.
    3. NEPA litigation has never shut down grazing solely because of an 
agency's failure to comply with the statute. As Professor Feller 
explains on page 11 of Professor McGarity's written testimony, in the 
thirty-five years since the enactment of NEPA, there have, to Professor 
Feller's knowledge, only been three cases in which livestock were 
ordered out of an area in connection with NEPA litigation. In all three 
cases, the agency not only failed to comply with NEPA, but there was 
also proof that livestock grazing was causing very serious damage to 
valuable natural resources. There has never been a case in which 
livestock have been removed solely because of the agency's failure to 
comply with NEPA. Moreover, in the three cases where the court ordered 
a cessation of grazing, the impact on the ranchers was ameliorated. In 
one case the reduction was slight (10% cutback), in another there was a 
settlement allowing grazing to continue despite the court's order, and 
in the third the livestock were moved to other federal lands where they 
were allowed to graze, and their owners, the ranchers, were financially 
compensated by conservationists for the relocation.
    4. Congress has already taken action to ensure that compliance with 
NEPA will not delay the renewal of federal grazing permits. Professor 
Feller explains on page 12 of Professor McGarity's written testimony 
that Congress has acted to allay fears of ranchers that agency failures 
to comply with NEPA could interfere with their grazing operations. 
Since before 2000, Congress has included provisions in annual 
appropriations legislation specifying that when a grazing permit would 
expire before the processing of a new permit in compliance with NEPA 
and other applicable laws can be completed, a new permit shall be 
issued with the same terms and conditions as the expiring permit. A 
provision in the 2003 appropriations bill extended this protection for 
ranchers through 2008.
    5. Contrary to the impression provided during the November 10th 
hearing, ranchers have recognized the need for and value of the NEPA 
process. Over the course of our long involvement in NEPA processes 
concerning grazing management, we have met and worked with ranchers who 
acknowledged the importance of public participation in decisions about 
the management of publicly-owned rangelands. Moreover, ranchers and 
rancher organizations have themselves brought NEPA challenges to 
grazing and grazing-related decisions.
    For example, in 1996 the Tenth Circuit Court of Appeals affirmed 
the New Mexico Federal District Court's ruling in a NEPA case brought 
by rancher-attorney Karen Budd-Falen on behalf of the Catron County 
(New Mexico) Board of Commissioners. The courts held that the Secretary 
of Interior must comply with NEPA when designating critical habitat 
under the Endangered Species Act. Catron County Board of Commissioners, 
New Mexico v. United States Fish and Wildlife Service, 75 F. 3d 1429 
(10th Cir. 1996). In 1996 the Public Lands Council, National 
Cattlemen's Association, and American Sheep Industry Association, among 
others, challenged the BLM's revised grazing regulations in the Wyoming 
Federal District Court. Among their objections to the regulatory 
changes were claims that the BLM violated NEPA because the Final 
Environmental Impact Statement failed to: (1) address areas of 
scientific controversy; (2) address material public comments; and (3) 
consider the environmental effects of the revised regulations. The 
district court ruled against the ranchers on all of their NEPA claims. 
Public Lands Council v. United States Department of Interior, 929 
F.Supp. 1436 (D.Wyo. 1996), aff'd in part and rev'd in part sub nom. 
Public Lands Council v. Babbitt, 167 F. 3d 1287 (10th Cir. 1999), 
aff'd, 529 U.S. 728 (2000).
    6. Congress should better fund BLM and the Forest Service to 
monitor grazing and comply with NEPA, because better oversight, 
information, and analyses benefit ranchers, rangelands, and the 
public's natural resources. Unless Congress provides adequate funds to 
BLM and the Forest Service to monitor and evaluate grazing allotments, 
including funds to support prompt NEPA evaluations, the health of 
federal rangelands can stagnate. Without funds to carry out NEPA 
analyses, monitoring, and implementation, the agencies cannot assess 
the value of mitigation measures (including range improvements) or 
consider the best way to manage livestock while enhancing and 
protecting other uses of federal lands.
    The backlog of agency grazing permit renewals awaiting NEPA 
analysis that motivated Congress to waive NEPA compliance for the 
renewal of permits (see #4 above), is primarily the result of tight 
budgets that have prevented agencies from keeping up to speed. With 
their limited budgets, BLM and the Forest Service are making only slow, 
but steady, progress in dealing with the backlog of NEPA analyses for 
grazing permit renewals. For example, according to Congressional 
testimony by the BLM, in 2003 BLM had completed its NEPA analyses on 
84% of the permits it had renewed without up-front NEPA compliance by 
relying on Congress's waivers in appropriations bills. That percentage 
increased slightly to 85% in 2004, and remained the same in 2005.
    While the Forest Service's NEPA processing of its backlog of 
automatically renewed grazing permits has also been increasing, the 
agency has made less progress than the BLM in dealing with its backlog. 
In 2003 it had processed (under NEPA) 34% of the automatically renewed 
permits, in 2004, 38%, and in 2005, 44%.
    More funding for both agencies would allow them to catch up with 
their NEPA analyses, with the result that they could better assess, 
manage, and improve federal rangelands for the benefit of all public 
users.

                               CONCLUSION

    We appreciate the opportunity to provide these comments. If you 
have questions or wish to discuss our comments in more detail, please 
feel free to contact Tom Lustig at the National Wildlife Federation 
(303/441-5158) or Johanna Wald at the Natural Resources Defense Council 
(415/875-6100).

                        Respectfully submitted,


               ,--                                   ,

    Thomas D. Lustig                                Johanna Wald
  Senior Staff Attorney                             Senior Attorney
National Wildlife Federation              Natural Resources Defense
                                   Council



                             Sara W. Tucker

                         Legislative Associate

                              Earthjustice

                                 ______
                                 
    [NOTE: Additional information submitted for the record has 
been retained in the Committee's official files.]

                                 
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