[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]
MODERNIZING NEPA FOR THE 21ST CENTURY
=======================================================================
OVERSIGHT HEARING
BEFORE THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTEENTH CONGRESS
FIRST SESSION
__________
Wednesday, November 29, 2017
__________
Serial No. 115-29
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Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Chairman Emeritus Madeleine Z. Bordallo, GU
Louie Gohmert, TX Jim Costa, CA
Vice Chairman Gregorio Kilili Camacho Sablan,
Doug Lamborn, CO CNMI
Robert J. Wittman, VA Niki Tsongas, MA
Tom McClintock, CA Jared Huffman, CA
Stevan Pearce, NM Vice Ranking Member
Glenn Thompson, PA Alan S. Lowenthal, CA
Paul A. Gosar, AZ Donald S. Beyer, Jr., VA
Raul R. Labrador, ID Norma J. Torres, CA
Scott R. Tipton, CO Ruben Gallego, AZ
Doug LaMalfa, CA Colleen Hanabusa, HI
Jeff Denham, CA Nanette Diaz Barragan, CA
Paul Cook, CA Darren Soto, FL
Bruce Westerman, AR A. Donald McEachin, VA
Garret Graves, LA Anthony G. Brown, MD
Jody B. Hice, GA Wm. Lacy Clay, MO
Aumua Amata Coleman Radewagen, AS Jimmy Gomez, CA
Darin LaHood, IL
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT
Cody Stewart, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
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CONTENTS
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Page
Hearing held on Wednesday, November 29, 2017..................... 1
Statement of Members:
Bishop, Hon. Rob, a Representative in Congress from the State
of Utah.................................................... 1
Prepared statement of.................................... 2
Denham, Hon. Jeff, a Representative in Congress from the
State of California, prepared statement of................. 83
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 3
Prepared statement of.................................... 4
Statement of Witnesses:
Bear, Dinah, Former General Counsel, White House Council on
Environmental Quality, Tucson, Arizona..................... 19
Prepared statement of.................................... 20
Questions submitted for the record....................... 27
Bridges, Mike, President, Longview/Kelso Building and
Construction Trades Council, Business Rep. IBEW 48,
Portland, Oregon........................................... 10
Prepared statement of.................................... 12
Howard, Philip K., Chairman, Common Good, New York, New York. 37
Prepared statement of.................................... 38
Questions submitted for the record....................... 44
Willox, Hon. Jim, Converse County Commissioner, Wyoming
County Commissioners Association, Douglas, Wyoming......... 6
Prepared statement of.................................... 7
Additional Materials Submitted for the Record:
American Road & Transportation Builders Association,
Statement for the Record................................... 83
California Agricultural Commissioners and Sealers
Association, Martin Settevendemie, President, Statement for
the Record................................................. 89
GreenLatinos--The City Project, November 29, 2017 Letter to
Chairman Bishop and Ranking Member Grijalva................ 93
Labor Council for Latin American Advancement, June 5, 2017
Letter to Ranking Member Grijalva.......................... 95
List of documents submitted for the record retained in the
Committee's official files................................. 96
OVERSIGHT HEARING ON MODERNIZING NEPA FOR THE 21ST CENTURY
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Wednesday, November 29, 2017
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
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The Committee met, pursuant to notice, at 10:01 a.m., in
room 1324, Longworth House Office Building, Hon. Rob Bishop
[Chairman of the Committee] presiding.
Present: Representatives Bishop, Young, Gohmert, Lamborn,
McClintock, Pearce, Gosar, Tipton, LaMalfa, Denham, Cook,
Westerman, Graves, Hice, Radewagen, Johnson; Grijalva,
Bordallo, Costa, Tsongas, Huffman, Lowenthal, Beyer, Torres,
Barragan, Soto, and Gomez.
The Chairman. The Committee on Natural Resources will come
to order. The Committee today is having an oversight hearing
entitled, ``Modernizing NEPA for the 21st Century.''
Under Committee Rule 4(f), any oral opening statements at
the hearing are limited to the Chair, the Ranking Minority
Member, and the Vice Chair. This will allow us to hear from the
witnesses sooner. I am going to ask unanimous consent that all
other Members' opening statements be made part of the hearing
record if they are submitted to the Clerk by 5:00 p.m. today.
Without objection, so ordered.
Let me start off with my opening statement, and then we
will turn to Mr. Grijalva for his.
STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF UTAH
The Chairman. Today, we are going to examine how to
modernize the National Environmental Policy Act. In 1969, NEPA
was originally intended to be a tool to assess the impacts of
government actions on the environment. Unfortunately, today it
has become a sweeping regulatory framework that does the exact
opposite. Like some of our other bedrock environmental
statutes, they had a noble intent. But when you write something
in an open-ended and vague manner of statutory language, it
simply means that administrations and litigation can make it a
far cry from what Richard Nixon signed back in 1969.
The provisions of NEPA also created, for example, the CEQ,
which came up with a sweeping climate change for regulatory
guidance, voluntary guidance, which, fortunately, this
Administration has been kind enough to rescind from the silly
guidance that was originally established.
The issue, though, for NEPA is that court orders and
executive branch actions are not going to improve how the bill
functions if Congress needs to act to enable some common-sense
changes to correct the deficiencies that are in the way the law
is being administered. The common refrain that we are hearing
from Federal agencies, as well as state and local governments
and small businesses, is NEPA is used as a tool to slow or
block needed infrastructure projects and rural development.
Delays and duplications of environmental reviews added cost
to the program, which drives up the cost of everything from
milk to lumber to energy. Somebody has to pay for this
gridlock, and it is the taxpayer. Environmental improvements
take a backseat to paperwork and court settlements, and that is
not what was intended decades ago, when this bill was first
passed.
There are some who are thinking this bill is perfect as it
is; that attitude is simply short-sighted. The environment can
have a review, and in a timely manner, and it does not have to
be mutually exclusive. But it simply won't happen unless
Congress actually acts to clarify NEPA's intent, its scope, and
its limitations.
There are multiple Executive Orders and agency attempts in
the past few years to try to streamline NEPA. Congress is more
than happy to have some oversight necessary in that process.
But it is clear that Congress has to do the clarifications.
There is a lesson for Congress with NEPA that when you pass
vague, open-ended language, you open the door to controversy,
legal challenges, and a legacy of unintended consequences.
So, the purpose of our hearing today is examining ways of
how we can fix a system that is not functioning the way it was
intended. As noble as those intentions were, it just is broken.
And we need to find a way of fixing it. Anything needs to be
modernized as time goes on; this cries for that modernization.
[The prepared statement of Mr. Bishop follows:]
Prepared Statement of the Hon. Rob Bishop, Chairman, Committee on
Natural Resources
Today, the Committee meets to examine ways to modernize and improve
the National Environmental Policy Act. Passed in 1969, NEPA was
originally intended to be a limited tool to assess impacts of
government actions on the environment. Today, NEPA is a sweeping
regulatory framework that effects almost every aspect of the American
economy.
The law, like so many other environmental statutes, was created
with noble intent. However, due to open-ended statutory language,
differing interpretations of congressional intent, and the exploitation
of these vagaries by the activist litigants, the law's implementation
is a far cry from what President Nixon signed decades ago.
A provision of NEPA also created the White House Council on
Environmental Quality. Ironically, the previous administration's CEQ
attempted to force sweeping climate change regulatory guidance for all
NEPA actions. I applaud the Trump administration's CEQ for rescinding
this potentially damaging Executive Order earlier this year. Executive
branch or court orders have not and will not improve how NEPA functions
over the long-term.
Rather, to proactively maintain our critical infrastructure, manage
our public lands and provide critical public services, Congress needs
to enact common-sense, substantive changes to bring the law to correct
its deficiencies. This can be accomplished, while at the same time,
respecting existing environmental protections. The common refrain from
a myriad of Federal agencies, state and local governments and small
businesses is that NEPA is used as a tool to slow or block needed
infrastructure projects and rural development.
Delays and duplication of environmental reviews have driven up the
cost of a host of critical infrastructure and job-producing projects,
which in turn, drives up the cost of everything from milk to lumber to
energy production. Ultimately, taxpayers are paying more for Federal
bureaucracy, gridlock and lawyers as limited resources for productive
environmental improvements take a back seat to paperwork and court
settlements. This is not what was envisioned by Congress when it passed
NEPA decades ago.
Some consider NEPA to be perfect ``as is'' and oppose any changes
to it. Yet, we can both better protect the environment and allow for
thorough review and processing of critical economic, energy and
infrastructure activities in a timely manner. These concepts are not
mutually exclusive. But it simply won't happen unless Congress acts to
clarify NEPA's intent, scope and limitations.
Recently, this Committee has made efforts to address some of the
most glaring problems we have observed in the application of the law.
In 2015, the Congress passed a narrow modification to NEPA to establish
best practices among Federal agencies, require coordination of Federal
agency review of projects, and shorten time periods for legal
challenges. But just as we observed with original passage of NEPA, it's
one thing to pass a law with good intentions, it's quite another to
ensure its application is carried out correctly by agency officials.
Similarly, this year has already seen multiple Executive Orders and
agency attempts at streamlining the NEPA environmental review process.
I'm eager to provide the congressional oversight necessary to examine
how these new efforts may positively impact the environmental review
process in the weeks and months ahead. I am encouraged that the
Administration agrees that NEPA processes can and must be addressed.
There is a lesson for Congress with NEPA. When you pass vague,
open-ended language, you open the door to controversy, legal challenges
and a legacy of unintended consequences. It is the purpose of today's
hearing to examine ways to re-establish NEPA as a tool to balance
environmental needs with economic progress. I look forward to the
testimony of the witnesses and I yield back.
______
The Chairman. With that, I will yield to the Ranking
Member.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you very much, Mr. Chairman. Today, the
Majority will once again try to make its case for weakening the
National Environmental Policy Act. It is a case we have heard
before, and one that has repeatedly failed to ring true.
In 2005 and 2006, Committee Republicans under former
Chairman Richard Pombo tried and failed to make this case by
convening a NEPA task force. This group held a series of
hearings, issued a Committee Report that featured the opinions
of those who were interested only in getting out of NEPA
requirements, and not in using NEPA to strengthen our
environment and communities. The report was met with harsh
criticism, particularly because it played fast and loose with
the facts, and failed to provide evidence for its claims and
conclusions. Fortunately, none of its harmful recommendations
to amend NEPA were adopted.
Since the Republicans took the House Majority in 2011,
however, they have renewed their assault on NEPA. They have
pushed for drilling, logging, dam building, and other
environmentally destructive activities to be conducted without
Federal agency oversight or public review. Time and again, we
have debunked Republican myths about NEPA causing excessive
delays, frivolous lawsuits, and damage to our economy.
Based on the testimony provided by Majority witnesses in
advance of today's hearing, we will need to continue refuting
those false claims. So, here are a few real facts to consider
before this hearing devolves into yet another forum for making
NEPA a scapegoat.
First, NEPA simply requires Federal agencies to take a hard
look at potential environmental impacts of projects they
undertake or permit. If an agency modifies or abandons a
proposal after NEPA review, it is because of real environmental
harm revealed during the review, not because of the NEPA
process. Blaming NEPA for uncovering bad projects is like
blaming a tumor on the x-ray that discovered it.
Second, 95 percent of NEPA reviews are completed in a
matter of days using categorical exclusions that exist to
streamline review of simple, environmentally benign projects.
Only 1 percent of NEPA reviews require an environmental impact
statement. These are the most complex projects with the
greatest potential for environmental harm, and are rightly
subject to careful review.
Third, the size of the American economy has more than
tripled since NEPA was passed in 1970, from less than $5
trillion to nearly $17 trillion in GDP. NEPA has helped make
that economic development more sustainable, more just, and less
wasteful.
Calls to modernize NEPA miss the point entirely: the beauty
of NEPA is that it is already modern and it is already
flexible. To quote the Democratic response to the Pombo task
force report, ``NEPA was a fundamental shift in our Nation's
public policy and carries no expiration date. The law's call to
foster and maintain conditions under which man and nature can
exist in productive harmony is timeless and its insistence on
meaningful local involvement, sustainable development, and
deliberate Federal decision making was, and remains, visionary.
It cannot credibly be argued that we have fully realized this
vision, nor should we ever stop trying.''
Democratic members of this Committee are dedicated to
ensuring that the NEPA vision remains a central part of all
discussions regarding the use of resources owned by the
American people. Today, our members will highlight NEPA's
successes, and the fact that a lack of resources and trained
professionals at CEQ and in the agencies is the main driver of
any inefficiencies and inconsistencies in the implementation. I
look forward to the hearing, and welcome our witnesses.
[The prepared statement of Mr. Grijalva follows:]
Prepared Statement of the Hon. Raul M. Grijalva, Ranking Member,
Committee on Natural Resources
Today, the Majority will once again try to make its case for
weakening the National Environmental Policy Act. It is a case we have
heard before, and one that has repeatedly failed to ring true.
In 2005 and 2006, Committee Republicans under former Chairman
Richard Pombo tried and failed to make this case by convening a NEPA
``task force.'' This group held a series of hearings and issued a
Committee report that featured the opinions of those who were
interested only in getting out of NEPA requirements, and not in using
NEPA to strengthen our environment and communities. That report was met
with harsh criticism, particularly because it played fast and loose
with the facts and failed to provide evidence for its claims and
conclusions. Fortunately, none of its harmful recommendations to amend
NEPA were adopted.
Since the Republicans took the House Majority in 2011, however,
they have renewed their assault on NEPA. They have pushed for drilling,
logging, dam building and other environmentally destructive activities
to be conducted without Federal agency oversight or public review. Time
and again we have debunked Republican myths about NEPA causing
excessive delays, frivolous lawsuits, and damage to our economy. Based
on the testimony provided by Majority witnesses in advance of today's
hearing, we will need to continue refuting false claims.
So here are a few real facts to consider before this hearing
devolves into yet another forum for Committee Republicans to use NEPA
as a scapegoat:
First, NEPA simply requires Federal agencies to take a
``hard look'' at the potential environmental impacts of
projects they undertake or permit. If an agency modifies or
abandons a proposal after NEPA review, it is because of
real environmental harm revealed during that review, not
because of the NEPA process. Blaming NEPA for uncovering
bad projects is like blaming a tumor on the x-ray that
discovered it.
Second, 95 percent of NEPA reviews are completed in a
matter of days using categorical exclusions that exist to
streamline review of simple, environmentally benign
projects. Only 1 percent of NEPA reviews require an
environmental impact statement. These are the most complex
projects with the greatest potential for environmental
harm, and are rightly subject to careful review.
Third, the size of the American economy has more than
tripled since NEPA was passed in 1970: from less than $5
trillion to nearly $17 trillion. NEPA has helped make this
economic development more sustainable, more just, and less
wasteful.
Calls to `modernize' NEPA miss the point: the beauty of NEPA is
that it is already modern and it is already flexible. To quote from the
Democratic response to the Pombo task force report: ``NEPA was a
fundamental shift in our Nation's public policy and carries no
expiration date. The law's call to `foster and maintain conditions
under which man and nature can exist in productive harmony' is timeless
and its insistence on meaningful local involvement, sustainable
development, and deliberate Federal decision making was, and remains,
visionary. It cannot credibly be argued that we have fully realized
this vision, nor should we ever stop trying.''
Democratic Members of this Committee are dedicated to ensuring the
NEPA vision remains a central part of all discussions regarding the use
of resources owned by the American people. Today, our Members will
highlight NEPA successes and the fact that a lack of resources and
trained professionals at CEQ and in the agencies is the main driver of
any inefficiencies and inconsistencies in implementation.
I look forward to hearing from our witnesses, and I yield back.
______
Mr. Grijalva. Mr. Chairman, I yield back.
The Chairman. Thank you. I appreciate that Minority
viewpoint.
Now we are going to introduce the witnesses we have here.
And once again, any other opening statements will be part of
the record.
First, we have Commissioner Willox from Converse County in
Douglas, Wyoming, who is here from the Wyoming County
Commissioners Association; Mr. Mike Bridges, President of
Longview/Kelso Building and Construction Trades Council, and a
business representative of IBEW 48, from Portland, Oregon; Ms.
Dinah Bear, who is the former General Counsel from the Council
on Environmental Quality from Tucson, Arizona--you had nothing
to do with that?
Mr. Grijalva. No.
The Chairman. OK.
Mr. Grijalva. Just it always rises to the top.
[Laughter.]
The Chairman. OK. And then Mr. Philip Howard, who is the
Chairman of Common Good from New York.
We appreciate all four of you being here.
Let me remind you, if you haven't been here before, that
you have a 5-minute time limit. Your written statement is part
of the record. I am going to try to be a stickler on keeping
within those 5 minutes.
The microphones don't come on automatically, you have to
make sure they are turned on, get them close to your face, then
watch the timer over there. When you have 1 minute left, it
will turn yellow. When it turns red, please finish the sentence
without making it a compound or a complex sentence.
With that, let's turn to our first witness, Commissioner
Willox from Wyoming.
STATEMENT OF THE HON. JIM WILLOX, CONVERSE COUNTY COMMISSIONER,
WYOMING COUNTY COMMISSIONERS ASSOCIATION, DOUGLAS, WYOMING
Mr. Willox. Thank you, Chairman Bishop, Ranking Member
Grijalva, and members of the Committee. My name is Jim Willox,
and I have been a Converse County Commissioner for 11 years,
and also serve on the board of the Wyoming County Commissioners
Association, who I represent today.
County commissioners across Wyoming are actively engaged in
NEPA analysis of all types. I am personally the main point of
contact for two EISs underway in our county for proposed oil
and gas projects.
Commissioners are elected administrators with broad
mandates to advance the well-being of our entire county, not
just one slice of it. With that in mind, I would like to offer
these suggestions.
It is important to remember Congress' original intent in
drafting NEPA. In part, it was to encourage productive and
enjoyable harmony between man and his environment.
Unfortunately, in recent years, NEPA has mushroomed into an
exhaustive, analytical effort on every possible negative
outcome, including on a global scale. Agency officials are
forced into years of analysis and reams of paper designed to
fend off litigation, instead of making sound, informed policy
decisions.
This has real consequences. The normally pressured Lance,
an oil and gas project in western Wyoming, is approaching 8
years of study and drafting. The Converse County EIS in my home
county is now well into its 4th year. A proposed pipeline to
carry carbon from western Wyoming is languishing in its 5th
year.
There are also countless examples of smaller projects that
are made costlier and result in greater negative impacts.
For example, a small power provider in my county faces
lengthy NEPA delays to install additional electricity to a
local wastewater plant, despite the fact that it is parallel
and adjacent to an existing power line across Federal land.
A Wyoming-based wireless provider is forced to undergo
NEPA-related analysis to replace their copper lines with fiber,
upgrading their network.
These types of problems incentivize industry to figure out
how to route their projects around Federal lands, which result
in greater impact on the land and the wildlife.
NEPA delays can also be downright dangerous. Wyoming has
4.6 million acres of forest that has been decimated by insects
and disease. Yet, accessing these lands to remove fuel loads
and improve the health of the forest is hindered by NEPA.
There are two actions that Congress and the agencies could
take that would dramatically improve NEPA before it even
begins. Congress should write new rules on what constitutes a
Federal nexus.
For example, in Converse County's EIS, only 10 percent of
the surface is federally owned. Yet, a well pad that sits on
private land that drills into private minerals and then
accesses Federal minerals laterally, up to 2 miles away, is
considered a Federal nexus, even though no Federal land is
disturbed. The same is true for telecommunication providers
attempting to improve their networks over and through Federal
lands, triggering NEPA review, even when it is a minority of
the distance.
Second, counties, as units of local government, should be
afforded great deference by land managers in the Federal
Government. We agree with the Western Governors' Association
that states and local governments are not merely stakeholders,
but rather co-regulators established by Congress. This requires
a willing partner on the Federal side, and we hope this
Committee will continue to demand that agencies fulfill their
coordination responsibilities.
Now, once NEPA has been triggered, we believe this
Committee should consider creating a category of actions or
locations that would automatically provide for more categorical
exclusions. Paralleling or replacing existing infrastructure
should not trigger full NEPA review. Congress should explicitly
require the agencies to grant categorical exclusions in areas
like this.
The size and scope of Federal EISs are a significant
administrative burden to county personnel and budgets. The
Department of the Interior's recent order to reduce the amount
of pages in EISs is certainly helpful, but only if accompanied
by the trimming of the exhaustive analysis forced on the agency
by litigation.
And finally, the agency should make better use of the tools
already at their disposal. They should use tiering to reduce
redundancies, and grant local governments administrative review
authority at the end of the process to correct errors before
going public.
In conclusion, counties in Wyoming and across the West are
ready, willing, and able to assist in the goal of modernizing
NEPA to ensure that it continues to work for the benefit of
decision makers.
Mr. Chairman, I thank you for this opportunity to testify
today, and I look forward to questions.
[The prepared statement of Mr. Willox follows:]
Prepared Statement of the Honorable James H. Willox, Converse County
Board of County Commissioners on behalf of the Wyoming County
Commissioners Association
Chairman Bishop, Ranking Member Grijalva, Representative Cheney,
and members of the House Natural Resources Committee, thank you for the
opportunity to testify today on modernizing NEPA for the 21st century.
My name is Jim Willox. I have served on the Board of County
Commissioners in Converse County, Wyoming since 2007. I also serve on
the Board for the Wyoming County Commissioners Association (WCCA). The
WCCA is a voluntary association of all 23 Wyoming counties that strives
to advance county level needs through unified action. I am representing
the WCCA today.
County Commissioners across Wyoming are actively engaged in Federal
resource management plan revisions or amendments in various stages, and
NEPA analysis of all types. I personally am the main point of contact
for Converse County in the current EIS underway in my county for a
proposed oil and gas project. Collectively, Wyoming's Commissioners
have extensive on-the-ground experience with the nitty gritty
implementation of NEPA, as opposed to the high-level, philosophical
arguments in Congress, which I hope helps us identify changes to NEPA
that will help make a difference on the ground.
The fact is, County Commissioners are often the only people in the
room with broad policy objectives when it comes to Federal planning and
environmental analysis. Federal agencies, even state agencies apart
from the governor, have specific, narrow objectives to advance. While
that isn't necessarily wrong, Commissioners are elected Administrators
with a broad mandate to advance the well-being of our entire county,
not just one slice of it. With that in mind, I would like to offer the
Committee some suggestions on modernizing NEPA in a way that maintains
the original objective of the law, but provides the necessary
flexibility to undertake projects in a timely manner.
nepa delays are costly and sometimes dangerous
It is important to remember Congress' original intent in drafting
NEPA:
Sec. 2 [42 U.S.C. Sec. 4321]. The purposes of this Act are: To
declare a national policy which will 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 natural resources important to the Nation; and to establish
a Council on Environmental Quality.
The Act was designed to be a planning tool that helped to inform
decision makers about the costs and benefits of proposed actions--for
both the environment and to ``stimulate the health and welfare of
man.'' For many years this analysis was effective, timely, and not cost
prohibitive. Unfortunately, in recent years NEPA has mushroomed into an
exhaustive analytical effort on every possible negative outcome,
including on a global scale. What was once a helpful look at proposed
actions has metastasized into a grotesque perversion of congressional
intent whereby agency officials are forced into years of analysis and
reams of paper designed to fend off litigation instead of making sound,
informed policy decisions.
This has real consequences for my county, for Wyoming, and for all
of the West. The length of time it takes for the Federal Government to
issue Records of Decision on major oil and gas projects is well-plowed
ground in this Committee. The Normally Pressured Lance oil and gas
project in western Wyoming is approaching 8 years of study and
drafting. The Converse County EIS in my home county is now well into
its 4th year after the initial Plan of Development was outlined. A
proposed pipeline to carry carbon from western Wyoming for beneficial
utilization elsewhere is languishing in its 5th year. These are just a
few. The delays are costly to the project proponent, but also are a
burden on local economies and government services.
In addition to these large projects, there are countless examples
of smaller projects that are made costlier and result in greater
negative impacts to the land and wildlife as a result of NEPAs
mushrooming, for example:
A small power provider in my county faced lengthy NEPA
delays to install additional electricity to a local
wastewater treatment plant because the line crossed Forest
Service managed grasslands. The proposed route was directly
adjacent to a transmission line already present, and the
area has railways, a state highway, and other
infrastructure nearby.
A Wyoming-based wireless provider is forced to undergo,
and pay for, NEPA related analysis when they seek to
replace copper lines with fiber to upgrade their network,
even though analysis may have already occurred, or previous
analysis doesn't meet the ever moving goalposts of what is
required. This is a delay that seems in direct
contradiction to national goals of improving broadband and
wireless coverage in rural areas.
These types of problems incent industry to figure out how to route
their projects around Federal lands even if the route is significantly
longer. The result is greater impact on the land and wildlife,
increased burden on county infrastructure, and less efficient projects.
Not at all what NEPA was intended to do.
Beyond economic development projects, NEPA delays can be downright
dangerous. Wyoming is home to over 7 million acres of forested land
owned by the Federal Government. Over 4.6 million acres of that forest
has been decimated by insect and disease over the last 20 years. These
areas are prone to wildfires, and the Forest Service estimates that
over 100,000 dead and dying trees fall every single day in the forests
of the West, impacting recreational opportunities and the health and
welfare of our wildlife and residents. Yet accessing these lands to
remove fuel loads and improve the health and resiliency of the forest
is hindered by NEPA, a complete contradiction to NEPA's intent.
Even though Congress has given the Forest Service some tools--like
the use of NEPA's categorical exclusions for management in designated
insect and disease areas--the Forest Service is reluctant to use the
designation. For example, Wyoming's Governor, Matt Mead, has requested
over 1.5 million acres be declared Insect and Disease Areas, but to
date this tool has not been utilized in Wyoming.
modernizing nepa before it even begins
All of the challenges mentioned above are preventable with a few
relatively minor changes either in statute or in sustained agency
action. I will mention those below, but first there are two actions
that Congress and the agencies can take that would dramatically improve
NEPA for all involved before the NEPA process even begins.
First, we believe that this Committee and Congress should take a
hard look at narrowing when a Federal nexus triggering NEPA reviews is
warranted. When NEPA was passed in 1969 there was no way to anticipate
changes in technology like horizontal drilling, or the necessity of
deploying fiber in rural areas as our country shifted almost overnight
from voice telephone service to a broadband economy. As a procedural
law only, NEPA should be flexible enough to account for these changes
while adhering to its original goals.
For example, the Converse County EIS I've already alluded to is in
an area of Wyoming that does not have significant Federal land
ownership. In fact, only 10 percent of the surface in the project area
is federally owned, 83 percent is privately owned. Yet, here we are 4
years into an extensive NEPA review with even more years to go. A well
pad that sits on private land, and drills vertically into privately
owned subsurface before turning horizontally, and then either crosses
federally owned subsurface or accesses federally owned minerals up to 2
miles away from the well pad is considered a Federal nexus. In other
words, no Federal land is disturbed in any way, yet NEPA reviews for
the entire project, even on private lands, are triggered.
The same is true for the wireless company mentioned before and
other telecommunications providers attempting to improve their networks
over and through Federal lands. In Wyoming's checkerboard, it is
possible to replace miles of fiber line predominately on private land,
but still cross some small segment of Federal land, triggering a NEPA
review for the entire project.
Congress should write new rules on what constitutes a Federal nexus
in the first place so that agency personnel and county governments can
focus their time, resources, and attention on projects that actually do
have an impact on Federal lands themselves.
Second, counties, as units of local government, are--or should be--
afforded great deference by Federal land management agencies as
outlined in the Federal Land Management and Policy Act (FLPMA) and the
National Forest Management Act (NFMA). Both of these organic Acts
establish the principle of coordination with local government. In
separate, but similar ways, Congress made clear--and the courts have
affirmed--that Federal agencies have an obligation to engage local
governments in a meaningful way that goes beyond just notice and
comment.
In Wyoming we have learned that the most lasting and successful
Federal projects are ones that begin with significant and meaningful
engagement with local government. We agree with the Western Governors'
Association that states and local governments are not ``stakeholders,''
but rather co-regulators as established by Congress. This elevated
status requires that local governments come to the table prepared and
able to meaningfully contribute to planning and project decisions, but
it also requires a willing partner on the Federal side that is
genuinely interested in the expertise local governments have to offer.
This is an ongoing project for both local government and the Federal
agencies, but one that too often Federal agencies ignore.
The WCCA, the WGA, the National Association of Counties, the
Council of State Governments and several others have argued that
agencies should spend more time and resources in the early stages of
environmental reviews understanding the needs of state and local
governments. That effort will pay off with more robust and defensible
actions. We agree wholeheartedly with that call. But before NEPA
analysis begins Congress has already directed agencies to engage in
ongoing, meaningful dialogue with local governments even in the absence
of a particular project.
We have been heartened by the recent change in attitude at the
Department of the Interior to engage with local governments, but the
mandate of coordination is one that requires constant intentionality on
our part, and continued oversight on yours, no matter the presidential
administration. We hope that this Committee will continue to demand
that agencies fulfill their coordination responsibilities.
nepa improvements once triggered
We have been pleased with the attention Secretary Zinke has paid to
improving the NEPA process. For the first time in a long time it
appears that the Department of the Interior is genuinely interested in
modernizing NEPA in a way that recognizes the expertise that exists at
the state and local level. In response to the Secretary's memos on this
topic, the WCCA wrote a series of letters with suggestions on how the
agency could improve the process administratively, but would like to
outline a couple of them here.
First, with respect to actions Congress can take, we believe the
Committee should consider creating a category of actions or locations
that would automatically trigger a categorical exclusion where
significant impact has already taken place. For example, President
Obama instituted a ``dig once'' rule as it relates to installation of
public utilities along roadways in an effort to minimize disturbance
when roads are built and then overbuilt with utilities, including
broadband infrastructure. While this is laudable, many major roadways
like Interstate Highways predate these rules and have caused
significant impact to the landscape from which there is no turning
back. Rather than cause delays and added costs in analyzing new
projects in heavily impacted areas, Congress should explicitly require
the agency to grant categorical exclusions in areas like this.
Second, the size and scope of Federal EISs are a significant
administrative burden on county personnel and budgets. The Department
of the Interior's recent order to reduce the amount of pages in EISs is
certainly helpful, but only if accompanied by a trimming of the
exhaustive analysis forced upon the agency by litigation and a greater
reliance on states and counties to complete analysis. Counties can
assist in setting appropriate timelines and scoping by early
involvement--both in coordination as mentioned before--but also as
cooperating agencies. Counties should be involved in internal ``ID
teams'' that can set parameters at the front end to limit expansive and
wasteful analysis.
Further, even though it is costly, we in Wyoming have taken the
lead at providing to Federal agencies robust and defensible socio-
economic data that should play a greater role in Federal decision
making. While Interior is required to analyze the economy, culture, and
custom of the counties, we discovered years ago that the agency was
woefully unprepared to produce and analyze this data. We have worked to
establish fact-based, scalable socio-economic profiles the agencies can
use to bolster decisions.
Finally, the agencies should make better use of tools already at
their disposal. The agencies underutilize the tiering of NEPA documents
to reduce redundancies. Also, agencies should grant local governments
administrative review authority at the end of the process but prior to
the release of the Final EIS in order to correct any remaining issues,
streamline the Governor's consistency review, and reduce adverse
comments during the protest period.
conclusion
Counties in Wyoming and across the West are ready and willing to
assist in the goal of modernizing NEPA to ensure that it continues to
work for the benefit of decision makers. We believe that the changes
suggested above, either legislatively or administratively, would go a
long way toward shortening the timelines, administrative burden, and
financial obligations of everyone involved in advancing these projects.
Thank you again for the opportunity to testify today.
______
The Chairman. Thank you, I appreciate that.
Next, Mr. Bridges, you are recognized for 5 minutes.
STATEMENT OF MIKE BRIDGES, PRESIDENT, LONGVIEW/KELSO BUILDING
AND CONSTRUCTION TRADES COUNCIL, BUSINESS REP. IBEW 48,
PORTLAND, OREGON
Mr. Bridges. First, I would like to say thank you to the
Chair and the Committee members for the opportunity to share my
experiences with the NEPA process and its effects on projects
in my community. My name is Mike Bridges, and I am the
President of the Longview/Kelso Building and Construction
Trades Council. I also serve on the Executive Board for our
state organization.
The state organization represents 70,000 skilled men and
women in the trades whose livelihoods depend on the
construction of new projects, many of which must be permitted
through a NEPA process. A number of these new projects are in
southwest Washington, and I represent a total of $5 billion of
private capital investment, millions in tax revenue, and
thousands of jobs.
One such project is the Millennium Bulk Terminals project
in Longview, which is where I have built my home and I am
raising my family. Millennium is cleaning up a 1940s-era
aluminum smelter and redeveloping it to export U.S. coal to our
allies in Japan and South Korea. It is a prime example of how a
project reliant on natural resources can be encumbered with
delay.
Millennium submitted permits in February of 2012, the draft
EIS published 3\1/2\ years later. As we approach the 6-year
mark, the final EIS has still not been published. Washington
State published its 13,000-page state final EIS back in April
2017. Even though its environmental analysis was far larger in
scope than the Federal, I attribute the delay in the NEPA final
EIS in part to the way in which the process has been hijacked
by activists seeking to deny projects that do not align with
their political agendas.
NEPA was not enacted to function as a political process to
allow members of the public to voice their approval or
disapproval of a controversial project, yet multiple NEPA
hearings I attended on the Millennium project function as a
public voting booth of sorts. I witnessed singing grandmothers,
people dressed as their favorite endangered species, and other
theatrical antics designed not to inform agency officials, but
to publicly protest the project.
Hundreds of people wearing red shirts were bussed in from
other cities and states to protest against the project. Local
supporters showed up and outnumbered the out-of-town
protesters. This was great to see, but we should not have to
pretend that these hearings are useful in the way that Congress
intended.
The Building Trades support responsible and consistent
environmental regulations, and has been involved in
environmental improvements at industrial facilities for
decades, and has also been leading the way to build and invest
in renewable energy technology.
I am not here today to encourage deregulation. The Building
Trades support a thorough permitting process, but that process
needs to adhere to the actual regulatory requirements and allow
for a reasonable timeline.
The Building Trades believe that projects like Millennium
are essential to the journey toward cleaner sources of energy,
and we know that this terminal can be built and operated safely
within the environmental requirements of the law, and can
provide family wage jobs that my members and others in the
community so desperately need in Cowlitz County.
Currently, many of our skilled trade workers are forced to
make long daily commutes, or even travel to other states to
find steady work. The Millennium project presents an
opportunity for my members to return to the days when they
could go to work in the morning and come home at the end of the
day in time to have dinner with their families.
Projects like Millennium also provide the Building Trades
with the opportunity to replace our aging skilled workforce
through our on-the-job apprenticeship training programs. We can
only admit new apprentices into our programs when there are
opportunities in the marketplace. The Millennium project is
essential because its size and duration make it possible for us
to responsibly gauge how many people to start in a career path
in the trades.
One group we strive to bring into our apprenticeship
programs are the military veterans through our Homeless to Hard
Hats program. With a suicide rate of about 20 veterans per day
nationally, we want the apprenticeship to serve our veterans as
they have served our country, by providing them with dignity,
self worth, and family wages that their sacrifice deserves.
And I am not here today just in support of my members. As
part of the labor movement, Building Trades cares not just
about our craft workers, but all workers. In addition to the
tradesmen and women that will be employed during construction
of the facility, the Millennium project is projected to produce
300 direct and indirect full-time, family wage jobs.
And our concerns are not just limited to the jobs my
community needs now. We also have real concerns about our
state's reputation and economic future. The seemingly endless
arbitrary regulatory process in Washington State will
discourage future projects that would employ members of the
building trades in my community.
In the long term, we in the Building Trades encourage the
Committee to put some controls around the process to prevent
this type of abuse. There should be a limit to the amount of
time an agency can spend on the NEPA process, the type of
public process it provides, and the number of pages in a final
EIS. But in the short term, we ask the Committee to insist the
Seattle Corps District publish the final EIS for Millennium.
As someone who drives every day through Longview and sees
the devastation caused by the lack of good jobs, I am asking
you to help my community. The regulatory process in Washington
State is broken. The result has been years and millions of
dollars of lost wages and millions of dollars of added costs to
projects like Millennium during the review process. Please
don't let this continue with the Federal process. Thank you.
[The prepared statement of Mr. Bridges follows:]
Prepared Statement of Mike Bridges, President, Longview/Kelso Building
and Construction Trades Council, representing the Washington State
Building and Construction Trades Council
introduction
I would first like to say thank you to the Chair and the Committee
members for the opportunity to share my experience with the NEPA
process and its effects on the projects in my community. My name is
Mike Bridges and I am the President of the Longview/Kelso Building and
Construction Trades Council and I serve on the Executive Board of the
Washington State Building and Construction Trades Council.
The State Council represents 70,000 skilled men and women in the
trades whose livelihoods depend on the construction of new projects. I
have worked alongside these men and women as a Union electrician, and
now work to serve them by securing opportunities to build world-class
projects, many of which must be permitted through the NEPA process.
A number of these new projects are in southwest Washington and
represent a total of $5 billion of private capital investment, millions
in tax revenue, and thousands of jobs. The majority of my comments will
discuss the Millennium Bulk Terminals Coal Export Project, which will
export 44 million tonnes of low-sulfur American coal to our democratic
allies in Japan and South Korea. This project has been under review for
over 5 years. Millennium will provide millions in taxes for the region,
support thousands of family wage jobs during construction and
operations, all while cleaning up and redeveloping a 1940s era aluminum
smelter.
Another significant project is the proposed Vancouver Energy
terminal in Vancouver. This critical infrastructure would enable the
safe transfer of North American crude oil from rail to ship, and
ultimately the manufacturing of transportation fuels that we use every
day at West Coast refineries. This project has been under review for
over 4 years. The Vancouver Energy project will provide $2 billion in
economic benefit for the region, support thousands of family wage jobs
during construction and operations, and strengthen U.S. energy
independence with the potential to displace up to 30 percent of the
foreign oil imported to the West Coast with lower-carbon North American
crude.
Both these projects have suffered significant permitting delays.
But for our purposes today, I will use as an example the Millennium
Bulk Terminals coal export project in Longview, which is where I have
built my home and am raising my family.
background on millennium bulk terminals
Longview is an industrial town built on natural resources,
manufacturing, and trade--all of which are dependent on our deep-water
ports on the Columbia River. Yet we are a rural community of less than
50,000 residents.
The town has weathered multiple economic downturns because we have
a well-established industrial area that is still home to major global
manufacturers who rely on ports to export everything from forest
products to grain to commodities that are mined.
But we have lost a significant number of family wage jobs through
those economic downturns because of plant closures and staff reductions
in manufacturing and industrial facilities. We need to create new jobs
and opportunities for our children by diversifying, and the Millennium
Bulk Terminals project is an opportunity to provide just what my
community needs.
As a prerequisite for permits, two environmental impact statements
(EIS) are needed, although both documents study much of the same
topics. One is prepared under state law by the State of Washington
Department of Ecology and Cowlitz County (the SEPA EIS). The second is
prepared under NEPA by the Seattle District Corps of Engineers.
Millennium submitted permits in February of 2012. The NEPA Draft
EIS published 3\1/2\ years later. As we approach the 6-year mark, the
Final EIS has still not published.
Washington State published its 13,000-page State Final EIS back in
April 2017, even though its environmental analysis was far larger in
scope than the Federal.
The first permit required for the coal export terminal, the
Critical Areas Permit, was issued in July and in the absence of any
challenges, both the SEPA EIS and the permit are considered final and
no longer subject to challenge.
The NEPA EIS requires a 401 Water Quality Certification by the
State of Washington Department of Ecology. The Department of Ecology
denied the 401 Water Quality Certificate ``with prejudice'' so
Millennium is both appealing that denial to the State of Washington
Pollution Control Board and has filed a lawsuit against the Department
of Ecology in Cowlitz County Superior Court.
Despite clear limitations expressed by Congress under the Clean
Water Act, Section 401, which states base their certification decisions
on specifically enumerated water quality grounds, Ecology's purported
bases for denial with prejudice were, in fact, entirely unrelated to
water quality.
This is the first time in Ecology's history that it decided to deny
a 401 certification with prejudice based on SEPA findings it made
concerning interstate rail capacity, train traffic (and its attendant
effect on vehicular traffic), train emissions, vibrations and noise,
and train safety.
While the 401 Water Certificate is under legal challenge, the NEPA
EIS is stalled, although there are only a few weeks of work left to
complete it.
The second set of permits for Shoreline Development was subject to
a public hearing conducted by a Hearing Examiner appointed by Cowlitz
County. The Hearing Examiner denied the shorelines permits also on the
SEPA findings concerning interstate rail capacity, train traffic (and
its attendant effect on vehicular traffic), train emissions, vibrations
and noise, and train safety. Millennium is now appealing that decision
to the State of Washington Shorelines Hearing Board.
Another legal challenge is underway as a result of the Department
of Natural Resources (DNR) withholding consent to a sublease between
the property owner, Northwest Alloys (a subsidiary of Alcoa), and
Millennium. Millennium prevailed in that lawsuit when the judge ruled
that DNR action in withholding the sublease was ``arbitrary and
capricious.''
abuse of nepa process
I took time away from my job, as did a number of my members, to
participate in the NEPA process provided by the Corps of Engineers.
Rather than functioning as a useful tool to educate agency decision
makers of the environmental pros and cons of a proposed project and to
solicit input from the public as Congress intended, NEPA has been used
to protract and impede agency officials from making a sensible permit
decision in a reasonable amount of time. I have testified at multiple
public hearings across Washington State over a period of 5 years and
yet, the Corps of Engineers has still not completed its environmental
review.
I attribute the delay in the NEPA Final EIS in part to the way in
which the process has been hijacked by activists seeking to deny
projects that don't align with their political agendas.
NEPA was not enacted to function as a political process to allow
members of the public to voice their approval or disapproval of a
controversial project. Yet the multiple NEPA hearings I attended on the
Millennium project functioned as a public voting booth of sorts;
members of the public were both allowed and encouraged to use the
public forum to voice their personal sentiment on whether the project
should be permitted. At these public hearings, I witnessed singing
grandmothers, people dressed as their favorite endangered species, and
other theatrical antics, designed not to inform agency officials but to
publicly protest the project.
Hundreds of people wearing red t-shirts were literally bussed in
from other cities and states to protest against the project. Hundreds
of thousands of people were provided form letters by local and national
environmental organizations to send to the Corps to clog the Corps'
record with anti-project comments so that project opponents could tally
the ``vote.''
Hundreds of local supporters showed up and outnumbered the out-of-
town protestors--which was great to see, but we should not have to take
time out of our work day to support jobs and private investment in our
community--and pretend that this is useful to the regulatory process.
This is not the informed and reasonable process that Congress
intended.
Millennium continues to move forward. The project was issued one
permit, but had other permits rejected which are now under appeal.
These permits were denied because of impacts which are the
jurisdiction of the Federal Government, those being interstate rail
capacity and effects of train traffic, as well as tribal concerns and
endangered species. Had the NEPA EIS been published, this might not
have happened.
Ironically, we fear the Corps will not finalize their work because
of these politically motivated state decisions.
The Building Trades supports responsible and consistent
environmental regulations and has been involved in environmental
improvements at industrial facilities for decades and has also been
leading the way to building and investing in renewable energy
technology.
I am not here today to encourage deregulation. The Building Trades
support a thorough permitting process, but that process needs to adhere
to the actual regulatory requirements and follow a reasonable timeline.
The Building Trades believe that projects like Millennium are
essential in the journey toward cleaner sources of energy, and we know
that this terminal can be built and operated safely and within the
environmental requirements of the law. And it can provide the family
wage jobs that my members and others in the community so desperately
need in Cowlitz County.
cost of regulatory delays to people's lives
We know what it means to live in an industrial town. And we support
Millennium Bulk Terminals and its project in Longview because we know
what it will do for us locally.
Our unemployment rates speak volumes, as do the large number of our
families who have to rely on free-and-reduced lunches in our schools
each day.
Finding family wage construction trade jobs in Cowlitz County is
tough. Many of our skilled trades workers are forced to make long daily
commutes or even travel to other states to find steady work.
The Millennium project and others like it present an opportunity
for my members to return to the days when they could go to work in the
morning and come home at the end of the day in time for dinner with
their family.
Projects like Millennium also provide the Building Trades with the
opportunity to replace our aging skilled workforce through our on-the-
job training programs, which we refer to as apprenticeship. We can only
admit new apprentices into our programs when there are apprenticeship
job opportunities in the marketplace.
The Millennium project is essential because its size and duration
makes it possible for us to responsibly gauge how many new people to
start on a career path so we can keep them busy learning and working
throughout their entire training.
Only 16 percent of residents of Cowlitz County have a college
degree. I am a firm believer that our children can have a future in
Longview with a good family wage job and do not necessarily need to
have a college degree.
It has dominated the news lately that the majority of high school
graduates do NOT get a college education. And many of those that do and
want to return to the town where they grew up find that the job
opportunities are few and far between, and end being forced to make a
home in a different community. This has prompted much discussion at all
levels of government about how to expand CTE--Career Technical
Education.
Career Technical Education is precisely what the Building Trades
do. Each trade covers the cost of training of the next generation of
skilled workers, including tuition, books, and tools, all while
providing benefits like health care and pension contributions. We do
this without any government funding because these workers are too
important to us to let budget shortages and partisan politics get in
the way of their careers.
This commitment to steady employment throughout the apprenticeship
program is especially important for some of the more vulnerable groups
we strive to bring into the Building Trades, such as our military
veterans. Our Helmets to Hardhats program helps service men and women
transfer their skills to careers within the construction industry. With
a suicide rate of about 20 veterans per day nationally, we want the
apprenticeship to serve veterans as they have served our country by
providing them with the dignity, self-worth, and family wages their
sacrifice deserves.
Millennium signed a Project Labor Agreement with the Building
Trades way back in 2013. This was unusual because it was so early in
the process, but Millennium truly wanted to show its commitment to
providing family wage jobs for members of the community.
As part of the Project Labor Agreement, the company pledged to
invest in our future by creating opportunities for new workers to learn
the trades through apprenticeship programs. It also contains a
commitment to the Helmets to Hardhats program, which is required in all
Building Trades Project Labor Agreements.
Millennium agreed to use skilled Union Building Trades workers on
the project, but also agreed to search for these workers locally first.
Without the tech boom that the Puget Sound area has enjoyed, our
community has had to look for other economic opportunities that play to
our strengths as an industrial community with access to major trade
routes.
The terminal would be an asset to the state's trade network,
providing private investment in rail and other infrastructure to help
ensure rapid delivery of other commodities.
This creates jobs in areas well beyond the boundaries of
Millennium's project.
It also supports infrastructure for future shorelines development
plans--and the jobs they bring--in places close to home, like Barlow
Point, a property just downriver from Millennium that the Port of
Longview recently acquired for growth.
Millennium's project would add millions in annual tax revenue for
schools and public services. At a time when state revenue is needed
most, we've suddenly become very picky about where that tax money
should come from--which works if you live in Seattle.
Millennium is not asking for special tax breaks, like Boeing did,
or challenging communities to bid against each other, like Amazon is
doing. Millennium has just asked our community, and our state, to treat
this project's applications like other port projects have been treated.
This project has endured the most rigorous scrutiny ever by state
regulators under the most stringent environmental standards in the
country. Opposing industrial activity, imposing endless regulations and
cherry-picking export commodities leaves no future for Cowlitz County.
My Building Trades members just want the same chance that their parents
and grandparents had here in Longview, which is to have a local job
with wages that can support a family and actually get to spend time
with that family after a full day of work.
Millennium's project will provide the jobs and opportunities our
community needs. That is why the Building Trades support the project.
And I am not here today just in support of my members. As part of
the Labor Movement, Building Trades cares not just about our craft
workers, but all workers. In addition to the tradesmen and women that
will be employed during construction of the facility, the Millennium
project is projected to produce 300 direct and indirect full-time,
family wage jobs.
And our concerns are not just limited to the jobs my community
needs now. We also have real concerns about our state's reputation and
economic future. The seemingly endless and arbitrary regulatory process
in Washington State will discourage future projects that would employ
members of the Building Trades and my community.
recommendations
In the long term, we in the Building Trades encourage the Committee
to put some controls around the process to prevent this type of abuse.
There should be a limit to the amount of time an agency can spend on a
NEPA process, the type of public process it provides, and the number of
pages the Final EIS consumes.
The state EIS was published in April of this year and was more than
13,000 pages. The Final Corps EIS should not follow suit. The Committee
should amend the statute to prevent this type of abuse of process, to
eliminate the political gamesmanship that ensues, and to return the
statute to its original intent.
But in the short term, we ask the Committee to insist the Seattle
Corps District publish the Final EIS for Millennium. As someone who
drives every day through Longview and sees the devastation caused by
the lack of good jobs, I am asking you to help my community. The
regulatory process in Washington State is broken. The result has been
years and millions of dollars of lost wages, and millions of dollars of
added cost to projects like Millennium during the review process.
Please don't let this continue with the Federal process.
*****
ATTACHMENT
Arbitrary and capricious: Rule of law binds agencies
By ROB McKENNA, Former Washington State Attorney General
Olympian Newspaper 11/17/2017
http://www.theolympian.com/opinion/op-ed/article185225268.html
After five years and thousands of hours of public testimony, it took a
Cowlitz County judge just five seconds to say what many of us have long
suspected: some state regulators are out of control, and important
parts of the state regulatory process are now tools of activist groups.
Cowlitz County Superior Court Judge Stephen Warning made his comments
in response to a dispute over access to the Columbia River for the
Millennium Bulk Terminals project. They suggest a level of frustration
not often seen from the bench. The Millennium case is a striking
example of how agency regulatory processes can be appropriated by
activists seeking to deny or block projects that don't align with their
political agendas.
Judge Warning, though, saw through that strategy. His October ruling is
based on the principle that the rule of law must be applied evenly,
regardless of politics. Regulatory agencies must not exceed the
authority granted to them by our elected representatives in the
Legislature.
The dispute before Judge Warning involves a lease from our state
Department of Natural Resources currently held by Northwest Alloys, and
its sublease with Millennium Bulk Terminals. Millennium's proposed coal
export terminal in Longview, Washington, has been under local and state
regulatory review for a record five years, and counting. At issue is
whether Northwest Alloys and Millennium can build a dock under the
lease.
Just prior to leaving office this year, former DNR Lands Commissioner
Peter Goldmark denied the requested sublease, citing fiscal issues--not
environmental issues--for the denial. Three activist groups, including
Columbia Riverkeeper, Washington Environmental Council, and Sierra Club
asked the court to consider environmental issues in reviewing
Goldmark's decision. In July, Warning denied them their request, noting
that the lease denial must rest on the words in Goldmark's denial
letter.
Warning again took up the lease issue and whether DNR acted legally in
denying the sublease. He did not mince words, calling DNR's decision
``arbitrary and capricious,'' highlighting how out of line the DNR
decision really was.
We've seen this sort of agency activism before on this particular
project. In September, the State Ecology Director denied Millennium a
water permit based on nine factors, none of which had anything to do
with water. The director has taken to Twitter on multiple occasions to
issue comments about the project, the tenor of which seems more
befitting an activist than regulator.
All of this casts doubt on our state regulatory process. Businesses and
individuals hoping for a fair and timely review of their projects in
our state are now likely to think twice before starting a project here.
In the case of Millennium, they're five years and $15 million into this
process. Other investors are unlikely to have this kind of time or
money for such a protracted process.
Homeowners have also been affected by serious regulatory delays. Just
ask rural landowners who have been dramatically affected by the Hirst
water rights decision. They can share similar stories of wasted time
and endless fees for wells they cannot dig, on land they cannot sell--
dream homes that have become regulatory nightmares.
Abuse of the regulatory process further political aims is an affront to
our democracy and must not go unchecked. Judge Warning said as much in
as little as three words. Let's hope they speak loud enough for all to
hear them and end such abuse.
***
Rob McKenna served two terms as Washington's attorney general. He
is currently in private practice with Orrick, Herrington & Sutcliffe
LLP, where he serves as a partner and co-chair of the firm's public
policy group.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Location of Millennium Bulk Terminals--Longview, LLC. Proposed
coal export terminal in Washington State.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Aerial view of Longview, Washington. The area along the
waterfront of the Columbia River was zoned industrial when the city was
created in the 1920s. The Millennium coal export project is located on
a shuttered 1940s era aluminum smelter site. Millennium has spent over
$25 million cleaning up the site. This commitment is in addition to the
$15 million spent to date for permitting the coal terminal over the
last 6 years.
Income Information on Cowlitz County Washington
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Prior to 1981 Cowlitz County's Per Capita Income was in the top
ten of all Washington Counties. With added federal and state
environmental regulations such as the spotted owl, our manufacturing
sector took a large hit and we have seen a steady decrease in out Per
Capita Income when compared to the nation and state of Washington. The
gap is increasing and we are lagging behind.
Cowlitz County is a gateway for trade for our state. Limits on the
use of our interstate and international transportation systems (rail
and the navigation channel) will cause Cowlitz County residents to not
fully benefit from the unique location of our county and ultimately
cause or residents to fall further behind.
______
The Chairman. Thank you. You timed that perfectly.
Ms. Bear, you have 5 minutes.
STATEMENT OF DINAH BEAR, FORMER GENERAL COUNSEL, WHITE HOUSE
COUNCIL ON ENVIRONMENTAL QUALITY, TUCSON, ARIZONA
Ms. Bear. Chairman Bishop, Ranking Member Grijalva, and
distinguished members of the Committee, thank you for the
opportunity to testify this morning about the National
Environmental Policy Act.
At its heart, NEPA is grounded in certain basic beliefs
about the relationship between citizens and their government.
Those core beliefs include an assumption that information
matters, that citizens should actively participate in their
government, and that the NEPA process should be implemented
with both common sense and imagination.
NEPA also rests on a belief that the social and economic
well-being of human beings is intimately interconnected with
their environment.
At the Federal level, NEPA is the law that provides the
broadest, most systematic way for citizens to know what their
government is going to do before they do it, and to have some
input in the analysis leading up to that decision.
When proposed actions trigger the need to prepare an EIS,
the potential consequences are extremely significant, and the
impacts may last for decades, if not centuries. Time taken for
the purpose of doing excellent analysis and public involvement
is time well spent. We also need to remember that citizens who
are not professional members of trade associations, public
interest groups, law firms, or otherwise professionally
employed in the environmental field need real time to review
documents and write comments.
It is true, though, that the NEPA process is delayed at
times--too many times--for reasons that have nothing to do with
the environment. In my experience, the major causes are lack of
staff capacity in the Federal agencies and lack of adequate
training. My experience is that agency capacity is dramatically
insufficient.
When I entered public service in 1981, agencies typically
had or were building a multi-disciplinary staff to implement
NEPA. Over time, agency capacity has been severely diminished.
In some cases, offices have been disbanded and other additional
responsibilities have been assigned to the point that the NEPA
capacity has been severely diminished. And one of the worst
situations I saw, an agency decided not to appoint anybody to
implement NEPA on the theory that everyone would do NEPA.
Recently a professor at the University of Arizona stated
that most of the time costs for conducting NEPA right now are
due to limited staff. NEPA projects wait in line until staff
are available to do the work. The capacity for training has
also been decimated. I sympathize with some of the problems
that both Mr. Bridges and Commissioner Willox pointed out in
their testimony, which are issues that should never have arisen
under the current regulations, and I am afraid lack of training
had something to do with the problems that emerged.
Congress has passed a number of ``streamlining provisions''
and transportation authorization bills, as well as the FAST
Act. A number of those provisions make sense. Some, in my view,
go too far. Executive Order 13807 seeks to expedite the review
process with a goal of completing environmental review
processes within 2 years. CEQ has also taken a number of steps.
None of these measures will succeed if Federal agencies lack
skilled, trained staff to implement them.
So, my first recommendation, not surprisingly, is to direct
agencies through both oversight and through the appropriations
process to prioritize adequate trained staff to implement NEPA
and ensure that the executive branch does implement the
provisions in FAST-41, allowing the collection of fees from
infrastructure sponsors with some safeguards to ensure
independence of the agencies.
If there is any doubt at this point of time that there is a
problem with staff capacity, additional study of staff
capacity, or a study, actually, would be very useful. I would
also recommend the study comparing staff with consultants.
Special attention should be given to social, economic, and
health impacts. The quality of that analysis, I agree with Mr.
Willox, is lacking. And NEPA is all about, as one of the
sponsors said, a policy for people and the human environment,
which is the key phrase in NEPA.
I think I will end there. I have other recommendations. I
ask that my full testimony be included in the hearing record.
Thank you very much and I look forward to questions.
[The prepared statement of Ms. Bear follows:]
Prepared Statement of Dinah Bear, Former General Counsel, White House
Council on Environmental Quality, Tucson, Arizona
introductory remarks
Thank you for the invitation to appear before the House Natural
Resources Committee to testify on the issue of how to modernize the
National Environmental Policy Act (NEPA) for the 21st century. I
appreciate the opportunity to testify, and hope that my remarks will
assist the Committee.
By way of background, I was asked to serve as Deputy General
Counsel for CEQ with President Reagan's administration in 1981. The
Council on Environmental Quality (CEQ) is the agency established by
Congress with responsibility for overseeing the National Environmental
Policy Act. In 1983, I was appointed as General Counsel, which was then
and remains a non-career position. In that role, I had responsibility
for oversight of implementation of NEPA. I served in that position
through both terms of President Reagan's administration and that of
President George H.W. Bush. I resigned from CEQ in October, 1993, and
resumed responsibilities as General Counsel in January, 1995. I was
General Counsel at CEQ during the Clinton and the George W. Bush
administrations until the end of calendar year 2007, when I retired
from Federal service. My husband and I moved to Tucson, Arizona last
year and I continue to be active in the field of environmental law
generally and NEPA specifically.
the national environmental policy act
As the title suggests, the National Environmental Policy Act, this
country's environmental magna carta, sets forth this country's policies
regarding the environment. In discussing NEPA, it is good to begin with
a reminder of those policies:
``CONGRESSIONAL DECLARATION OF NATIONAL ENVIRONMENTAL POLICY
Sec. 101 [42 USC Sec. 4331].
(a) The Congress, recognizing the profound impact of man's activity on
the interrelations of all components of the natural environment,
particularly the profound influences of population growth, high-density
urbanization, industrial expansion, resource exploitation, and new and
expanding technological advances and recognizing further the critical
importance of restoring and maintaining environmental quality to the
overall welfare and development of man, declares that it is the
continuing policy of the Federal Government, in cooperation with State
and local governments, and other concerned public and private
organizations, to use all practicable means and measures, including
financial and technical assistance, in a manner calculated to foster
and promote the general welfare, to create and maintain conditions
under which man and nature can exist in productive harmony, and fulfill
the social, economic, and other requirements of present and future
generations of Americans.
(b) In order to carry out the policy set forth in this Act, it is the
continuing responsibility of the Federal Government to use all
practicable means, consist with other essential considerations of
national policy, to improve and coordinate Federal plans, functions,
programs, and resources to the end that the Nation may----
1. fulfill the responsibilities of each generation as trustee of the
environment for succeeding generations;
2. assure for all Americans safe, healthful, productive, and
aesthetically and culturally pleasing surroundings;
3. attain the widest range of beneficial uses of the environment
without degradation, risk to health or safety, or other
undesirable and unintended consequences;
4. preserve important historic, cultural, and natural aspects of our
national heritage, and maintain, wherever possible, an
environment which supports diversity, and variety of
individual choice;
5. achieve a balance between population and resource use which will
permit high standards of living and a wide sharing of
life's amenities; and
6. enhance the quality of renewable resources and approach the
maximum attainable recycling of depletable resources.'' 42
U.S.C. Sec. 4331.
Congress sought to ensure that Federal agencies implemented these
policies by mandating a process by which executive branch agencies
would analyze the environmental and related social and economic impacts
of a proposed action and reasonable alternatives to the proposed action
to meet a particular purpose and need identified by an agency. It also
established CEQ to oversee implementation of the Act.
What is often referred to as ``the NEPA process,'' or more
globally, the environmental assessment impact process, reflects a
common-sense approach to decision making. Basically, Federal agencies
identify a need to take action, develop a proposed action and identify
reasonable alternatives and analyze the effects of the various
alternatives. As stated in CEQ's regulation at 40 CFR Sec. 1502.14, the
``heart'' of an EIS is the alternatives section; without alternatives,
the analysis simply documents a decision already made instead of
actually informing it. As then Governor Fruedenthal of Wyoming put it
once, ``The National Environmental Policy Act is not about what we do
or do not like. Rather, it is about displaying a true range of
alternatives to address the issues raised during the planning
process.'' Letter from Governor David Freudenthal to Rawlins Field
Office, Bureau of Land Management, March 15, 2005.
In my view, the most exciting development in NEPA has been the
formulation of truly reasonable alternatives developed by citizens,
often coalitions composed of people representing diverse
constituencies, who present an alternative to an agency and see it
analyzed in an EIS and on occasion, ultimately chosen in whole or part
as the agency's decision. That's seems to me to be a true living
example of democracy in action. In the context of Federal agency
decision making, NEPA is the law that provides the broadest, most
systematic way for citizens to know what their government is going to
do before it happens and to be involved in the analysis leading up to
the government's decision. It has had an enormous impact in this
country and around the world.
Under CEQ's regulations implementing the procedural provisions of
NEPA, each department and agency identifies the anticipated level of
environmental impact, based on its experience, that typically result
from undertaking the type of actions it normally undertakes to fulfill
its mission. Actions that have significant impact on the environment
require preparation of an environmental impact statement (EIS). In
2012, the last year for which CEQ has posted the number of EISs
prepared, there were 397 draft and final EISs prepared--spread out over
the 85 some Federal agencies. By far, the preponderance of Federal
actions come under either categorical exclusions (CEs), which require
no written documentation under CEQ's regulations. The next most common
type of proposed Federal action triggers the need to prepare an
environmental assessment (EA), which may conclude in either a Finding
of No Significant Impact or a decision to prepare an EIS. Public and
intergovernmental participation requirements are commensurate with the
level of impacts. There is a considerable amount of flexibility under
the CEQ regulations as to how agencies can implement the NEPA process.
There are also time tested provisions for emergency situations related
to actions that would normally require an EIS and provisions for
dispute resolution.
At its heart, the NEPA process is grounded in certain basic beliefs
about the relationship between citizens and their government. Those
core beliefs include an assumption that information matters, that
citizens should actively participate in their government, that the NEPA
process should be implemented with both common sense and imagination,
and that there is much about the world that we do not yet understand.
NEPA also rests on a belief that the social and economic welfare of
human beings is intimately interconnected with their environment.
state and local governments' role in the nepa process
In NEPA and the CEQ regulations implementing it, states and local
governments are afforded special roles in the NEPA process. Under
Section 102(2)(D) of NEPA, an EIS for a Federal action funded through a
grant program to states may be prepared by a state agency if (i) the
agency has statewide jurisdiction and has the responsibility for such
action; (ii) the responsible Federal official furnishes guidance and
participates in such preparation; (iii) the responsible Federal
official independently evaluates such statement prior to its approval
and adoption; and (iv) the responsible Federal official provides early
notification to, and solicits the views of, any other state or any
Federal land management entity of any action or any alternative thereto
which may have a significant impact related to the action and prepares
a written assessment of any disagreements among such agencies for
inclusion into the EIS. Additionally, there are several grant programs
which delegate responsibility for NEPA to the grant recipient; for
example, the Department of Housing and Urban Development's Community
Development Block Grant Program and the Urban Development Action Grant
program.
Under CEQ's regulations, a state or local government agency can be
either a joint lead agencies, typically used when the state has a so-
called ``little NEPA'' law to avoid doing the process twice, or assert
jurisdiction by law or special expertise to become a cooperating
agency. If there is state law or local ordinance in addition but not in
conflict with NEPA, Federal agencies are instructed to cooperate in
fulfilling those requirements so that one document will comply with
applicable laws at all levels of government. 40 CFR Sec. 1506.2.
During the 1990s, CEQ received many complaints from county
commissioners in the West, especially from Wyoming and New Mexico,
about being denied cooperating agency status. In looking into those
complaints, we determined that these grievances had legitimacy. CEQ
then guidance documents on cooperating agencies, including quite
specific guidance regarding county and state governments, and
instituted an annual reporting requirement for Federal agencies
regarding cooperating agencies. At present, CEQ is working on a series
of memoranda that compare and contrast state and local environmental
review requirements with Federal requirements, as well as providing
contacts for each jurisdiction.
Finally, in the past few years, there have been congressional moves
to delegate NEPA compliance in whole or part to states. This has been
particularly been true for Federal highway activity, which long
operated under Section 102(2)(D) of NEPA explained above for
preparation of EISs. Legislation now allows states to assume
responsibility for determining which activities are categorically
excluded; for example, earlier this year, the Federal Highway
Administration published the 3rd renewal of a Memorandum of
Understanding with the state of Utah in which the state assumes
responsibility for determining whether certain highway projects can be
categorically excluded from written NEPA compliance as well as assuming
responsibility for 30 environmental laws for those actions (while
excluding government to government consultation with tribes).
Additionally, the recently passed so-called ``FAST Act'' allows up
to five states to substitute state requirements for environmental
review for Federal review requirements where state requirements are
``at least as stringent'' as the Federal requirements proposed to be
replaced. 30 U.S.C. Sec. 330(d)(1)(A). CEQ recently published, for
public review and comment, proposed criteria for determining which
states have requirements that qualify under this Act.
causes of delay
There is a perception that compliance with NEPA causes significant
delays in approval of large numbers of proposed actions. Sometimes that
is true and sometimes it is not.
When NEPA Is the Reason
It is important to acknowledge that in the relatively few instances
when proposed actions trigger the need to prepare an EIS, the potential
consequences are extremely significant and ones that the affected
community likely may live with for decades if not centuries, depending
on the nature of the action. Time taken for the purpose of doing an
excellent job of analysis and public involvement is time well spent. It
is also important to understand that citizens need some real time to
review document and write comments--more time than ``streamlined''
provisions provide. For example, during my tenure at CEQ, the New
Mexico Cattle Growers Association and New Mexico Wool Growers
Association both advocated for mandatory 90-day comment periods on all
environmental assessments. That's not the current rule, but they
emphatically reminded us that for many in rural America, 30 days is
simply not a sufficient comment period.
It is true, though, that the NEPA process is delayed at times,
whether for preparation of EISs, EAs or even processing categorical
exclusions--for reasons that have nothing to do with the protection of
the environment, our communities or public lands. In my experience,
there are two related reasons for that, both dealing with issues of
capacity within agencies: lack of staff with responsibility for NEPA
implementation and lack of training.
I am not aware of any systematic accounting of staff capacity for
NEPA implementation within Federal agencies that charts the personnel
trend over the past few decades. But my experience is that the trend
has been very much in the wrong direction--that is, dramatically down.
When I first entered public service in 1981, major departments and
agencies typically had or were building a multi-disciplinary staff to
implement NEPA and a network of field offices. For example, the Office
of Environmental Coordination for the Forest Service ``had national
responsibility for leadership, NEPA policy and procedures, training and
oversight. It also had agency responsibility for coordination and
liaison with other agencies. In 1989 we decided to greatly expand our
national training effort to ensure that all of our people at the field
level and all of the knowledge they needed to make environmentally
sound and defensible decisions . . . [the staff] did an outstanding job
of developing a national program that involved training a cadre of
trainers from all the Regions. These people then went back to their
Regions and developed their Regional Cadre and passed the training to
all of the National Forests in their Regions.'' Personal communication
from David Ketcham, first Director of the Office of Environmental
Coordination, to Dinah Bear, July 14, 2017.
Since that time, agency capacity in all of these aspects has been
severely diminished. In some cases, offices have been disbanded; in
others, additional responsibilities have been assigned to the point
that the capacity for NEPA work is severely diluted. In one of the
worst situations I've seen, an agency decided not to fill NEPA
positions on the theory that ``everyone'' would do NEPA. The Task Force
on Improving NEPA established by this Committee in 2005 identified this
as an issue and the situation seems to have gotten worse since then.
Recently, at the University of Arizona, Dr. Kirk Emerson, in the School
of Government and Public Policy has been working with public land
agencies and ``we have learned through some of our public land agency
interviews, most of the time costs for conducting NEPA right now are
due to limited staff. NEPA projects wait in line, until staff are
available to do the work.'' Personal communication from Dr. Kirk
Emerson to Dinah Bear, November 19, 2017.
Further, and importantly, the capacity for NEPA training within the
agencies has been decimated. Far too many employees learn ``on the
job'' in ways that do not provide a solid foundation for understanding
how to do the job. Staff who are not fully trained in implementing NEPA
often end up doing a lot of extra work in an attempt to make sure they
are doing the right thing. I recall one gentleman who came to a long
overdue NEPA training course after being assigned NEPA responsibilities
for an entire region 6 months prior to the workshop. He had no
background whatsoever in NEPA when he was assigned the job of advising
staff throughout the region on difficult NEPA issues. He had faithfully
written down every question that came to him that he couldn't answer
and brought them to the workshop for answers. These kinds of situations
are big problems in the real world--not a NEPA problem, but a training
and management issue.
In the past few years, Congress has passed a number of
``streamlining'' provisions in transportation authorization bills as
well as the FAST Act to expedite the NEPA process for infrastructure
projects. A number of those provisions make sense; some, in my view, go
too far. Executive Order 13807 also seeks to expedite the review
process with a goal of completing environmental review processes within
2 years and issuing a single Record of Decision for infrastructure
projects. Independently over the past decade, CEQ has taken a number of
steps to both increase transparency regarding the progress of the
environmental review for infrastructure projects and to reduce delays.
However, these measures will not succeed if the Federal agencies lack
skilled staff to implement them.
Delegating NEPA responsibilities to the states or local governments
does not automatically solves the capacity problem. Indeed, depending
on the state or local government, there may be even less capacity to
undertake the process. A 2003 GAO report found that 69 percent of
transportation stakeholders reported that both state departments of
transportations and Federal environmental agencies lacked sufficient
staff to handle their workloads. Highway Infrastructure: Stakeholders'
Views on Time to Conduct Environmental Reviews of Highway Projects,
GAO-03-545, p. 5. It would be good to have this analysis updated.
When NEPA Is Not the Reason
Little systematic research has been done by neutral organizations
on the causes of delay in terms of Federal decision making. GAO
underscored the paucity of information about NEPA implementation in a
2014 report, Little Information Exists on NEPA Analysis (GAO-14-369).
Such research that does exist relates almost exclusively to Federal
highway actions. Since at least the mid-1990s, the General Accounting
Office/General Accountability Office (GAO), and the Congressional
Research Service (CRS), have prepared a series of reports, remarkably
consistent in their findings, regarding the construction of highway
projects and the relationship of environmental laws generally and NEPA
specifically to decision-making timelines. This type of analysis is
needed more broadly if agencies and/or legislators are going to be able
to formulate successful approaches to reducing delays. In short, the
GAO and CRS reports find that a number of Federal projects have indeed
been delayed or stopped but for reasons that have nothing to do with
NEPA, although NEPA usually gets the blame. Reasons include lack of
funding, changes in the proposal by applicants, assessment by
applicants that the project is no longer desirable for a variety of
reasons, opposition from citizens and state and local governments. See,
for example, The Role of the Environmental Review Process in federally
Funded Highway Projects: Background and Issues for Congress, CRS 7-
5700, R42479, April 11, 2012.
recommendations for modernizing nepa in the 21st century
Increase Capacity and Cut Contracting
As discussed above, in my view, the lack of trained staff within
government agencies is a major cause of delay in the NEPA process.
Changes in the law or regulations won't make a difference if there is
no who knows about those changes and is equipped to implement them. For
example, many people concerned about delay in NEPA advocate for
expanded use of categorical exclusions. I think we've reached if not
surpassed the limit of acceptable CEs and instead the effort should be
directed to ensuring that agencies understand how to use them. CEQ
requires no paperwork to utilize a categorical exclusion once it is
established, although many agencies do require at least some
documentation. However, there have been found instances of agencies
preparing literally hundreds of pages of documents to justify the use
of a categorical exclusion. The point is that just mandating the use of
a categorical exclusion doesn't work if there is no staff to implement
it or the staff that is there doesn't know how to handle a categorical
exclusion. Why does such a thing happen? Lack of training is the
primary answer. Further, agencies who don't have the capacity to
implement seldom have competent oversight either. And CEQ, which is
ideally situated to do both generic, across-the-board and more focused
oversight, itself suffers from serious staff shortages. For too many
years during its 47-year tenure, CEQ has only had one or possibly two
people charged with overseeing about 85 agencies in the executive
branch. At other times, it has had a staff of five to seven
professionals. At that staff level, CEQ can do some serious oversight
work. With only one or two people, only the firestorm of the day can be
addressed.
As the result of these capacity problems, when possible, agencies
now generally hire consultants to prepare NEPA documentation and often
to run the public involvement process. There are many consulting firms
that include personnel who are knowledgeable about the NEPA process and
do a good job from a technical perspective (there are also some, of
course, who are not up to the task). However, whatever a consultant's
expertise, using outside personnel inevitably delays the process,
whether by virtue of the procurement process or the need for oversight
and review from agency staff that may be unavailable or under
qualified. In fact, the EIS processes I've seen done in, for example, 2
years, have been conducted solely by qualified agency staff with
support of agency leadership. Further, routinely contracting out NEPA
work dilutes much of the point of the process by often removing agency
staff from direct contact with the people most interested, concerned
and affected by the proposed action.
Recommendations: Congress should direct agencies, through the
appropriations process, to prioritize ensuring that agencies have
adequate trained, competent staff to implement the NEPA process.
Congress should also continue to authorize shared resources between
state and Federal agencies, as they have done to expedite both highway
funding and certain projects designed to mitigate risk of fire near
communities. The executive branch should implement the provisions in
FAST-41 authorizing a system to collect fees from infrastructure
project sponsors to fund environmental review personnel in agencies
with adequate safeguards to ensure the independence of agency staff.
If doubt still exists as to the validity of these concerns,
Congress should direct CEQ or the National Academy of Sciences to
engage in a comprehensive study of current Federal agency NEPA staffing
issues, including capacity, training and retention and recruitment of
experienced staff. Further, CEQ should ensure that agency decision
makers understand the basic purposes and requirements of NEPA and
encourage them to work with their staff to implement NEPA in a flexible
and creative manner. Additionally, I would urge a study be undertaken
by CEQ and the Office of Management Budget jointly to compare the costs
of undertaking NEPA review through the use of consultants with the cost
of maintaining a small core of competent agency staff. The latter would
be, as the GAO has reported, challenging but not impossible if it is a
multi-year study and agencies are given direction on budgeting and
accounting for future fiscal years.
Finally, Congress should pause and evaluate before passing further
streamlining provisions. Before the measures mandated passed by
Congress in the 2012 MAP-21 transportation authorization bill had been
implemented, Congress passed further streamlining requirements in the
FAST Act that caused confusion and delay in implementing these
measures. Vulnerabilities Exist in Implementing Initiatives Under MAP-
21 Subtitle C to Accelerate Project Delivery, Office of the Inspector
General, March 6, 20107. The combination of FAST-41, Executive Order
13807 and other measures taken by the Administration is a lot for
understaffed agencies to implement and should be evaluated prior to
further measures.
Increase Efficiency by Using 21st Century Technology
One obvious suite of measures that the Federal Government should
take to bring NEPA into the 21st century is to be utilize 21st century
technology in a manner that both reduces the amount of time needed for
preparation of NEPA analyses and utilizes the vast amount of
information stored in NEPA documents to evaluate and improve analyses.
Almost 50 years of data and analyses contained in NEPA documents
and paid for by taxpayers' money should be a treasure trove of
information for both the public and private sectors. NEPA analyses
cover all parts of the country, contain ecological, social and economic
data and after five decades, should be readily available for trends
analysis. Technical tools such as natural language processing, text
mining and spatially explicit information retrieval as well as modern
machine reading systems such as PaleoDeepDive could be utilized to
facilitate access to this information. Imagine the boon to analyses and
the understanding on the part of all interested parties if 50 years of
information about, for example, the ecology, economy and communities of
the Central Valley of California--or national forests in Idaho--or the
colonias along the U.S. Mexico border--were available within a day. Yet
today, no such system exists. Indeed, even obtaining EISs, let alone
environmental assessments, which have no central filing system, can be
very challenging and if a person does dig such documents out of the
National Archives, there is no shortcut to going through each document
individually in hard copy.
CEQ has identified the need to use information technology tools to
improve the efficiency and management of NEPA reviews and has promoted
the use of various IT tools such as NEPAassist geospatial systems for
preparation of NEPA documents. However, the agency's limited resources
do not currently allow it to tackle the larger issues of making
available EISs and other valuable NEPA documents, both past and
present, easily accessible on a government-wide basis.
While advocating for better use of 21st century technology, I also
want to stress that it must be remembered that almost one-quarter of
Americans still do not have access to speedy internet service,
especially in rural areas. Agencies must not entirely abandon
production of hard copy documents.
Recommendation: CEQ should be funded and directed to establish
(either managed by CEQ directly or by an appropriate institution) a
publicly available database with sophisticated search capability for
NEPA documents for the entire executive branch. This effort should
include the promulgation of technical guidelines for electronic
submission of NEPA documents going forward into the 21st century.
Improve the Quality and Integration of Economic, Health and Social
Impact Analysis in the NEPA Process
Senator Henry Jackson stated during the Senate debate on NEPA's
passage, ``An environmental policy is a policy for people. Its primary
concern is with man and his future. The basic principle of the policy
is that we must strive, in all that we do, to achieve a standard of
excellence in man's relationship to his physical surroundings. If there
are to be departures from this standard they will be exceptions to the
rule and the policy. And as exceptions they will have to be justified
in the light of public scrutiny.'' Congressional Record-Senate, October
8, 1969, p. 29056. The core term in NEPA's requirement to analyze the
effects of proposals for Federal action is the impact on ``the human
environment'' and the policies set forth in the Act, cited at the
beginning of this testimony, talk about fulfilling the, ``social,
economic and other requirements of present and future generations of
Americans.'' The effects to be analyzed in either an EA or an EIS
include cultural, economic, social, aesthetic, historic and health
impacts. 40 CFR Sec. 1508.8.
However, the quality of social and economic analysis is, as a
general rule, far below that analysis of what are thought of as
traditional fields of environmental study (i.e., air, water, wildlife).
Often, social impacts and economic impacts are blurred together and
merged into something labeled ``socioeconomic effects'' that
essentially is a data dump of information that may or may not be
relevant. Further, with some exceptions, human health impacts are
frequently overlooked or shortchanged in NEPA analyses. See, National
Research Council, Improving Health in the United States: Health Impact
Assessment (advocating for improved integration of health impacts into
the NEPA process as relevant) (2011), available at https://www.nap.edu/
catalog/13229/improving-health-in-the-united-states-the-role-of-health.
Some of the shortchanging of analysis regarding impacts on human
beings is due to a misunderstanding of both the CEQ regulations and
applicable case law. Those misunderstandings, in turn, have left
already understaffed agencies bereft, for the most part, of any
expertise related to human health, community welfare, and economics and
a proposed action's impacts on all of the above. Some citizens, whether
western ranchers, residents of inner cities or Native Alaskans, have
concluded that the law has no room for consideration of impacts on
human beings. This feeling undercuts citizens' sense of mattering to
Federal agencies, weakens agencies' understanding of the communities
they serve and it is wrong as a matter of law.
Recommendation: CEQ should be directed to work with Federal
agencies to identify obstacles to accomplishing professionally
competent economic, social and health analyses and to promote
recruitment of personnel with these types of credentials to joint
agency staff or partnerships with appropriate entities, such as public
health organizations. As needs are identified and as appropriate, CEQ
should also publish guidance or handbooks on particular issues of
common concern regarding analyses of these types of impacts.
Make the Process Count by Making Mitigation Binding
For understandable reasons, the post-decisional aspects of NEPA
gets short shrift from everyone. The NEPA process is primarily a
predecisional process and the work and energy focuses on informing that
decision. NEPA does not require agencies to mitigate adverse impacts
and nothing in NEPA makes mitigation measures that are included in
decisions automatically binding. Yet it is rare, if not impossible, to
find a decision document following the NEPA process that does not
include mitigation measures. And in some cases, considerable resources
have been invested in the process of designing mitigation. But are
those mitigation measures implemented? And if so, do they have the
desired effect? The answers to these questions are largely unknown. As
a general rule, little to no monitoring takes place. So the taxpayers
don't know if commitments made by an applicant or agency are carried
out and none of us know the effectiveness of those measures if they
have been implemented. This is not a good situation, either from the
perspective of the resources being impacted or citizens' trust in their
government to carry out commitments. Both Congress and citizens should
expect better from Federal agencies.
In 2011, CEQ issued guidance to Federal agencies regarding
mitigation and monitoring. Memorandum for Heads of Federal Departments
and Agencies on Appropriate Use of Mitigation and Monitoring and
Clarifying the Appropriate Use of Mitigated Findings of No Significant
Impact. In part, the guidance is based on the excellent, common-sense
Department of the Army regulation at 32 CFR part 651, Appendix C, which
requires proposed mitigation measures to be a line item in the
proponent's budget or equivalent funding document and/or include the
mitigation commitment in a legally binding document (for example,
permits or grants). It mandates a monitoring and enforcement program
for adopted mitigation and provides for situations in which mitigation
measures are not implemented.
The CEQ guidance also discussed how the integration of
Environmental Management Systems (EMS), used extensively in the private
sector, or other data or management systems can be integrated into the
monitoring mitigation commitments. These are especially useful systems
for monitoring compliance in the context of infrastructure
developments.
Recommendation: Either the National Academy of Sciences or CEQ
should be tasked to initiate a review of both the implementation and
effectiveness of mitigation measures for both agency-initiated and
applicant sponsored actions in selected agencies and report back to
committees of jurisdiction within 1 year. The report may suggest
concrete steps to be taken by either Congress or CEQ depending on the
findings.
Elevate the Role of Tribal Governments in NEPA
I want to end with perhaps the most egregious oversight in NEPA--
the role of tribal governments. While perhaps understandable (although
not acceptable) in 1969 when NEPA was passed; and less so in 1978 when
the CEQ regulations were issued, it is completely unacceptable now. The
CEQ regulations on their face confine cooperating agency status for
tribes to situations where the effects of a proposed action are felt on
reservations. 40 CFR Sec. 1508.5 Most Native Americans live off
reservation in the continental United States and with one small
exception, Alaska Natives do not live on reservations at all. Tribal
governments must be recognized as being on a level playing field with
local and state governments and afforded all due respect as potential
joint lead and cooperating agencies and should be able to execute all
other responsibilities afforded state and local agencies. Short
changing the role of tribal governments in NEPA implementation
perpetuates a second class status for tribes that never was appropriate
but is even less so in the 21st century.
______
Questions Submitted for the Record to Ms. Dinah Bear, Former General
Counsel White House Council on Environmental Quality
Questions Submitted by Rep. Denham
Question 1. Ms. Bear, how does the Council on Environmental Quality
view this concept of NEPA reciprocity and what are your thoughts on
utilizing this tool with state water agencies for Bureau of Reclamation
water storage projects?
Answer. To be clear, I am no longer with the Council on
Environmental Quality (CEQ), but I can speak to how Congress and CEQ
have viewed the state's role in NEPA in the past, including the 25
years in which I served at CEQ as well as offering my own thoughts on
the matter.
Both Congress and CEQ have been very cognizant of the important
role of states and have provided mechanisms to involve states in the
NEPA process for Federal agency decision making in a very robust
manner. For example, NEPA already provides that a state agency or
official with statewide jurisdiction and the responsibility of carrying
out a program funded by Federal grants to the states may prepare an
environmental impact statement (EIS). 42 U.S.C. Sec. 4332(D). If the
state chooses to do so, the Federal agency involved must provide
guidance, participate in the process and independently evaluate the EIS
to ensure that it meets Federal standards. The Federal agency also
retains the responsibility to defend the EIS in Federal court if there
is a legal challenge. In my experience, the principal user of this
provision has been state highway departments, although the provision is
not limited to them.
Under CEQ's regulations, a state or local government agency can be
either a joint lead agency, typically used when the state has a so-
called ``little NEPA'' law to avoid doing the process twice, or assert
jurisdiction by law or special expertise to become a cooperating
agency. If there is state law or local ordinance in addition but not in
conflict with NEPA, Federal agencies are instructed to cooperate in
fulfilling those requirements so that one document will comply with
applicable laws at all levels of government. 40 CFR Sec. 1506.2.
Similarly, joint planning processes, joint environmental research and
studies, joint public hearings and joint environmental assessments are
already authorized under the same regulation.
Additionally, there are several grant programs which delegate
almost complete responsibility for NEPA to the grant recipient; for
example, the Department of Housing and Urban Development's Community
Development Block Grant Program and the Urban Development Action Grant
program. Importantly, these are situations in which the recipient of
the grant makes the decision about what to do with the funding, with
applicable statutory parameters, as opposed to a Federal agency.
Additionally, the recently passed so-called ``FAST Act'' allows up
to five states to substitute state requirements for environmental
review for Federal review requirements where state requirements are
``at least as stringent'' as the Federal requirements proposed to be
replaced. 30 U.S.C. Sec. 330(d)(1)(A). CEQ recently published, for
public review and comment, proposed criteria for determining which
states have requirements that qualify under this Act.
Here are some additional thoughts:
1. The opportunities presented for more robust state involvement,
either for assuming responsibility for an entire EIS or
sharing the responsibility with a Federal agency, were not
very robustly utilized during my tenure at CEQ (roughly
1981 through 2007). My sense of the reason for that is that
many states, especially states without a ``little NEPA
law'' at the state level, lacked capacity and were simply
not interested in assuming that responsibility. With some
notable exceptions (California), most states and local
governments were more interested in being cooperating
agencies than taking the lead role.
2. About half of the states do have ``little NEPA laws,'' but the
requirements under those individual state laws vary widely.
California's law, the California Environmental Quality Act,
is generally regarded as being stricter than NEPA, for
example, in the area of mitigation. Other state laws are
quite narrow and only apply to certain types of projects.
Wholesale delegation of NEPA responsibilities to states
under 50 separate state laws could, I would think,
complicate, not simplify, compliance with NEPA, especially
for large interstate projects like gas pipelines.
3. California already provides that if a project requires compliance
with both NEPA and CEQA, state or local agencies should use
the Federal document rather than preparing a separate state
document and then add to that document the additional CEQA
requirements if they are not included in the state
document. Cal. Code Regs. Title 14, Sec. 15221. So,
especially in California, with both the CEQ regulations
mandating joint EISs and CEQA's provision to use NEPA
documents, there rarely, if ever, should be two separate
documents (i.e., an EIS and an EIR). In my experience, many
of the failures that lead to separate documents are
management issues, not NEPA issues.
4. The purpose of the environmental impact assessment process is to
inform decision making. The responsibility for the process
needs to be vested in the institutional decision maker.
Thus, if a Federal agency is going to make a decision on
the proposed action, that agency should bear responsibility
for compliance with NEPA. If there is a state involved that
also needs to make a decision, the responsibility for the
environmental review process should be shared jointly, as
in the statutory and regulatory examples above. If final
decision making for the proposed action has been
transferred entirely to states, then it follows that it
would be appropriate for states to assume the
responsibility for the environmental review process.
5. I would warn against wholesale transfer of NEPA responsibilities
to states for a number of reasons. I have watched several
instances in which Congress has made available to the
states the opportunity to take over the environmental
review process--from the amendment to NEPA itself to pilot
projects in transportation and infrastructure bills. It is
honestly not clear to me that most states (again, with some
exceptions) are eager to do this. Assuming such
responsibility puts a greater burden on states with no
discernable advantage to them since without assuming the
entire responsibility, state agencies can still be at the
table and share in many (drafting documents, holding public
hearings, etc.) under current law if they so desire.
Implementing a mandate to assume such responsibility also
puts a burden on the states, unless Congress appropriates
funding to the states for the purpose of environmental
review. Also, some state laws, as noted above, are stricter
than NEPA; others are weaker. Creating 50 different
standards creates an uneven playing field and a bit of a
nightmare for interstate projects. Finally, to the extent
the proposed action involves a Federal interest and a
Federal decision, the far better and fairer allocation of
responsibilities and the construct that makes sense in
terms of fulfilling the purpose of the NEPA process is for
the Federal agency to retain the overall responsibility for
the process and partner with affected states to jointly
implement the environmental review process.
Questions Submitted by Rep. Grijalva
Question 1. Congressman Graves observed that your statement that
people would be much less likely to know what their government was
doing before they did it if NEPA were no longer the law made little
sense because states, local governments and businesses do tell people
what's going to happen ahead of time on a routine basis. There was no
time left for you to respond to that point, but would you do so now?
Answer. Congressman Graves is, of course, correct that many states,
local governments and sometimes businesses tell people what's going to
happen ahead of time. In some instances, there is a legal requirement
for states and local governments to do so. However, that is not
universally true, especially in the majority of states that do not have
a broad environmental impact assessment statute of their own. More to
the point regarding NEPA, there are many Federal actions taken which do
not come under the jurisdiction of another entity and are not
associated with a private business. As was brought up by another Member
during the hearing, this is especially true in the case of military
installations, where NEPA is typically the sole mechanism for advance
public notice of activities affecting the public. It is also true of
public land management, affecting much of the western United States.
Question 2. Commissioner Willox observed that counties need to be
part of the identification team working on an EIS and otherwise
involved early in the process. What is your perspective on this?
Answer. I agree with Commissioner Willox. CEQ has vigorously
encouraged Federal agencies to include counties (at their request) as
cooperating agencies, and as such, they should be included on ID teams
working on an EIS. A concern that Federal agencies had a few years ago
that inclusion of counties on such teams would be a violation of the
Federal Committee Advisory Act was addressed by Congress in 1995 that
provides for the inclusion of state, local, and tribal agency officials
when working to implement a program that anticipates intergovernmental
cooperation. It is not clear to me that the existence of this provision
is known and understood by all relevant agency staff. The National
Environmental Policy Act and the CEQ implementing regulations
specifically contemplate cooperative work with such intergovernmental
representatives.
Question 3. Mr. Howard's proposed amendment to the FAST Act
purports to bestow upon CEQ dispute resolution authorities. Does CEQ
currently play a role in dispute resolution in the context of NEPA?
Answer. CEQ has multiple dispute resolution roles. The most formal
role is the dispute resolution process established in the CEQ
regulations to resolve disputes between agencies over a proposed
action. That process, through which the head of one department refers
an action proposed by another executive branch department, includes
timelines, opportunities for both agencies to present their views,
opportunity for public involvement and ultimate resolution in a number
of ways, including elevation to the President. 40 CFR Sec. 1504.00 et
seq. CEQ also has a formal dispute resolution process in the event that
agencies cannot decide which agency should be the ``lead agency'' for
purposes of the NEPA process. 40 CFR Sec. 1501.5(3). More frequently,
CEQ routinely resolves interagency disputes and concerns raised by
private citizens, governors, Members of Congress and a whole host of
others who have concerns about a particular implementation issue
associated with NEPA.
Question 4. Mr. Howard specifically recommends that permitting
processes should take no longer than 2 years, but this one-size-fits-
all approach seems like it would quickly fail for larger and more
complex projects.
4a. Is a lack of mandated timelines actually a hurdle to efficient
environmental review?
Answer. I do not think that the lack of congressionally mandated
timelines are a hurdle to efficient environment review; I think the
lack of qualified staff to manage the NEPA process is a huge hurdle.
Agencies are not only free to set timelines, they are already required
to do so if an applicant requests time limits. 40 CFR Sec. 1501.8.
Interestingly, this is the provision in the CEQ regulations most
requested by business and industry representatives during the
development of the regulations, but it is almost never invoked. Besides
applicants, state or local agencies or members of the public may also
ask agencies to set time limits. The regulations provide that the
agency may consider a number of what I believe are quite sensible
factors in arriving at those time limits and call on agencies to
designate a person with NEPA responsibility to expedite the NEPA
process. A big problem today is that many agencies do not have such a
staff person who is both knowledgeable about NEPA and experienced in
management.
4b. Do you think there would be negative environmental impacts
caused by this kind of mandated time limit?
Answer. I am afraid that mandated time limits for all projects will
have a deleterious effect on the environment. When agency staff get the
signal that speed is more important than anything else and when
agencies are understaffed, problems will get missed or short changed. I
fear that in the rush to meet mandatory timelines, serious oversights
will come back to haunt our communities and our public lands and that
future generations will reap the results.
Questions Submitted by Rep. Costa
Topic 1: NEPA Delegation Authority
Question 1. Some states have enacted state level public disclosure
laws similar to NEPA whose standards meet or even exceed NEPA's
requirements.
For instance, in 1970 my home state enacted the California
Environmental Quality Act, which actually mandates that environmental
mitigation be performed if an action has an impact on the environment.
Unfortunately, in many instances, analysis under CEQA does not meet the
statutory requirements of NEPA, leading to duplicative work and delayed
project delivery.
I've heard that this is especially problematic for projects where
CEQA analysis and review has already been completed and as a result of
a Federal agency interaction either through a required permit or a
Federal funding agreement, an environmental review process under NEPA
is required. In fact, I've heard of some instances where local agencies
have rejected Federal funding because the delay to complete NEPA,
despite already having completed CEQA, would result in a greater
project cost.
This is simply unacceptable.
As you've mentioned, Congress has taken some steps to streamline
these analyses, specifically for highway projects. This could prove
beneficial to streamline projects in many congressional districts and
specifically for those projects in California, like the Atwater-Merced
Expressway that's needed to redevelop Castle Air Field or the
California High-Speed Rail project.
1a. Do you think that there are benefits to allowing projects in
states that have equally stringent environmental disclosure laws as
NEPA to move forward under a single environmental analysis?
1b. Is it reasonable for Congress to explore additional ways in
which NEPA delegation authority can be extended to the states?
1c. In your opinion, what sorts of agency actions lend themselves
to enhanced delegation authority? For instance, Reclamation projects,
FERC projects, or projects with Federal grant funds disseminated?
1d. If it is beneficial, is further action by Congress necessary to
move forward to expand delegation authority?
Answer. I agree that having separate documents (i.e., an EIS under
NEPA and an EIR under CEQA) is problematic. In the vast majority, if
not all, cases, it is also unnecessary and unwarranted. In my
experience, the problem virtually always lies with bad management of
the process, not the law itself.
First, NEPA already provides that a state agency or official with
statewide jurisdiction and the responsibility of carrying out a program
funded by Federal grants to the states may prepare an environmental
impact statement (EIS). 42 U.S.C. Sec. 4332(D). If the state chooses
to do so, the Federal agency involved must provide guidance,
participate in the process and independently evaluate the EIS to ensure
that it meets Federal standards. The Federal agency also retains the
responsibility to defend the EIS in Federal court if there is a legal
challenge. In my experience, the principal user of this provision has
been state highway departments, although there the provision is not
limited to federally-funded highways. In the case of California, as you
point out, there is both a strong environmental review law and
capacity. I am not sure why other agencies, besides the California
Department of Transportation, don't avail themselves of this provision.
Under CEQ's regulations, a state or local government agency can be
either a joint lead agencies, typically used when the state has a so-
called ``little NEPA'' law to avoid doing the process twice, or assert
jurisdiction by law or special expertise to become a cooperating
agency. If there is state law or local ordinance in addition but not in
conflict with NEPA, Federal agencies are instructed to cooperate in
fulfilling those requirements so that one document will comply with
applicable laws at all levels of government. 40 CFR Sec. 1506.2.
Similarly, joint planning processes, joint environmental research and
studies, joint public hearings and joint environmental assessments are
already authorized under the same regulation.
Finally, CEQA already provides that if a project requires
compliance with both NEPA and CEQA, state or local agencies should use
the Federal document rather than preparing a separate state document
and add to that document the additional CEQA requirements if they are
not included in the state document. Cal. Code Regs. Title 14,
Sec. 15221. Indeed, rather than CEQA documents not being adequate for
purposes of NEPA, my sense is that it is more frequently the other way
around--additions are needed to a NEPA document to make it compliant
with CEQA. Even so, there is no reason to have two separate documents
(and the processes that are associated with each document).
Given that legal authorization and mechanism already exist to not
only allow but promote one document instead of two documents for
environmental review and yet we continue to hear of situations where
two documents are produced, I would suggest a first step would be to
task either the General Accountability Office (GAO) or the
Congressional Research Service (CRS) initiate a discrete study to
identify and analyze perhaps half a dozen of situations where both a
NEPA and a CEQA document were produced, to determine: (a) the reasons
that two documents instead of one were produced, and (b)
recommendations to address those reasons. In the absence of a clear
understanding of the reasons that existing legal mechanisms were not
used or did not work, I am concerned that further legislation will not
actually achieve the intended goal.
1a. Yes, I think there are benefits to allowing projects in states
with equally stringent environmental disclosure laws to move forward
under a single environmental analysis. In my view, that single document
should be a joint Federal/state document.
1b. Per my answer above, I think a very specific study about the
reasons current mechanisms for joint documents and processes are not
utilized should be undertaken prior to passing more legislation.
1c. As noted above, NEPA already provides that a state agency or
official with statewide jurisdiction and the responsibility of carrying
out a program funded by Federal grants to the states may prepare an
environmental impact statement (EIS). 42 U.S.C. Sec. 4332(D). I should
also add that anyone--an applicant, state, local government or tribe,
may prepare an environmental assessment.
1d. It is important to keep in mind that the purpose of NEPA is to
inform decision making and so ultimately, it is the deciding body that
should have ultimate responsibility for NEPA. Delegating NEPA wholesale
to the states, for example for FERC projects, makes little sense when
FERC holds the decision-making authority. On the other hand, when a
state or local grant applicant is truly the decision-making authority,
then delegating the environmental review responsibilities makes some
sense. Congress has already done that in the case of the Community
Development Block Grant Program and the Urban Development Action Grant
program. There, the local communities are responsible for NEPA
compliance and stand fully in the shoes of the Department of Housing
and Urban Development (including in Federal court) as opposed to, for
example, FERC's authority to permit natural gas pipelines, under which
it has statutory authority in some circumstances to over-rule state
agencies.
Topic 2: FAST Act Streamlining Provision Implementation
Question 2. I have heard concerns from many infrastructure project
stakeholders that too much time is required to complete all of the
environmental reviews under NEPA (i.e., environmental assessments (EA)
and environmental impact statements (EIS). The U.S. Department of
Energy reported that the average completion time for an EIS in 2015 was
4.1 years, and the average cost was $4.2 million. A 2014 GAO report
found that the average completion time for an EIS in 2012 was 4.6 years
from the notice of intent to prepare an EIS through the issuance of the
record of decision. I have heard that these figures may underestimate
both time and costs. Available data from Federal agencies generally do
not account for costs beyond third-party contractor fees, including a
project applicant's data-development costs. The time estimates do not
include the work that precedes the decision to prepare an EIS or the
cost of defending them in court. I have heard other comments that
expediting reviews could lead to potential litigation which could
account for longer project delays beyond those that would have occurred
using a more slow and steadfast approach under NEPA.
Specific to infrastructure, there are NEPA streamlining reforms in
the FAST Act already. With the FAST Act, Congress and the Obama
administration sought to improve on past attempts to streamline the
NEPA process by coordinating and expediting NEPA review across a
broader range of agencies and industry sectors. The Act establishes a
Federal Permitting Improvement Council (the Council), composed of
officials from CEQ, OMB, and 13 other Federal agencies, to coordinate
this streamlining effort. The range of projects covered by the FAST Act
includes: ``renewable or conventional energy production, electricity
transmission, surface transportation, aviation, ports and waterways,
water resource projects, broadband, pipelines, [and] manufacturing.''
In addition, the Council has the authority to designate projects in
other industry sectors by majority vote.
To trigger the FAST Act, a project must be subject to NEPA; be
likely to cost more than $200 million; and either: (1) not qualify for
abbreviated environmental-review processes under any applicable law, or
(2) because of its size and complexity, would likely benefit from
enhanced coordination. Important aspects of Title XLI of the FAST Act
include:
Coordinated Project Plans. The plans will identify the
lead agency and cooperating agencies and set out a
permitting timeline. The lead agency is to develop the
permitting timetable in consultation with the cooperating
agencies and the applicant.
Permitting Dashboard. An expanded online database will
track the status of Federal NEPA reviews for each covered
project. The lead agency must post information, including
the permitting timetable, status of compliance for each
participating agency, and any memoranda of understanding
between the agencies.
In summary, the FAST Act already contains NEPA streamlining
language for infrastructure projects. There seems to be little data on
whether or not these provisions have been implemented or whether they
are working to accelerate project delivery in a way that is consistent
with the public disclosure requirements and alternatives analysis
required by NEPA.
2a. Is there information available about whether the existing
streamlining provisions have been fully implemented and what effect, if
any, they have had on project delivery timelines?
2b. If this information were available, would it assist Congress in
making any policy changes necessary to implement NEPA more effectively?
2c. If this information is not available, how would you recommend
this information be acquired and presented to Congress?
Answer.
2a. There is some information available about the implementation of
the streamlining provisions under the FAST Act. A fair amount of
information can be found on the website of the Federal Permitting
Improvement Steering Council (https://www.permits.performance.gov/) and
the Permitting Dashboard (https://www.permits.performance.gov/). The
FAST Act requires an annual report to Congress, and the first such
report was filed in April of this year (https://
www.permits.performance.gov/about/news/fast-41-report-Congress) and it
is worth reviewing. Some of the time to date, of course, has been spent
setting up the administrative infrastructure to administer the Act.
However, 38 projects are currently in the pipeline under FAST-41. The
Federal Permitting Improvement Steering Council has issued some
guidance to agencies. I am concerned about the extent of education and
training within the Federal agencies about implementation of the Act.
In terms of understanding the effect of the streamlining provisions, I
think it may be a bit early to assess the effect yet, as most projects
in the pipeline, for a variety of reasons (not all related to
environmental review) are still in process, although 11 projects have
been completed.
2b. I do think that analysis regarding the effect of FAST-41 on the
environmental review process would be useful to Congress in determining
whether to make further changes.
2c. I would suggest waiting a bit longer until more projects have
gone through the FAST-41 pipeline (perhaps 3 years from the date of
enactment of FAST-41) and then asking either GAO or CRS to analyze the
impacts of FAST-41, identifying both successes and problems.
Topic 3: Local Development Experience
Question 3. Recently approved by all permitting agencies last June/
July was a major ``new town'' project in my district that is designed
for roughly 5,000 new residences, 3 million square feet of commercial
and light industrial development, two new public schools, parks,
trails, environmentally sensitive conserved lands, and various other
related features. That project is now under construction.
The U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation
were key permitting agencies for this project, and NEPA compliance by
these agencies played a major role. Fortunately for this project, both
the Corps and Reclamation ended up working well together to resolve a
wide variety of issues, including some tricky NEPA compliance issues.
Other projects, I am told, have not fared so well.
However, with the benefit of 20/20 hindsight on this project, there
are at least two areas where I am told we could be doing better:
Need for a single lead agency for NEPA compliance. Many
projects, including the project in my district, require
permits from two or more Federal agencies. Although the
NEPA regulations contemplate a lead Federal agency for
purposes of NEPA compliance, it is too often the case that
Federal agencies work inefficiently with each other on NEPA
compliance issues, leading to time-consuming delays and
multiple meetings that can sometimes span weeks and even
months.
I believe that the NEPA regulations could be strengthened in that
regard with the intent of squarely assigning the
responsibility of NEPA compliance in one Federal agency for
all the Federal agencies that might be involved on a
particular project.
In my home state of California, our NEPA equivalent--CEQA--is an
excellent model for how this notion of a single ``lead''
Federal agency can work well.
Scope of analysis. Closely related to the idea of a
``single lead agency'' for each project is the importance
of defining a suitably encompassing ``scope of analysis''
for purposes of NEPA review. This is particularly important
for purposes of Section 7 consultation under the Endangered
Species Act.
If the ``lead'' Federal permitting agency defines its NEPA
``scope of analysis'' to only include the area of its
particular permitting jurisdiction, then the other Federal
permitting agencies for that same project may have no
choice but to prepare their own separate NEPA analysis if
their permitting jurisdiction does not coincide with that
of the ``lead'' agency.
For the project in my district, resolution of this particular
issue took months longer than it needed to, and further
clarity is needed for future projects. At base, there
should be a single ``lead'' Federal agency with a project-
specific ``scope of analysis'' that encompasses all Federal
permitting issues, not just those of the ``lead'' agency.
3a. I have heard from constituents that the 6-year statute of
limitations applicable to NEPA claims is too long. It creates too much
uncertainty and can be a sticking point with the project finance
community. Six years is too long to know whether an approved project is
going to become the subject of litigation alleging NEPA non-compliance.
The comparable statute of limitations under CEQA is 30 days.
What are your views on the idea of new legislation to shorten the
NEPA statute of limitations?
3b. Under NEPA, ``alternatives'' to the proposed project that must
be assessed in an environmental impact statement (EIS) are, according
to some Federal agencies and some courts, supposed to be reviewed at
the same level of detail as the proposed project. This project-level
review of the alternatives can be quite burdensome, difficult or
impossible to undertake (e.g., how can a bio analysis be undertaken at
an alternative site that is owned by someone else?), and ultimately, of
little value to the ultimate analysis.
What are your views on the possibility or need for new NEPA
regulations to better and more efficiently focus the ``alternatives
analysis'' component of NEPA review?
3c. Under NEPA, each Federal agency is authorized to develop its
own list of ``categorical exclusions'' that is intended to be a list of
activities that are determined to be so relatively minor in their
potential for environmental impacts as to excuse the need for further
NEPA analysis. It seems like a good concept, but I wonder if there are
improvements that could be made. In the interests of streamlining NEPA
review across all Federal agencies, there may be merit in issuing new
regulations that list categorical exclusions that are common to all
Federal agencies (e.g., ``minor construction''), thereby reducing the
possibility for inconsistent treatment of the same issue by different
agencies. These common categorical exclusions could be in addition to
the agency-specific ``CatEx's'' that are already in existence.
What are your views on the possibility of streamlining the CatEx
process by issuing new regulations that create categorical exclusions
that are common to all Federal agencies, perhaps in addition to the
agency-specific CatEx's that already exist?
Answer. First, on the topic of lead agencies, as stated, CEQ
regulations do provide for a lead agency. In the case of disputes over
what agency should be the lead, CEQ has a 20-day dispute resolution
process. 40 CFR Sec. 1501.5(e). The regulations do provide for the
possibility of joint lead agencies and when agencies opt for that
construct, it is important for the agencies to set out in writing which
agency is going to undertake what responsibilities. I am happy to learn
that in your view, the environmental review process ``new town''
project in your district worked well under the auspices of the U.S.
Army Corps of Engineers and the Bureau of Reclamation.
3a. In regards to the statute of limitations, Congress provided for
a 2-year (instead of a 6-year) period in the FAST Act. I believe 2
years is a reasonable period of time.
3b. I strongly believe that alternatives are the most important
element of the NEPA process, if done correctly. It is through the
analysis of reasonable alternatives that meet the stated purpose and
need that better decision can be made as opposed to just mitigating
impacts from an action. There are numerous examples of agencies
adopting better alternatives suggested by other governmental agencies
or public citizens through the NEPA process. Many of those examples
have resulted in millions of dollars of taxpayers money being saved,
improved decisions and happier constituents.
That said, there is no set number of alternatives that must be
analyzed in a NEPA document; the requirement is analyze ``reasonable
alternatives.'' If an alternative site is not available to the
proponent, analysis of that site is, as you suggest, of little value to
the decision maker. Agencies should be (a) aggressive in their pursuit
of and listening to outsiders about possible reasonable alternatives
and then (b) make a reasoned judgment about which alternatives are
reasonable and which are not. Much of this work depends on appropriate
training and good management. I would put the emphasis on those two
elements--which are sorely lacking in many agencies--rather than
changes to the regulations.
3c. There might be some merit in some carefully selected
categorical exclusions that are applied throughout the executive
branch. However, recall that agencies operate in extremely different
types of ecosystems--for example, what would easily qualify as a
categorical exclusion for projects in the continental United States
might have considerable impact in the Arctic environment. It is already
the case, though, that large departments, like the Department of the
Interior, have promulgated common categorical exclusions that the
agencies and bureaus within the department can utilize, supplemental by
agency specific categorical exclusions. It is also important to
remember that categorical exclusions are not supposed to be the
equivalent of legislative exemptions from NEPA; if, in a particular
case, there are extraordinary circumstances, an agency does generally
need to prepare an EA.
I'm not sure there is an awareness of how many categorical
exclusions already exist but there are hundreds of them. Sometimes we
are seeing legislation to enact categorical exclusions for actions that
are already categorically excluded. Agencies have been pressured by
both CEQ and Congress for at least the past 16 years to promulgate more
and more categorical exclusions. Rather than focusing on yet more
categorical exclusions, I would suggest some oversight on how the
existing ones are used. CEQ requires no paperwork at all for an
activity that has categorical exclusions. Most agencies do require some
documentation and it is sensible to put into the file 1-2 pages
documenting what categorical exclusion was used for a particular
proposed action so that someone else does not wonder whether NEPA was
complied with for a particular project. But there is absolutely no need
for the voluminous paperwork that some staff compile for each use of a
categorical exclusion; again, often due to lack of training.
Topic 4: Potential Guidance Updates
Question 4. Some stakeholders have indicated that new guidance from
CEQ would help streamline Federal review of infrastructure projects by
clarifying NEPA duties and procedures that are routinely challenged
legally. This is as important for agencies and projects as for the
public and the reviewing courts.
While there are some who believe that the underlying NEPA statute
is largely sufficient, some stakeholders assert that NEPA guidance has
not kept pace with the specific issues and arguments that are now
commonplace. Existing guidance tends to be high-level and conceptual;
effectively leaving it to the courts to discern what is or is not
required by NEPA. I have heard that areas for special focus could
include:
Purpose and Need--NEPA analysis could properly reflect the
purpose of the proposal before the agency, not the
preferences of policy makers or opposition groups.
-- For example, the purpose of a proposed interstate natural
gas pipeline is generally to transport natural gas by pipeline
from one or more regions or interconnections, to specific
market areas or interconnections. This purpose is more specific
than simply meeting the energy needs in a geographic area. Such
a general purpose could theoretically be met by providing oil,
coal, solar, or hydro power, requiring demand reduction, etc.
But none of these is the proposal before the agency, and none
expresses the purpose of the project or reflects the
jurisdiction of the reviewing agency (in this case, FERC).
-- To remain pertinent and useful, would it be beneficial to
ensure that the scope of the NEPA review reflect the project's
purpose?
Alternatives--The alternatives analysis could be tailored
to the purpose of the proposal before the agency, otherwise
it leads to excessive analysis of irrelevant, tangential,
or infeasible projects that are not before the agency for
action.
-- In the example above, solar or hydro power may not be
considered appropriate alternatives to the gas pipeline
project, even if these energy sources are preferred by certain
agencies or groups.
-- I have heard that the breadth of alternatives being
considered has increased to the point where scores of major and
minor route alternatives are put under the microscope for an
interstate gas pipeline project. As a result, NEPA seems to
have evolved into the vehicle to select the route--which is
properly the province of the Natural Gas Act--and to ensure
that it has least environmental impact--which is not NEPA's
charge.
-- The depth of analysis seems to have also increased to the
point where full mapping and resource-by-resource analysis is
often expected for many alternatives, setting up impact
comparisons between alternatives measured in fractions of a
wetland acre, etc. Such broad and intensive analyses require
months of effort and entail enormous costs that may be out of
proportion to the purpose of the alternatives analysis. They
also lead the public to expect a greater degree of control--by
the public and by the agency--over project development than
NEPA affords, fostering litigation and eroding public trust in
the reviewing agencies.
-- Can you please speak to these concerns and whether you
believe if new guidance is needed to tie alternatives, first,
to the purpose and need of the proposed action of the agency
and, second, to a more general level of analysis sufficient to
discern whether an alternative is significantly more or less
burdensome to the environment.
Answer.
Purpose and Need. The law is very clear that the lead agency has
the prerogative to define the purpose and need. There is simply no
suggestion in the law or the CEQ regulations otherwise. 42 U.S.C.
Sec. 4332(d); see also, 40 CFR Sec. Sec. 1501.5, 1506.5. For example,
in the case of a proposed gas pipeline, NEPA analysis for a particular
pipeline would not typically (nor would courts typically) require
analysis of all types of alternative energy sources. However, if, for
example, the Department of Energy decided to develop a national energy
strategy, NEPA compliance for the that policy would need to consider
various competing sources of energy. The key issue is the scale of the
decision to be made.
Courts do recognize that agencies should respect the role of local
and state authorities in the transportation planning process and
appropriately reflect the results of that process in the ``purpose and
need'' statement. North Buckhead Civic Assoc. v. Skinner, 903 F.2d 1533
(11th Cir. 1990). And to enhance coordination with states, when
preparing a joint EIS/EIR, for example, it is prudent to develop a
purpose and need statement that covers both the needs of the Federal
and state agency. Further detail on the purpose and need requirement
can be found in an exchange of letters between the Secretary of the
Department of Transportation and the Chairman of CEQ on this topic,
posted here: https://energy.gov/sites/prod/files/nepapub/
nepa_documents/RedDont/G-CEQ-purpose_need.pdf.
1. I agree that for the NEPA analysis to be pertinent and useful,
the scope of the NEPA analysis should reflect the project's purpose and
need. That is what the law requires now. Normally, the purpose and need
should be articulated by the agency in one or two paragraphs. Far too
often, agencies delegate this job to consultants who are not sure what
the agency really wants to do.
Writing the purpose and need statement should be a government
function. Frankly, I have seen situations where agency leadership
didn't know why an EIS was being done or what decision they were
expected to make at the end of the process. If a senior official in an
agency proposing to do an EIS cannot sit down at the computer and write
a couple of paragraphs (one or two paragraphs is all that is required)
about why the agency is proposing to do something, the agency should
not be initiating the EIS process. This is a management failure, not a
problem with NEPA.
2. NEPA, the regulations and case law are clear that only
reasonable alternatives that meet the purpose and need of the lead
agency must be analyzed.
The NEPA process, in my view, can and should be used in a sensible
manner to improve routing of facilities and activities. Let me briefly
two such examples, both in California:
In the first instance, the Federal Transit Administration and the
Los Angeles County Metropolitan Transportation Authority worked
together to review an 8.5 mile light-rail metro extension serving
southern Los Angeles County communities. Through the NEPA process, a 5-
mile stretch of rarely used existing freight rail line corridor was
identified that could be used instead of building new tracks. The
railroad agreed to abandon the line and allow its use for the light-
rail extension. The decision decreased project costs and time and
reduced environmental disturbances to nearby communities. The project
is currently being constructed.
In the second instance, the U.S. Navy and the National Park Service
worked together on an environmental assessment that identified better
routing for Navy flights over Joshua National Park. The result of the
NEPA process was reduced impacts to visitors and natural and cultural
resources on a route that actually improved training exercises. In the
words of the individual who managed this process for the Navy,
``Because of NEPA, the public and government decision makers were able
to analyze the need for action, compare environmental impacts
associated with alternatives, and bring together organizations and
individuals with competing interests. The draft EA formed a basis for
government officials and the public to exchange ideas and develop a
consensus solution. The end result was a win-win solution for the
National Park Service, the military, the general public, and the
environment.''
The Supreme Court has made it quite clear that NEPA does not
obligate agencies to choose the most environmentally preferable
alternative and lower courts have faithfully followed that holding.
(Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense
Council, 435 U.S. 519 (1978), holding that while NEPA does set forth
significant substantive goals for the Nation, its mandate to the
agencies is essentially procedural--that is, to insure a fully informed
and well-considered decision, not necessarily a decision the judges of
the court of appeals would have reached if they had been the decision
maker.)
In my view, it is neither the law nor the CEQ regulations nor
guidance documents nor case law that is actually driving the large
volume EISs that are the subject of so much concern. Rather, it is lack
of good management of the NEPA process. Indeed, courts have expressed
more concern about lengthy documents than about brevity. Judges don't
want to read thousands of pages any more than anyone else. What they--
and agency decision makers--should be looking for is actual analysis of
potential impacts, not pages and pages of material with little
relevance to the decision. That is why CEQ's regulations already have
page limits of 150-300 pages for the main body of an EIS. 40 CFR
Sec. 1502.27. Again, the problem is not the law or the regulations;
rather, it's lack of trained staff within the agencies and overuse of
contractors, many of whom get insufficient guidance from their client
agencies.
______
The Chairman. Thank you.
Mr. Howard.
STATEMENT OF PHILIP K. HOWARD, CHAIRMAN, COMMON GOOD, NEW YORK,
NEW YORK
Mr. Howard. Thank you, Chairman Bishop, Ranking Member
Grijalva, and other members of the Committee. Thank you for
having me here.
I am the Chair of Common Good, which is a not-for-profit
that has been looking at how we can expedite the rebuilding of
America's decrepit infrastructure. The context of this hearing
is that America is living on infrastructure built 50 to 100
years ago, leaking trillions of gallons of water, wasting vast
amounts of electricity in a rickety grid, and so forth.
The past 3 years we have written white papers with the help
of former environmental officials from both parties, convened
public forums, including senior officials and former
Secretaries of Transportation from both parties, and there is
broad agreement in the need to expedite the entire process by
which infrastructure gets approved, including the environmental
process.
There is also broad agreement that NEPA is an
extraordinarily important statute, and probably should be made
more effective, not less effective. It is a procedural step
that prevents rash decisions on alterations that might have
impact for a century or more. It is very important to have a
pause, to have the facts, to look at the alternatives, so that
the political leaders can make a decision about whether the
right balance, as the statute says, between population and
resources be met.
Under the regulations on the Council on Environmental
Quality, environmental reviews, even from the largest projects,
are not supposed to be more than 300 pages, and it should never
last more than a year. You would be hard to find an
environmental review that was that short on a large project, or
one that did not take years.
NEPA has evolved into something that no one intended.
Instead of highlighting material issues and alterations, it
obscures the important facts in mountains of detail. It has
become an academic exercise of no pebble left unturned. Much of
the information is useless in the particular project. Requiring
traffic studies on the replacement for the Tappan Zee Bridge or
raising the roadway of the Bayonne Bridge makes no sense
because the traffic is not changing. There is no impact to the
traffic, so why do they have an extensive traffic study?
Instead of encouraging public input--actually, I think NEPA
should do more to encourage public input, it has become an
exercise available only to the insiders, many of which do not
have the common good in mind. They are professionals who work
for a particular advocacy group seeking a particular goal, many
of which I agree with, but it is not accessible, a 5,000-page
report is not accessible, to a member of the public. They will
never have enough time to study a 5,000-page report. The
density of these reports is driven by fear of litigation,
because at the end of any project, someone who doesn't like it
will sue, claiming that some detail is not accurate.
The process takes years, an average of 4.6 years for large
projects. And then, on top of that, there is permitting.
In the case of raising the roadway of the Bayonne Bridge
into Newark Harbor, a project with almost no environmental
impact, because it uses the same foundations and the same
right-of-way, it took 6 months to get a Federal agency to agree
to be the lead agency. Then it took another year of meetings to
get the scoping of the environmental review correct. This is a
project that had an environmental assessment, which is
supposedly a short-form environmental review. The review itself
was 10,000 pages long, plus another 10,000 pages of appendices
for a project using the same foundation and right-of-way.
The bottom line is that environmental review for large
projects is now, typically, dramatically harmful to the
environment. It is harmful to the environment because it
prolongs bottlenecks that could be fixed in a matter of a year,
or 2 or 3. Instead, they are not fixed for 6 or 7 years. We
quantify those costs in our report, ``Two Years, Not Ten
Years,'' and it also, combined with permitting delays, often
doubles the cost to taxpayers, typically, of large projects.
The solution, in my view, and we have proposed legislation,
is to create clear lines of authority. So, among other things,
the Chairman of CEQ has authority to decide issues on the scope
and adequacy of review. Still has to comply with NEPA, but can
say, in the case of the Bayonne Bridge, for example, ``Oh, you
are using the same foundations and right-of-way? Give me 50
pages on construction impacts.''
Thank you very much.
[The prepared statement of Mr. Howard follows:]
Prepared Statement of Philip K. Howard, Chair of Common Good, New York,
New York
Chairman Bishop, Ranking Member Grijalva, and members of the
Committee, thank you for inviting me to testify before the Committee
today about the need to modernize environmental review.
America is living on infrastructure built 50-100 years ago. Aging
roads, fragile power grids, inefficient ports, and an antiquated air
traffic system hamper America's ability to compete. Traffic
bottlenecks, leaking pipes, waste overflows, and dirty power generation
cause unnecessary pollution. Unsafe roads cause thousands of accidents
each year.
The upside of modernizing America's decrepit infrastructure is as
rosy as the current situation is dire. An infrastructure initiative
will provide upwards of 2 million high-paying construction-related
jobs, and provide a 21st century platform to enhance America's
competitiveness. Not rebuilding infrastructure runs irresponsible
risks. One failure at a critical transit chokepoint--for example, the
two century-old rail tunnels under the Hudson River that were damaged
by Superstorm Sandy \1\--could paralyze an entire region.
---------------------------------------------------------------------------
\1\ See, e.g., Philip K. Howard, ``Billions for Red Tape: Focusing
on the Approval Process for the Gateway Rail Tunnel Project,'' Common
Good, May 2016.
---------------------------------------------------------------------------
Rebuilding America's infrastructure requires Congress to do two
things: Provide funding and create clear lines of authority to give
permits. Congress provided money in 2009 as part of the $800 billion
stimulus, but did not give the executive branch the authority to issue
permits on a timely basis. Because ``there's no such thing as shovel-
ready projects,'' as President Obama put it,\2\ the Administration
ended up spending only 3.6 percent of the stimulus money on
transportation-related infrastructure.\3\
---------------------------------------------------------------------------
\2\ Michael D. Shear, ``Obama Lesson: `Shovel Ready' Not So
Ready,'' New York Times, October 15, 2010.
\3\ Executive Office of the President, Council of Economic
Advisers, ``The Economic Impact of the American Recovery and
Reinvestment Act Five Years Later,'' February 2014, p. 34.
---------------------------------------------------------------------------
My testimony today will focus on one element of permitting--
environmental review under the National Environmental Policy Act
(NEPA). Environmental review should be a vital tool in enhancing public
input and improving the quality of projects. Instead, environmental
review has become a bureaucratic swamp that bogs down vital projects
and a potentially lethal weapon in the hands of anyone who opposes a
project.
The effect, paradoxically, is that environmental review often harms
the environment. Lengthy environmental reviews typically prolong
bottlenecks and other inefficiencies which cause pollution. A 2015
report by the group I chair, Two Years, Not Ten Years, quantified these
and other permitting costs for different categories of infrastructure
delays. For example, a 6-year delay in rebuilding our Nation's
crumbling highway infrastructure would release an extra 51 million tons
of CO2 emissions. America's antiquated power grid wastes an
amount of electricity equivalent to the output of 200 coal-burning
power plants.\4\
---------------------------------------------------------------------------
\4\ Philip K. Howard, ``Two Years, Not Ten Years: Redesigning
Infrastructure Approvals,'' Common Good, September 2015.
---------------------------------------------------------------------------
Overall, we also found that a 6-year delay more than doubles the
effective cost of projects (including increased overhead and
construction costs, lost economic opportunities, and the environmental
costs of prolonged inefficiencies).
The core flaw in America's review and permitting process is that
there are no clear lines of authority to make needed decisions to
adhere to timetables, including to resolve disputes among bickering
agencies or project opponents. At any step along the way, a project can
get bogged down in the balkanized bureaucracy. The project to raise the
roadway of the Bayonne Bridge required 47 permits from 19 different
Federal, state, and local agencies. With multiple decision makers, even
preliminary decisions can take years. With the Bayonne Bridge, it took
6 months to pick the lead agency for environmental review and another
year to agree on the scope of review. The Bayonne Bridge construction
had virtually no environmental impact--it used the same right of way
and foundations as the old bridge--but the final environmental
assessment ran 10,000 pages, with another 10,000 pages of
appendices.\5\
---------------------------------------------------------------------------
\5\ See, e.g., ibid, and Sam Roberts, ``High Above the Water, but
Awash in Red Tape,'' New York Times, January 2, 2014.
---------------------------------------------------------------------------
No one deliberately designed this review and permitting process. It
serves no legitimate public interest, and, by delaying modernization of
infrastructure, actively harms the environment. Nor do multi-thousand-
page environmental reviews enhance transparency of important issues;
lengthy reviews obscure them in a jungle of trivial detail.
Congress in recent years has improved the process at the margin by
creating committees to resolve disputes, shortening the statute of
limitations, allowing some state-level processes to fulfill Federal
requirements, and improving transparency via the Permitting Dashboard.
What's needed, however, is a simple hierarchy, where designated
officials take responsibility to make needed decisions at each step
without months of delay. I attach here three pages of amendments that
create clear lines of authority to make decisions needed to adhere to
reasonable schedules. The effect will be to reduce the effective cost
of infrastructure by half and to create a greener footprint.
the distortion of nepa
The 1970 National Environmental Policy Act was a landmark statute
requiring that federally-funded projects review potential environmental
impacts and consider alternatives before breaking ground. NEPA requires
agencies to undertake an assessment of the environmental effects of
their proposed actions so that they can strive to ``achieve a balance
between population and resource use.'' \6\ NEPA is a tool for
thoughtful process and democratic accountability, not a substantive
requirement for environmentally correct decisions.
---------------------------------------------------------------------------
\6\ 42 U.S.C. Sec. 4331.
---------------------------------------------------------------------------
NEPA is supposed to provide the public with disclosure of major
impacts, not dense academic analyses. One historian reports that
``[t]he earliest [environmental impact statements (EISs)] were less
than 10 typewritten pages in length. They were submitted to the
Congress and went unchallenged.'' \7\ The current regulations of the
Council of Environmental Quality (CEQ), created to oversee NEPA, say
that an EIS should generally be no more than 150 pages, and no more
than 300 pages for complex projects.\8\
---------------------------------------------------------------------------
\7\ Daniel A. Dreyfus, ``NEPA: The Original Intent of the Law,''
Journal of Professional Issues in Engineering Education and Practice
109, no. 4 (1983), pp. 252-3.
\8\ 40 CFR Sec. 1502.7.
---------------------------------------------------------------------------
NEPA has rightly been called ``the Magna Carta of environmental
law,'' \9\ and 160 nations have adopted similar frameworks for
environmental analysis of government-backed projects since its
inception. Other greener countries such as Germany, however, conduct
their environmental reviews in months, not years.
---------------------------------------------------------------------------
\9\ See, e.g., Daniel R. Mandelker, ``The National Environmental
Policy Act: A Review of Its Experience and Problems,'' Washington
University Journal of Law & Policy 32 (2010), p. 293.
---------------------------------------------------------------------------
What happened in America is that NEPA diverged from its original
goal of public transparency to being an implied mandate for perfect
projects. But there is no such thing as a perfect project. Every
infrastructure project has an environmental cost--a desalination plant
has a briny byproduct, a new power line or wind farm mars natural
views, a new highway exit or intermodal facility will disrupt a
neighborhood. Wringing our hands for years over these effects does not
make these effects disappear; it just postpones the benefits of the
projects while making them more expensive.
NEPA provided no private right of action. But activist courts in
the 1970s implied a right of action, and lawsuits over environmental
review statements became surrogates for questioning the wisdom and
design of projects.
In effect, NEPA litigation transferred power from democratically-
elected officials to project opponents and courts. For example, the
environmentally-beneficial Cape Wind offshore wind farm project has
faced numerous NIMBY lawsuits since its NEPA process began in 2001 as
wealthy beachfront property owners use lawsuits to try to kill the
project and protect their ocean views.
Lawsuits over environmental disclosures triggered a downward spiral
of ever-denser detail--a process of no pebble left unturned. Former EPA
general counsel E. Donald Elliott estimates that 90 percent of detail
in Federal impact statements is there not because it's actually useful
to the public or decision makers, but because it might help in the
inevitable litigation--a form of environmental ``defensive medicine.''
At this point, environmental review has taken a life of its own,
often unrelated to any meaningful public purpose. The environmental
impact statement for the new Mario Cuomo Bridge (replacing the aging
Tappan Zee Bridge over the Hudson River) spent over 300 pages
describing the methodology used in the rest of the statement. It also
included detailed traffic studies despite the fact that the new bridge
would not meaningfully alter traffic patterns relative to the old
bridge.\10\
---------------------------------------------------------------------------
\10\ See Department of Transportation, Federal Highway
Administration, ``Tappan Zee Hudson River Crossing Project Final
Environmental Impact Statement,'' July 2012, and Philip Mark Plotch,
``Politics Across the Hudson: The Tappan Zee Megaproject'' (Rutgers
University Press, 2015).
---------------------------------------------------------------------------
Fear of litigation skews decision making toward mollifying the
squeaky wheel. For instance, labor unions sometimes ``greenmail''
projects, burying them in environmental lawsuits until project
proponents agree to labor demands. Striving for consensus means that
delays can go on for years, often decades. A plan to plug a quarter-
mile gap in a Missouri levee has been studied seven times since it was
originally proposed, with no resolution in site.\11\
---------------------------------------------------------------------------
\11\ Barry Meier, ``Trump Wants More Big Infrastructure Projects.
The Obstacles Can Be Big, Too.'' New York Times, November 18, 2017.
---------------------------------------------------------------------------
At this point, environmental review is often a weapon for opponents
to demand changes or other concessions that undermine the common good.
The public harm includes dramatically higher costs and delayed
environmental benefits. The uncertainty over timing keeps many projects
on the drawing board, and has been a kind of poison pill deterring
private capital from committing to infrastructure investment.
fixing nepa by returning to its original purpose
The solution is to return to the original purpose of NEPA--to
provide a short and plain statement of material impacts of projects.
Congress can achieve this by enacting provisions that allocate
authority to designated officials, and restating a few basic principles
that will serve as a course correction to officials and courts.
Specifically, Congress could enact a statute along the lines of what I
attach here providing that:
1. Permitting processes should take no longer than 2 years, and
authority should be given to designated officials and
courts to allow them to enforce that schedule.
2. The Chair of CEQ should have the authority, consistent with the
mandate of NEPA, to decide all issues relating to the scope
and adequacy of environmental review. For the Bayonne
Bridge project, for example, the review could have
consisted of 50 pages on construction impacts, not 20,000
pages. The CEQ Chair will not have to decide most issues--
just the availability of a common-sense decision will give
backbone to officials down the line to resist absurd
detail.
3. Courts should only have authority to review EISs for mis-
statements or omissions which have a material environmental
impact, and must do so within an accelerated litigation
timetable.
4. The Chair of CEQ should be authorized to accelerate permitting
where projects have a net positive environmental impact or
where sponsors solicit meaningful public participation
before the project is fully developed. Public input
generally improves projects, but is needed in the planning
process, not after the project design is set in stone.
5. For projects of interstate significance, state and local reviews
and permits should be pre-empted if they delay approval
beyond the Federal timetable. This is comparable to FERC
provisions for gas pipelines.
6. Finally, an official designated by the President should have
authority to resolve disagreements among Federal agencies.
conclusion
Rebuilding America's decrepit infrastructure is a goal shared by
most Americans. Streamlining permitting is good government, not bad
government. Raising money to modernize infrastructure is a good
investment, not government waste. This could be the impetus for
bipartisan agreement in Congress. If Democrats agree to cut red tape
and modernize NEPA, Republicans agree to unlock funding sources.
*****
ATTACHMENT
Accelerate Infrastructure Permitting
March 2017
Permitting for infrastructure projects can take a decade or more.
Multiple agencies oversee the process, with no clear lines of
authority. Once permits are granted, lawsuits can last years more.
These delays are costly and, often, environmentally destructive.
To eliminate unnecessary delays, we must give officials authority to
enforce deadlines and resolve lawsuits in expedited proceedings. To
accomplish these goals, we recommend amending the FAST Act with the
following provisions:
1. Except in unusual circumstances, decisions to approve
infrastructure projects are made in less than two years.
2. The Chairman of the Council on Environmental Quality (CEQ) has
authority to resolve all disputes regarding the scope and
adequacy of environmental review pursuant to NEPA.
3. CEQ has the authority to grant a fast track one-year review for
those projects that were developed with significant
consultation with stakeholders and that demonstrate net
environmental benefits.
4. The Director of the Office of Management and Budget has authority
to resolve inter-agency disputes.
5. If state and local permits are delayed past issuance of Federal
permits, the Chief Permitting Officer is authorized to
grant final permits for projects of interstate or national
significance.
6. Judicial review is limited to the question of whether the initial
review failed to disclose material impacts and practical
alternatives.
These changes will substantially improve review timetables and reduce
construction costs while maintaining strong environmental protections
for federal infrastructure projects. Here is the text of the bill to
accomplish these amendments, which we call the Get America Building Act
of 2017.
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
*****
Common Good (www.CommonGood.org) is a nonpartisan reform coalition that
proposes simplified regulatory and legal structures to empower
officials to use common sense and meet deadlines. Common Good's report
``Two Years, Not Ten Years: Redesigning Infrastructure Approvals''
details the costs of delaying infrastructure permits. In August 2016,
Common Good launched ``Who's in Charge Around Here?,'' a national
bipartisan campaign to build support for simplifying government. The
Co-Chairs of the campaign are Bill Bradley and Philip Howard, with
support from, among others, Mitch Daniels, Tom Kean, and Al Simpson.
Learn more at www.SimplifyGov.org.
This proposed bill was developed with the assistance of Covington &
Burling LLP, pro bono counsel to Common Good's infrastructure red tape
project.
______
Questions Submitted for the Record to Mr. Philip Howard, Chairman,
Common Good
Questions Submitted by Rep. Costa
Topic 1: NEPA Delegation Authority
Question 1. Some states have enacted state level public disclosure
laws similar to NEPA whose standards meet or even exceed NEPA's
requirements.
For instance, in 1970 my home state enacted the California
Environmental Quality Act, which actually mandates that environmental
mitigation be performed if an action has an impact on the environment.
Unfortunately, in many instances, analysis under CEQA does not meet the
statutory requirements of NEPA, leading to duplicative work and delayed
project delivery.
I've heard that this is especially problematic for projects where
CEQA analysis and review has already been completed and as a result of
a Federal agency interaction either through a required permit or a
Federal funding agreement, an environmental review process under NEPA
is required. In fact, I've heard of some instances where local agencies
have rejected Federal funding because the delay to complete NEPA,
despite already having completed CEQA, would result in a greater
project cost.
This is simply unacceptable.
As you've mentioned, Congress has taken some steps to streamline
these analyses, specifically for highway projects. This could prove
beneficial to streamline projects in many congressional districts and
specifically for those projects in California, like the Atwater-Merced
Expressway that's needed to redevelop Castle Air Field or the
California High-Speed Rail project.
1a. Do you think that there are benefits to allowing projects in
states that have equally stringent environmental disclosure laws as
NEPA to move forward under a single environmental analysis?
1b. Is it reasonable for Congress to explore additional ways in
which NEPA delegation authority can be extended to the states?
1c. In your opinion, what sorts of agency actions lend themselves
to enhanced delegation authority? For instance, Reclamation projects,
FERC projects, or projects with Federal grant funds disseminated?
1d. If it is beneficial, is further action by Congress necessary to
move forward to expand delegation authority?
Answer.
1a. Yes. There are already some procedures in place to allow for
state-level review documents to be adopted in whole or in part during
NEPA review, and to the extent practicable this practice should be
expanded. It makes no sense to duplicate review between state and
Federal actors.
1b. Yes, particularly for projects that mainly impact state and
local rather than regional interests. That's how Germany divides review
authority to ensure minimal duplication of effort.
1c. Projects with primarily a state or local effect should enjoy
this type of delegation; those with broader effects should have review
run by the Federal Government. However, even in situations in which the
state is running review under delegated Federal authority, the Federal
Government still has a legitimate oversight interest, to ensure that
local procedures do not impose undue costs or delays.
1d. Yes, and Congress should explicitly authorize CEQ to delegate
this authority where appropriate. As noted above, delegation procedures
have already been incorporated in previous transportation bills, but
should be expanded to encompass all infrastructure sectors and should
be explicitly housed in CEQ.
Topic 2: FAST Act Streamlining Provision Implementation
Question 2. I have heard concerns from many infrastructure project
stakeholders that too much time is required to complete all of the
environmental reviews under NEPA (i.e., environmental assessments (EA)
and environmental impact statements (EIS). The U.S. Department of
Energy reported that the average completion time for an EIS in 2015 was
4.1 years, and the average cost was $4.2 million. A 2014 GAO report
found that the average completion time for an EIS in 2012 was 4.6 years
from the notice of intent to prepare an EIS through the issuance of the
record of decision. I have heard that these figures may underestimate
both time and costs. Available data from Federal agencies generally do
not account for costs beyond third-party contractor fees, including a
project applicant's data-development costs. The time estimates do not
include the work that precedes the decision to prepare an EIS or the
cost of defending them in court. I have heard other comments that
expediting reviews could lead to potential litigation which could
account for longer project delays beyond those that would have occurred
using a more slow and steadfast approach under NEPA.
Specific to infrastructure, there are NEPA streamlining reforms in
the FAST Act already. With the FAST Act, Congress and the Obama
administration sought to improve on past attempts to streamline the
NEPA process by coordinating and expediting NEPA review across a
broader range of agencies and industry sectors. The Act establishes a
Federal Permitting Improvement Council (the Council), composed of
officials from CEQ, OMB, and 13 other Federal agencies, to coordinate
this streamlining effort. The range of projects covered by the FAST Act
includes: ``renewable or conventional energy production, electricity
transmission, surface transportation, aviation, ports and waterways,
water resource projects, broadband, pipelines, [and] manufacturing.''
In addition, the Council has the authority to designate projects in
other industry sectors by majority vote.
To trigger the FAST Act, a project must be subject to NEPA; be
likely to cost more than $200 million; and either: (1) not qualify for
abbreviated environmental-review processes under any applicable law, or
(2) because of its size and complexity, would likely benefit from
enhanced coordination. Important aspects of Title XLI of the FAST Act
include:
Coordinated Project Plans. The plans will identify the
lead agency and cooperating agencies and set out a
permitting timeline. The lead agency is to develop the
permitting timetable in consultation with the cooperating
agencies and the applicant.
Permitting Dashboard. An expanded online database will
track the status of Federal NEPA reviews for each covered
project. The lead agency must post information, including
the permitting timetable, status of compliance for each
participating agency, and any memoranda of understanding
between the agencies.
In summary, the FAST Act already contains NEPA streamlining
language for infrastructure projects. There seems to be little data on
whether or not these provisions have been implemented or whether they
are working to accelerate project delivery in a way that is consistent
with the public disclosure requirements and alternatives analysis
required by NEPA.
2a. Is there information available about whether the existing
streamlining provisions have been fully implemented and what effect, if
any, they have had on project delivery timelines?
2b. If this information were available, would it assist Congress in
making any policy changes necessary to implement NEPA more effectively?
2c. If this information is not available, how would you recommend
this information be acquired and presented to Congress?
Answer.
2a. We are in the process of determining this now.
2b. Yes, however, there are a number of innovations that the FAST
Act did not address. For instance, there must be clear lines of
authority to set timetables and resolve disputes.
2c. Relevant CEQ and DOT staff would be best equipped to begin
answering this question, and we plan on meeting with them soon to
discuss this issue.
Topic 3: Local Development Experience
Question 3. Recently approved by all permitting agencies last June/
July was a major ``new town'' project in my district that is designed
for roughly 5,000 new residences, 3 million square feet of commercial
and light industrial development, two new public schools, parks,
trails, environmentally sensitive conserved lands, and various other
related features. That project is now under construction.
The U.S. Army Corps of Engineers and the U.S. Bureau of Reclamation
were key permitting agencies for this project, and NEPA compliance by
these agencies played a major role. Fortunately for this project, both
the Corps and Reclamation ended up working well together to resolve a
wide variety of issues, including some tricky NEPA compliance issues.
Other projects, I am told, have not fared so well.
However, with the benefit of 20/20 hindsight on this project, there
are at least two areas where I am told we could be doing better:
Need for a single lead agency for NEPA compliance. Many
projects, including the project in my district, require
permits from two or more Federal agencies. Although the
NEPA regulations contemplate a lead Federal agency for
purposes of NEPA compliance, it is too often the case that
Federal agencies work inefficiently with each other on NEPA
compliance issues, leading to time-consuming delays and
multiple meetings that can sometimes span weeks and even
months.
I believe that the NEPA regulations could be strengthened in that
regard with the intent of squarely assigning the
responsibility of NEPA compliance in one Federal agency for
all the Federal agencies that might be involved on a
particular project.
In my home state of California, our NEPA equivalent--CEQA--is an
excellent model for how this notion of a single ``lead''
Federal agency can work well.
Scope of analysis. Closely related to the idea of a
``single lead agency'' for each project is the importance
of defining a suitably encompassing ``scope of analysis''
for purposes of NEPA review. This is particularly important
for purposes of Section 7 consultation under the Endangered
Species Act.
If the ``lead'' Federal permitting agency defines its NEPA
``scope of analysis'' to only include the area of its
particular permitting jurisdiction, then the other Federal
permitting agencies for that same project may have no
choice but to prepare their own separate NEPA analysis if
their permitting jurisdiction does not coincide with that
of the ``lead'' agency.
For the project in my district, resolution of this particular
issue took months longer than it needed to, and further
clarity is needed for future projects. At base, there
should be a single ``lead'' Federal agency with a project-
specific ``scope of analysis'' that encompasses all Federal
permitting issues, not just those of the ``lead'' agency.
3a. I have heard from constituents that the 6-year statute of
limitations applicable to NEPA claims is too long. It creates too much
uncertainty and can be a sticking point with the project finance
community. Six years is too long to know whether an approved project is
going to become the subject of litigation alleging NEPA non-compliance.
The comparable statute of limitations under CEQA is 30 days.
What are your views on the idea of new legislation to shorten the
NEPA statute of limitations?
3b. Under NEPA, ``alternatives'' to the proposed project that must
be assessed in an environmental impact statement (EIS) are, according
to some Federal agencies and some courts, supposed to be reviewed at
the same level of detail as the proposed project. This project-level
review of the alternatives can be quite burdensome, difficult or
impossible to undertake (e.g., how can a bio analysis be undertaken at
an alternative site that is owned by someone else?), and ultimately, of
little value to the ultimate analysis.
What are your views on the possibility or need for new NEPA
regulations to better and more efficiently focus the ``alternatives
analysis'' component of NEPA review?
3c. Under NEPA, each Federal agency is authorized to develop its
own list of ``categorical exclusions'' that is intended to be a list of
activities that are determined to be so relatively minor in their
potential for environmental impacts as to excuse the need for further
NEPA analysis. It seems like a good concept, but I wonder if there are
improvements that could be made. In the interests of streamlining NEPA
review across all Federal agencies, there may be merit in issuing new
regulations that list categorical exclusions that are common to all
Federal agencies (e.g., ``minor construction''), thereby reducing the
possibility for inconsistent treatment of the same issue by different
agencies. These common categorical exclusions could be in addition to
the agency-specific ``CatEx's'' that are already in existence.
What are your views on the possibility of streamlining the CatEx
process by issuing new regulations that create categorical exclusions
that are common to all Federal agencies, perhaps in addition to the
agency-specific CatEx's that already exist?
Answer.
3a. The FAST Act shortened the statute of limitations (SOL) for
certain transportation projects, but this should be applied to all
NEPA-related challenges. It is absurd that a disclosure statute should
have a 6-year SOL. The SOL should be 30-60 days, and court review
should be fast-tracked, as in preliminary injunction decisions.
3b. Here and elsewhere, a rule of reason should be applied to
ensure that review remains relevant to the project at hand. Some
projects legitimately need broad, detailed alternatives analysis; for
others, it's wasteful overkill. There's no hard and fast rule; CEQ
should be empowered to make scoping decisions like this for every
project, on a case-by-case basis.
3c. Because of the difference in missions between the various
agencies, I'm not sure that there's an obvious need for uniformity in
the CatEx process/ However, CEQ should certainly be empowered to draw
those guidelines if they deem it necessary.
Topic 4: Potential Guidance Updates
Question 4. Some stakeholders have indicated that new guidance from
CEQ would help streamline Federal review of infrastructure projects by
clarifying NEPA duties and procedures that are routinely challenged
legally. This is as important for agencies and projects as for the
public and the reviewing courts.
While there are some who believe that the underlying NEPA statute
is largely sufficient, some stakeholders assert that NEPA guidance has
not kept pace with the specific issues and arguments that are now
commonplace. Existing guidance tends to be high-level and conceptual;
effectively leaving it to the courts to discern what is or is not
required by NEPA. I have heard that areas for special focus could
include:
Purpose and Need--NEPA analysis could properly reflect the
purpose of the proposal before the agency, not the
preferences of policy makers or opposition groups.
-- For example, the purpose of a proposed interstate natural
gas pipeline is generally to transport natural gas by pipeline
from one or more regions or interconnections, to specific
market areas or interconnections. This purpose is more specific
than simply meeting the energy needs in a geographic area. Such
a general purpose could theoretically be met by providing oil,
coal, solar, or hydro power, requiring demand reduction, etc.
But none of these is the proposal before the agency, and none
expresses the purpose of the project or reflects the
jurisdiction of the reviewing agency (in this case, FERC).
-- To remain pertinent and useful, would it be beneficial to
ensure that the scope of the NEPA review reflect the project's
purpose?
Alternatives--The alternatives analysis could be tailored
to the purpose of the proposal before the agency, otherwise
it leads to excessive analysis of irrelevant, tangential,
or infeasible projects that are not before the agency for
action.
-- In the example above, solar or hydro power may not be
considered appropriate alternatives to the gas pipeline
project, even if these energy sources are preferred by certain
agencies or groups.
-- I have heard that the breadth of alternatives being
considered has increased to the point where scores of major and
minor route alternatives are put under the microscope for an
interstate gas pipeline project. As a result, NEPA seems to
have evolved into the vehicle to select the route--which is
properly the province of the Natural Gas Act--and to ensure
that it has least environmental impact--which is not NEPA's
charge.
-- The depth of analysis seems to have also increased to the
point where full mapping and resource-by-resource analysis is
often expected for many alternatives, setting up impact
comparisons between alternatives measured in fractions of a
wetland acre, etc. Such broad and intensive analyses require
months of effort and entail enormous costs that may be out of
proportion to the purpose of the alternatives analysis. They
also lead the public to expect a greater degree of control--by
the public and by the agency--over project development than
NEPA affords, fostering litigation and eroding public trust in
the reviewing agencies.
-- Can you please speak to these concerns and whether you
believe if new guidance is needed to tie alternatives, first,
to the purpose and need of the proposed action of the agency
and, second, to a more general level of analysis sufficient to
discern whether an alternative is significantly more or less
burdensome to the environment.
Answer.
Purpose and Need: The scope of NEPA review is supposed to reflect
the purpose and the effect of the project. Some projects with narrow
purposes will have broad effects. Public policy choices require
balancing effects and purposes, and NEPA was passed to ensure that the
public and decision makers were able to make informed choices.
Alternatives: New guidance is needed to apply a rule of reason
standard to the scope and timetable of environmental review. The first
part of any analysis should be a judgment--by the sponsor and CEQ--
about whether the time and effort spent on environmental review might
be harmful to the environment. A version of the Hippocratic Oath must
be applied to environmental review. ``First, do no harm.''
Please let me know if you or other members of the Committee have
additional questions, or if you would like additional information. And
thank you again for the opportunity to participate in this important
discussion.
______
The Chairman. Thank you very much. By the rules that we
have on our Committee, questions from the Committee members are
limited to 5 minutes.
I am also going to have to leave early on in this hearing,
so I am going to apologize ahead of time. That is why I came
early, so I can leave early. But I apologize. I am not trying
to walk out because I don't think the significance of what you
are saying is here. It is extremely significant. It is just I
am being rude and I am going to walk out. Because of that, let
me start with some questions by myself, if I could.
Mr. Howard, let me start with you. One of the things you
talked about in your testimony, is simply the fact that the
goals of NEPA, as it started, have changed. And some of that
has changed simply because of litigation. Is the goal of NEPA
that was passed a half-century ago the same goal that we see
today within the agencies who are administering it?
Mr. Howard. Excuse me?
The Chairman. The goals of NEPA, have they changed over the
last 50 years?
Mr. Howard. I don't think the goals have changed. I think
the goal of public review remains as valid as it was 50 years
ago, perhaps even more valid.
We would encourage public input in advance, instead of
after, but what has happened is the practice has changed, so
that the goals have been subverted by a process that takes
years and ends up interfering with important projects, instead
of promoting better projects.
The Chairman. Has litigation played a portion of that
change in the process of administering this law?
Mr. Howard. Undoubtedly. The fear of litigation, according
to former EPA General Counsel E. Donald Elliott, probably
accounts for 90 percent of the extra detail. People are scared.
It is a form of defensive medicine.
People are scared that someone might sue if you don't talk
about the traffic study for the Tappan Zee Bridge. It might
change 1 percent, and they will sue that you did not do that
study. So, then you get months doing a study that makes no
sense.
The Chairman. You had an interesting statement that you
made in there, saying that we are harming the environment by
the way we are dragging out these things. Do you want to go
through that?
How can I convince other people the way we are defending
the status quo right now actually can harm the environment?
Mr. Howard. Well, I would encourage you to talk to leading
transportation officials from the prior Democratic
administration on the projects that are important for the
environment and what is holding them up.
Former Deputy Secretary John Porcari, for example, is
someone who has spoken eloquently about how delay is harmful to
the environment. We were involved in trying to expedite the
projects for the gateway tunnel going into New York. The delay
in that process dramatically increased the risk that the
decrepit existing 100-year-old tunnels would close down. If
they close down, which they do in a way that cannot be
predicted, there is a 25-mile gridlock, which causes enormous
pollution, as well as disruption of the economy.
The transportation grid, the highway bottlenecks, the rail
bottlenecks, the water mains that leak, all of those things are
happening, and they are delayed because of the----
The Chairman. So, the reality is certainly in contrast to
what the goal and the intent, as noble as it was, was.
Mr. Howard. Completely.
The Chairman. Mr. Willox, can I ask you a simple question?
We have heard part of the process is we don't have enough
staff. How could counties like yours assist the Federal
agencies to move the review process efficiently?
Mr. Willox. Well, Mr. Chairman, as I indicated, I think it
is important that counties get engaged early and often in the
process. That does require a commitment on the counties.
But even when the project is being proposed, before it is
right in that formal setting, if we can be engaged early, we
can help provide some of the social economic data that is
important, some of the understanding of the local community and
environment. So, early involvement would be definitely
beneficial.
The Chairman. Early in your testimony, you talked about
consultation and coordination with local officials. That is
happening at a haphazard level right now. Would it be helpful
if we actually defined what would take place, and insist that
local officials have to be part of this process?
Mr. Willox. Mr. Chairman, I do think that would be helpful.
Coordination is already part of the law, but it is implemented
differently by different field offices and different directors.
It does require a commitment on the local government officials,
but I think the outcome would be better if that was more
uniformly instigated at the local level.
The Chairman. I would hope we could actually codify that in
some way, so agencies know what they are and are not supposed
to do.
Mr. Bridges, I just have one simple question for you. You
mentioned some of the people who turn up at hearings, and some
of the testimony becomes more circus than it is reality. Are
you telling me that sometimes our hearing process and our
comment periods, they are really silly and useless?
Mr. Bridges. It seems to be. They can be pretty interesting
at times. And they are given a lot of latitude to just come in,
and I was probably understating some of the stuff I have seen.
For people that are protesting the projects, it is really
emotion-based, and not a lot of fact-based. And there isn't any
fact-checking with anything for the most part. They are just
allowed to do their thing. And when I go there to do what I do,
and our other people go to support the project, it is kind of
intimidating. So, it is really hard for us to, even though we
do----
The Chairman. All right, thank you. I am over my time. I
apologize. It was my fault for asking the question so close to
the end of it.
I warned you guys about doing that, so don't do what I just
did ever, ever.
[Laughter.]
The Chairman. I also want to have unanimous consent to
place in the record an Op-Ed by Cass Sunstein, who actually
commends the Trump administration for some of their Executive
Orders in an attempt to try to streamline this process that we
are talking about here.
Without objection, that will be so ordered.
Mr. Grijalva, you are up.
Mr. Grijalva. I was going to defer to Ms. Tsongas.
The Chairman. Ms. Tsongas, you are up, then.
Ms. Tsongas. Thank you, Mr. Chairman, and thank you to our
witnesses for being here today.
As you all know, the National Environmental Policy Act is
one of our Nation's bedrock environmental laws, and I was
grateful to hear our Chairman say that, as well. Crafted on a
bipartisan basis by Congress and signed into law by President
Nixon, NEPA has informed Federal decision making and increased
transparency for over 40 years.
To put it simply, NEPA makes sure that we ``look before we
leap,'' and are using taxpayer dollars wisely. NEPA is also one
of the primary ways through which the public is able to
participate in the Federal decision-making process, fulfilling
the fundamental right of American citizens to have a voice
regarding a proposed Federal project.
We saw the benefits of this public input process in my own
district several years ago during a major Federal highway
project. Thanks to the NEPA process, the project improved
nearby wetlands and led to the construction of noise barriers
to mitigate impacts on neighbors. The public comments that were
submitted by my constituents demonstrate the immense popularity
and benefits of the public review process, which would not have
been possible without NEPA.
For example, a local trucking company submitted comments
saying, ``All the neighborhood residents, the commercial
businesses, homeowners, and general public have been invited to
each meeting and hearing. All comments are welcomed. Everyone
in attendance feels that they have had a say in the development
of this project.''
Another resident wrote, ``The project team has been
excellent to work with. They have done an outstanding job of
listening to the residents of Mathuen and, whenever possible,
take local input.''
Even residents who could have been negatively impacted came
around to support the project, thanks to the NEPA public
outreach process. ``Although our land will be impacted, and the
state will be taking some of it, we definitely support the
project. We believe this project is necessary for the improved
safety of everyone at the intersection, and for the economic
development of the community. The engineers and architects for
this project have done an excellent job listening to the
community and modifying the plans whenever practical.''
All these examples from my district show that NEPA ensures
that all citizens have a right to participate in the decision-
making process, and it ultimately improves the likelihood of
long-term success and public support. And I have seen the
benefit of this highway project, as it has gone forward in the
ways in which the community has rallied around it.
Ms. Bear, as has been referenced, the vast majority of NEPA
projects do not require a significant environmental impact
statement. Ninety-five percent of all NEPA reviews are
completed in just a few days. Just 1 percent of projects
require a more comprehensive environmental impact statement.
Can you describe your experience with those 1 percent of
projects that do require a longer environmental review? In
these cases, why is it so important that we take a hard look at
a project's potential impacts?
Ms. Bear. Well, the easy answer is because those are the
proposed actions that are going to have significant
environmental impacts, as the threshold for doing an
environmental impact statement. And those impacts may last for
a very long time.
In terms of what I have seen in the context of EIS
preparation, yes, I have seen some delays that are unfortunate,
and some problems that have been alluded to here.
I have also seen some very positive developments. You
mentioned the enthusiasm of private citizens, which I have
found was the most gratifying part of my work. And one of the
most exciting developments in NEPA over the past decade,
decade-and-a-half, I think, is citizens who have come together
in various coalitions, not just one group, but maybe ranchers,
counties, small businesses, public interest groups, a variety
of people, tribes, and developed a comprehensive alternative
and presented it to the agency, and had that reviewed in the
EIS, once in a while chosen, either in whole or in part.
To me, that is really democracy in action, where they are
really contributing the alternatives to their agencies, to
their government. So, that has been very gratifying, to see
that development.
Ms. Tsongas. I thank you for that. One of the issues we
have had--I want to see how much time, oh, I don't have enough
time to go through this. Thank you for your testimony.
Mr. Gohmert [presiding]. Thank you. At this time, the Chair
recognizes the gentleman from Colorado, Mr. Lamborn, for 5
minutes.
Mr. Lamborn. I want to thank the Chairman, first of all,
for having this hearing on such an important issue. NEPA is a
policy that directly impacts an entire scope of this Committee,
and that is why our Committee has primary jurisdiction over it.
It should be obvious to any observer that, despite the good
intentions behind the original passage of NEPA, it has now
become, in many cases, nothing more than a weapon to stop or
delay any kind of development, even development that is vital
to creating jobs and giving us a higher standard of living. And
when you look around the world and you see countries that have
more prosperity, they have a better environment, they can
afford to clean up the environment. I believe, if you want a
clean environment, you should allow development to go forward.
Mr. Howard and Mr. Bridges, one thing that we try to do in
our legislation here, especially as we look forward to possible
infrastructure legislation going forward, is to allow for lead
agencies to be designated for NEPA review and requiring
agencies to sit down and coordinate at the very beginning.
Would either of those two things erode the integrity of NEPA in
any way?
Mr. Howard, or Mr. Bridges?
Mr. Howard. No, no. Coordination among agencies is vital.
The problem has come up when the agencies have different
agendas, which they do--Fish and Wildlife has a different
agenda than the Corps of Engineers--and there is no effective
means of resolving the disagreement. Those disagreements can
last months or years. That is the problem. There are no clear
lines of authority to resolve what are natural and honest
differences in view.
Mr. Lamborn. So, articulating and defining those areas of
agreement ahead of time, either by Congress or by the agencies,
would be a positive development?
Mr. Howard. Well, I think it is impossible to resolve a
disagreement ahead of time. I think you need to create clear
lines of authority.
Mr. Lamborn. Clear lines of authority, thank you.
Mr. Howard. To resolve disagreements.
Mr. Lamborn. Mr. Bridges, in your testimony you mention a
project that has been tangled up in a seemingly never-ending
NEPA review, the Millennium Bulk Terminals project in
Washington State. Why was there such a Federal-State
disconnect, first of all?
Mr. Bridges. I don't know why there is such a disconnect
there. I have been more involved with the state process. It has
been going on for almost 6 years.
Just from an outsider looking at it, it seems to be, no
matter which agency you are talking about, everybody is waiting
for somebody else to be the first one to say yes. And that is
kind of what I feel like, and you will see it in my written
testimony, the people that oppose these projects have figured
out the way to stall things and create a timeline that most
businesses are not going to be able to survive and outlast.
It is so open-ended to try to put a timeline on it, that is
really what we are looking for. We are not looking for de-
regulation or anything, just some type of predictable timeline
for our communities and for the businesses that are trying to
invest in our community.
Mr. Lamborn. Thank you. Would having designated a lead
agency have expedited the project?
Mr. Bridges. I would think so, yes. I think there would be
less finger-pointing about whose turn it is to make a decision.
Mr. Lamborn. Last, I would like to say that the original
intention of NEPA was to allow stakeholders to have a voice in
the project. But I think sometimes that gets hijacked.
[Slide.]
Mr. Lamborn. Up on the TV screen there are some photos that
are going to be shown. And this has to do with a public scoping
meeting in Bangor, Maine for the then-proposed North Woods
National Monument. But these were people that were bussed in, a
2-hour bus ride from some distance away. They were not local
business owners or even local residents, but they were calling
themselves local opposition.
Mr. Bridges, have you ever seen cases of people being
bussed in to provide so-called public comment?
Mr. Bridges. Yes, that is exactly what we have been
experiencing in my area with all the projects. We have three
large projects, and they have a really good coalition, and they
are just kind of moving around. And we see the same people,
whether it is in Vancouver, Washington, Longview, Washington,
and most of them are coming from the Puget Sound area, the
Seattle area, or from Portland.
We do have a few local opposition folks, but you can
usually count those on one or two hands, the regulars that show
up. I think it does discourage the community from coming
because it has gotten to be where either you have to put a blue
shirt on or a red shirt on, and that is not what this process
is supposed to be about.
But they made it a choice between jobs and environment, and
I don't think that is really what we are looking at.
Mr. Lamborn. Thank you very much.
Mr. Gohmert. Thank you. At this time the Chair recognizes
Mr. Lowenthal from California for 5 minutes.
Dr. Lowenthal. Thank you, Mr. Chair. One of the greatest
things about NEPA, in my opinion, is that it gives ordinary
Americans a tool to weigh in on projects that can affect them,
environmentally, economically, and culturally.
This is especially true for those communities that are
highly impacted by projects. In my area of California,
especially true for the low-income, which are frequently
minority communities whose neighborhoods are the most affected
by infrastructure projects.
I think of all the areas that this Committee has under its
jurisdiction, NEPA is the most important for my district.
The district I represent includes what locals used to say
all the time and now say less and less is the diesel death
zone, which are those neighborhoods, primarily low-income and
minority neighborhoods, that border the busiest port complex in
the United States. These communities have above-average rates
of asthma attacks, cancers, especially pulmonary cancers, and
other health-related issues that are associated with air
pollution.
But on the other hand, the economic activity of the Ports
of Long Beach and Los Angeles generate a great deal of positive
benefit for our community. There are thousands of jobs because
the ports are there.
At the same time, there are serious health concerns,
especially in the neighborhoods, as I pointed out, around the
ports. For example, schools have to have filters, kids cannot
go outside, unfortunately, on too many days when the air
quality is bad during their recess.
But even though the ports have made significant
improvements in the environmental conditions in or around them,
and I must compliment them, there is still much more that needs
to be done. And the decisions that we are going to be making in
this port complex and throughout the Nation on infrastructure
matter a great deal to those communities that are affected.
NEPA is the Federal tool in these communities in my
district that they have for weighing in on any major project as
it is being evaluated and finalized. Unfortunately, many of the
reforms that we are discussing today would cut out these very
important voices of my constituents, the ones that need NEPA
the most, potentially.
So, I have a question, first, for Ms. Bear. Even the most
economically beneficial projects, they can hurt the environment
of nearby communities in the absence of clear public review,
both public and Federal agencies. NEPA exists so we don't have
to make those kinds of trade-offs, and instead can move toward
sustainable economic development.
During the NEPA review, when we have projects, such as one
of the recent projects in the Port of Los Angeles, the Everport
Project, where in the review, the EPA expressed concerns about
the project's air quality and human health impacts,
particularly on the low-income communities around it. In the
final EIS, the Army Corps strengthened its air quality
mitigation measures to specify that all the dredging equipment
be electric. That really reduced the impact of the project's
construction emissions, while still allowing the project to go
forward. Is this what you mean by win-win situations, where we
allow and have sustainable projects go forward, but we also
protect communities?
Ms. Bear. Yes, very much so. And I would just add, I
alluded earlier that health, along with social and economic
impacts, are one of the kinds of impacts that I think need to
be given more attention in the NEPA process. I served on a
National Academy panel looking at the role of public health
issues in the NEPA process. There is a lot of work there to be
done, and I am glad to hear that in the Los Angeles Port
situation that worked, and worked well.
Dr. Lowenthal. And finally, finalizing on that, would such
outcomes where we both had a sustainable development, would
they be less likely if some of these proposals we are hearing
today, like shortened review time frames, limits on scientific
analysis, restricted public input--if they were adopted, would
this negatively impact the ability to have this?
Ms. Bear. I can't answer. OK. I thought I was out of time.
In my view, it depends on which measure we are talking
about and some caveats. Let me just explain. Certainly cutting
back on scientific analysis, yes. Cutting back on public
involvement, yes.
In terms of the time, there has been a lot of discussion
and testimony about time and size of EISs. And there is no
doubt that some of the length of time and the length of EISs,
which are the smallest percentage of NEPA documents, is too
long. And I would like to see that cut, and that would be
consistent with CEQ's perspective.
That is where I get to the point that, unfortunately, to do
less in some ways, and certainly to do it faster, you need
people. I think many of us went to school, heard our English
teacher saying it takes longer to write a shorter document--
which is true, you need to do some editing, and you also need
people, staff, that understand what the right issues are, or
can even oversee consultants.
I remember, just to give you an example, if I have another
second.
Dr. Lowenthal. Real quickly, our time is limited.
Mr. Gohmert. The time is expired.
Ms. Bear. I am sorry. OK, thank you.
Dr. Lowenthal. Thank you. I yield back. Thank you, Mr.
Chairman, for your forbearance.
Mr. Gohmert. Thank you. At this time, the Chair recognizes
the gentleman from California, Mr. McClintock, for 5 minutes.
Mr. McClintock. Thank you, Mr. Chairman.
Mr. Bridges, is a cost benefit analysis done before NEPA is
applied to a project? Does anybody ask how much is this going
to cost and how much value can we expect it to add for the
public?
Mr. Bridges. Yes. Usually that is done early on in the
process, from my experience.
Mr. McClintock. OK, and if the cost of the study exceeds
the value that can be expected from it, do we do the study
anyway?
Mr. Bridges. Are you talking about the cost of the EIS?
Mr. McClintock. Yes.
Mr. Bridges. Yes, I don't think that any of these projects
probably anticipated the cost of what the EIS would be after--
--
Mr. McClintock. So, as far as the EIS is concerned, the sky
is the limit?
Mr. Bridges. Yes.
Mr. McClintock. To what extent do these requirements
inflate the cost of projects?
For example, I have a community in my district, Foresthill.
They get their water from the Sugar Pine Reservoir, a small
reservoir that was built years ago with a dam with an 18-foot
spillway, but no spillway gate. They didn't need the water at
the time; they do now.
So, they went out and priced a spillway gate for this
little community of about 5,000 people. The cost of the gate is
$2 million. But then the cost of the environmental studies is
expected to be over $1 million, and the environmental
mitigation over $2 million. So, a $2 million project that was a
heavy lift for this little community, but within reach, becomes
a $5 million cost-prohibitive boondoggle. Is that typical of
these projects?
Mr. Bridges. Yes, the scale that I am looking at from the
projects that I am talking about, they are sizable projects, $1
billion, $2 billion projects. Some of the EISs I have seen are
upwards of $14 million right now for the state.
Mr. McClintock. Often in multiples of what the actual cost
of the project is.
Mr. Bridges. Yes.
Mr. McClintock. With no consideration of the cost benefit
to be derived.
Mr. Howard, has anyone estimated the value of projects that
are never initiated because of the anticipated cost of these
NEPA requirements?
Mr. Howard. It is very hard to quantify what is not done.
It is generally believed, in the infrastructure business,
that private capital sits on the sidelines for the kinds of
projects it would be appropriate for in the United States
compared with, for example, Europe and the United Kingdom,
because there is no certainty as to the timing of approval.
And no, they don't do a cost benefit analysis before doing
an EIS. It is all or nothing. In many projects, like the one
you suggested, the absence of any common-sense decision making
to do what the statute says, which is to balance the public
needs versus environmental needs, is one of the deficiencies.
Mr. McClintock. Has anyone estimated the total cost to the
economy of these requirements? I think taxpayers deserve, in
fact, everybody deserves, accurate price signals of what
benefits we get and at what cost from all of our laws, but NEPA
in particular.
Mr. Howard. If you simply look at the infrastructure that
needs to be remade, most of which does require environmental
impact statements, it is not in these sort of trivial actions
but the big ones, we are talking about multiple trillions of
dollars over the next decade.
We did an analysis that said if there is a 6-year delay,
which is not caused only by NEPA, but also caused by multiple
permitting requirements, that more than doubles the cost of
that. So, if you had a $4 million infrastructure build over a
decade, it would end up costing, in effect, including
opportunity cost, twice as much.
Mr. McClintock. We are told, though, that just 1 percent of
projects require this full-scale environmental, so what is the
problem?
Mr. Howard. That is a very misleading number, because the
categorical exclusions typically apply to very minor things,
like can we put a falcon's nest over at this part of the park.
You have all these sorts of daily executive decisions that fall
under the categorical exclusion.
Mr. McClintock. So, it is the 1 percent that are absolutely
killing us and imposing these costs, and impeding communities
meeting the needs of their citizens.
Mr. Howard. The 1 percent aligns with the American Society
of Civil Engineers report on the infrastructure needs.
Mr. McClintock. Mr. Willox, let me go to forest management
for a moment. We used to actively manage our forests to match
tree density to the ability of the land to support them. This
created a revenue stream to the Treasury for forest management
and local governments, not to mention very healthy commerce.
NEPA has made forest management virtually impossible. We
are told that NEPA is one of our landmark environmental laws,
yet we are now, because of the requirements, carrying four
times the tree density that the land can support in the Sierra
Nevada, and the result is these trees are badly stressed, and
they lose their natural resistance to drought, disease,
pestilence, and fires.
I think we are entitled to ask, after 45 years of
experience with this law, with the promise it was going to
improve our forest environment, how is the forest environment
doing?
Mr. Willox. It is clear that the diseased and insect-
infested trees are a fire danger. And if you have ever read
about a forest fire in the West, the smoke and carbon released
in that fire is way more detrimental than reasonable logging
and harvesting of that lumber would be.
Mr. Gohmert. Thank you. The gentleman's time has expired.
At this time the Chair recognizes the gentleman from Florida,
Mr. Soto, for 5 minutes.
Mr. Soto. Thank you, Mr. Chairman. I am excited that we are
talking about infrastructure. I worry, with the proposed tax
reform that will add $2.3 trillion to the debt, we may not have
any money for it. But let's assume for a second that we have an
ability to do that.
First, Ms. Bear, what do you think an appropriate staff
number would be for NEPA review?
Ms. Bear. I am sorry----
Mr. Soto. You had mentioned that there is not enough staff
to review these NEPA claims.
Ms. Bear. Right.
Mr. Soto. What would be an appropriate number to make sure
we could speed these things up within appropriate reason?
Ms. Bear. For the entire Federal executive branch?
Mr. Soto. Let's just focus on this one area, shall we?
Ms. Bear. Infrastructure? OK, but that infrastructure
involves a number of agencies, of course, the Department of
Transportation, the Army Corps of Engineers, and a lot of other
agencies. I would really like to get back to you on the record
in terms of a number for infrastructure.
Mr. Soto. I think it is important, if you think there is a
certain appropriate number, we would love to hear about it.
Ms. Bear. Sure, OK.
Mr. Soto. Let me go to the next question then. What would
happen if NEPA was eliminated, Ms. Bear? What would be the
consequences?
Ms. Bear. I think, first of all, a lot of people would be
very surprised. A lot of private citizens in the United States
would be surprised much more than they realize now by things
that were happening that they didn't know were going to happen
in advance. And I say that because I think today many people
take for granted, particularly people that live near public
lands and use them, or in urban areas where there is
infrastructure, that if something is going to happen of some
import to them, they will know about it in advance. And if you
take NEPA away, most of the time that is not necessarily true.
There are exceptions to that, there are other laws that
require some sort of public notice or involvement. But NEPA is,
by far, the broadest and most systematic of those laws, so that
is issue Number one.
Issue Number two, I think, while the agencies would
probably continue to try to mitigate some of the most important
adverse impacts, I think you would lose the alternatives
analysis, which is really the heart of the NEPA process. It is
what forces people to think outside of their own little box,
into thinking about better ways to accomplish what we are
trying to achieve in a particular context.
Mr. Soto. So, it is more comprehensive and provides
alternatives?
Ms. Bear. Yes.
Mr. Soto. Thank you.
Mr. Bridges, thank you for coming. We don't want to have
NEPA get in the way of opportunities, obviously, particularly
for our building trades and our working families. What do you
think the time limit should be for a review? Because you
mentioned that some of them are going too long.
Mr. Bridges. Yes. We talk about 2 years as a fair timeline.
I know there are so many different processes and different
agencies that are in there, but that seems like a fair
timeline, and have some predictability there.
Mr. Soto. OK. Mr. Howard, you had mentioned that there are
some de minimis things that are required. You mentioned the
Bayonne Bridge and a traffic study. What do you think should be
the mechanism, if we are talking about something that is de
minimis, in your opinion?
Then you also mentioned balance with cost benefit analysis.
What are you advising us should be the rule on these sorts of
potentially de minimis issues and striking this balance?
Mr. Howard. I think the way the process should work is that
there should be incentive for project developers to engage the
public before the environmental impact statement, so it is not
fully baked by the time it gets to a public hearing.
Then, I think that the environmental officials in charge of
environmental review, and I agree with beefing up the staff, I
think it is very important, should have the authority, if there
is a dispute over the scope of review for a project, to make
decisions. We elect people, they appoint people. You need to
make a decision about how much review is needed for the Bayonne
Bridge or for the tunnel. The tunnel has a significant
environmental impact, but not doing the tunnel immediately has
an incredibly catastrophic environmental impact.
So, someone in the Administration has to be authorized to
say, however we build this tunnel, it is better to get it
started tomorrow than to get it started in 5 years. Someone
needs to have that job.
Mr. Soto. So, a preliminary hearing on scope, or a meeting
among the developers and the government would be helpful, you
think?
Mr. Howard. Well, that would be helpful, and also engaging
the public. But most important is having the Chair of CEQ or
having CEQ have the authority to make these kinds of balancing
decisions, whereas now, in part because of the fear of
litigation, the presumption is no pebble left unturned. So, it
ends up just taking much longer than it ought to take. Most
reviews should take a year or less, even big ones.
Mr. Soto. I yield back.
Mr. Gohmert. Thank you. The Chair recognizes the gentleman
from Alaska.
Mr. Young. Thank you, Mr. Chairman.
Mr. Gohmert. He has 5 minutes.
Mr. Young. I think this is a very important hearing. NEPA
itself was never intended to be an obstructionist part of our
infrastructure, nor building of any other thing. But it has
been used as that.
I will give you an example of Alaska's national forest, the
Tongass, one of the largest forests in America, in fact, it is.
A small portion of the Tongass is managed by the state. The
vast majority is by the Federal Government, who does not manage
it. It takes less than 18 months for the state to plan and
offer a timber sale in Tongass. At the same time, the Forest
Service sales are delayed by 5 years, largely because of NEPA.
And you look at NEPA and here is one thing, gentlemen on
this Committee, whether you want to eliminate it, I don't think
we can, but we ought to at least take and streamline it.
There are 90 statutes that govern the management of the
Forest Service, 90 statutes, which are not connected or working
together as we go through this and, consequently, have bad
forest management in not only the Tongass, but other parts of
the United States.
In the 35 years I have served on this Committee, we have
had two pulp mills, five large saw mills, and many smaller
mills that have been forced to shut down because of the lack of
timber because of the inefficiency of the Forest Service. We
have lost 5,000 family wage jobs in this area that used to take
and support small communities that no longer exist. Some people
like that, but NEPA should not be used to slow down and impede
the development because it does not protect the environment.
And that is really what we should be talking about. I think we
ought to recognize that as a Committee, that the environment is
not protected by this law. In fact, it increases the problems
we have.
I noticed someone in their testimony talking about when we
slow down traffic congestion, that adds more to the environment
degradation than we do ordinarily because of NEPA.
And, by the way, we are the only country in the world that
can spend money as we are spending it to achieve nothing. We
are spending money, this is as bad as some of the wars we have
had. We do not achieve anything in this effort, because we
don't really address the environment. We don't take into
consideration the impact upon communities, the individual jobs.
The prosperity of this Nation is being held up because of this
law. It does need to be improved.
Mr. Howard, in your written testimony, you talk about labor
groups and delay tactics. But when a project's applicant and
labor groups are on the same page, isn't that something that
should be looked at as a positive for NEPA review?
When these groups are on the same page and we still see
delays, why? And what does it accomplish?
Mr. Howard. There are many projects that everyone agrees
ought to go forward, and labor is arm and arm with the National
Association of Manufacturers and the regional plant
associations and such, and it still takes years, unnecessarily.
So, your point is extremely well taken.
But I go back to the point that if you don't have a
decision maker whose job it is to balance, you have this
utopian assumption that every project gets full review, even
though everybody knows that the right thing to do is to go
clear out this part of the forest. And society doesn't work
without people using judgment. We cannot create automatic
government and utopian solutions. Unfortunately, NEPA has
evolved into that delay for no good purpose.
Mr. Young. As a member of the Transportation Committee and
the chairman at one time, we were replacing a bridge because
the old bridge was wore out. And we had to have a NEPA review
on the fish activity on the new bridge. The new bridge was 24
feet from the old bridge. Now that is stupidity beyond any
stupidity action you can possibly have.
Mr. Howard. Oh, I can----
Mr. Young. It held up the project for 4 years, because we
were studying the fish that went underneath the old bridge all
those years. Now we build a new bridge, we had to have this
NEPA study. That is stupidity. And yet this Nation allows that
to happen.
We have to change this law so it has more sense, so we have
quicker decisions, we don't have all the statutes, we don't
have all the agencies that are involved, so that projects are
held up forever and ever and ever, and which cost more money
and hurts the environment.
Anybody disagree with that at that table? Anybody disagree
with that?
An old bridge and a new bridge, what was right with that,
or why was it necessary to have it done? That was under your
watch, by the way.
Ms. Bear. Congressman Young, that is not a specific issue I
was involved in, I cannot speak to that bridge. But to the
extent that the issue is bridge replacement, I would like to
give you an example of where NEPA did make a positive
difference on a community related to a bridge replacement.
Mr. Young. Did it make a difference on the fish?
Ms. Bear. On the case I was going to mention, the fish were
not the issue I was aware of. It was an issue affecting the
community and businesses in the community.
Mr. Young. I was speaking about, and I think you ought to
consider it, that is what held up that bridge for 5 years, or 4
years.
Ms. Bear. OK.
Mr. Young. That is the stupidity of this Act. Mr. Chairman,
thank you. Because if we don't change this Act, we don't have
the money to continue how it is being implemented by mostly
easterners, by the way, and I am a westerner.
[Laughter.]
Mr. Gohmert. All right, thank you. The Chair recognizes the
gentleman from California for 5 minutes, Mr. Huffman.
Mr. Huffman. Thank you, Mr. Chairman. I wish we did spend
more time talking about how these laws are being implemented,
and how we can make them work better, instead of constantly
scapegoating the laws themselves, and the policies behind them.
And I am disappointed that today's hearing seems to have been
set up for us to simply talk past each other to try to box the
Democratic side of the aisle in as those who are the defenders
of delay and bureaucracy, and the Republican side as those who
want to see major projects happen.
If we could stop talking past each other, for example, my
colleague from Colorado literally said NEPA has become nothing
more than a weapon to stop projects. I would like to have a
conversation about that, because I think he knows that is not
true. He knows that NEPA, in 98 percent, 99 percent of
projects, is not a source of significant delay at all. There is
no challenge, these projects are moving forward. You are simply
requiring public notice, public input, and an alternative
consideration, which is, frankly, a way to make for better
projects.
It was said earlier, very casually, that NEPA was blamed
for a small spillway gate project at Sugar Pine Reservoir in
California, a project that is not even owned by the Federal
Government. There is probably a NEPA review somewhere in the
course of the many permits and reviews necessary to raise that
spillway gate. But I would like to talk to my friend, Mr.
McClintock, a little more about that project, because I am
willing to bet, dollars to doughnuts, that NEPA is not the
reason the review process and the planning process for that
project cost more than the construction of that project. And to
suggest, as the colloquy between the Member and the witness
did, that it is somehow typical for the NEPA cost to exceed the
project cost, we are now drifting into the realm of hyperbole,
scapegoating, and factual distortion that just prevents smart
policy making.
So, I would love to get back to the real world and the real
facts. Ms. Bear, I would like to ask you about one of the
claims that was made to again trivialize this idea of public
input. It was suggested that for an offshore wind project,
lawsuits were about protecting ocean views. In reality, my
understanding is that opponents argued that stakeholders,
including fishermen, were simply not adequately consulted, and
that alternatives were not identified. These are key components
to the NEPA process: consult people who are impacted, consider
alternatives.
Can litigation actually argue against a project's design?
Ms. Bear. No, that would not be a kind of claim that would
be brought under NEPA, in terms of the design. There might be a
claim associated with failure to look at some sort of
reasonable alternative to that design, but the courts don't
weigh in on the goodness or badness, so to speak, of the design
or the project itself.
The point of NEPA litigation is whether or not an agency
followed the procedural requirements of NEPA.
Mr. Huffman. All right. And what about the importance of
this public input? There has been an effort to trivialize
public input, to suggest that it is a circus, that people dress
up in costumes, and that that is what public input under the
NEPA process is all about.
I can't help but think that right now they are cleaning up
an oil spill in part of the Keystone Pipeline, and I wonder if
maybe they should not have listened to the people that came to
public meetings dressed up as fish and in tribal outfits and
raising their posters high, instead of just listening to the
oil executives who are now hiding under their desks and never
seem to be around when things go wrong. Maybe we need to be
more careful and have more public input for some of these big,
polluting projects.
But why do we value public input in this process?
Ms. Bear. Because it matters, and because we are a
democracy.
I have seen a number of situations, I am not going to sit
here and say every single one, but I have seen decisions
fundamentally change through public involvement, and that
matters. It matters a whole lot to the citizens to know that
they have actually played a role in government decision making.
And it has improved the environment.
Mr. Huffman. Well, I am not claiming that NEPA is perfect,
nobody is claiming it is being implemented perfectly. But do
you have any thoughts to close out my time on how we could make
NEPA faster, more efficient, more effective, without gutting
the important purposes?
Ms. Bear. I think it is critical to focus on
implementation. And I don't have much time left, but I will
just take one of several examples here.
Mr. Howard has spoken about the 6-month delay in choosing a
lead agency for the Bayonne Bridge. I understand why that would
be frustrating. There is a process in the CEQ regulation, a 65-
day max to determine the lead agency. Anyone can trigger that
process, and there are many other examples.
I am out of time.
Mr. Huffman. OK, I yield back.
Mr. Gohmert. This time the Chair recognizes the gentleman
from New Mexico, Mr. Pearce, for 5 minutes.
Mr. Pearce. Thank you, Mr. Chairman. It was interesting to
hear my friend talking about hyperbole coming from our side,
and in the next breath talk about oil execs hiding under their
desks. That appears to be maybe just a little bit over the top,
itself. But I appreciate the gentleman's observations.
Mr. Willox, this whole idea that somehow we are overblowing
the effects that you face on the ground, I hear from county
commissioners, I represent a 34 percent Republican district, so
most of the counties' elected officials are Democrats. I hear
from them equally as much as Republicans that there are bad
effects coming from the NEPA process that affect their forests
and the jobs.
So, tell me, from your perspective, is the process only 1
percent of the time destructive? Is it more destructive? I
don't know. Tell me from a county commissioner point of view.
Mr. Willox. Well, I think it is important to distinguish
between the big projects and the little projects. This is the
draft EIS for a big project, our Converse County oil and gas
one. We have a checkerboard ownership, minor Federal surface.
And I talked earlier, the Federal nexus is a mile away from
the disturbance. Why should that private land be encumbered by
the NEPA process because we are touching Federal minerals a
mile away? This law was written before horizontal access to
minerals, so I think that is a bad decision when we impact
private landowners and their surface that they own.
The other examples are on minor projects. I talk about a
power line in our area--you will see power lines that literally
take two 90-degree angles, or three, to go around Federal
surface so they don't have to go through the process and the
cost of the shortest, most reasonable route that would have the
least impact on the environment. So, the negative consequence
of following that process is we build a longer power line with
more disturbance that costs more. Absolutely against the goals
of making positive decisions for the environment, and informed
decisions.
Mr. Pearce. You are just mentioning the 1 percent, so 99
percent is OK?
Mr. Willox. No, the----
Mr. Pearce. OK, I just wanted to clarify.
Mr. Willox. To be clear, the power lines are in that 99
percent, because it falls under those small----
Mr. Pearce. I am just razzing you, thank you.
Mr. Willox. Yes, thank you.
Mr. Pearce. I appreciate that.
Mr. Bridges, you heard Ms. Bear say that one of the great
benefits of NEPA, I think it was in response to the question if
there was no NEPA, that people would be surprised by the things
that are happening, that it is important to know in advance.
How many projects do you think your association would move
forward without notifying people that it is going on?
In other words, I am trying to evaluate the validity of the
comment that was made by a fellow panelist. Do you keep things
kind of secret, and the only reason you bring them up is
because of the NEPA process?
Mr. Bridges. No, I don't think it would be secret. But I
also agree that we have heard some great examples from Ms. Bear
and others about collaborative things that happen and things
that get put into projects, mitigation and things that may not
have happened. And those are good things. I just have not had
that personal experience during the hearing processes with
that.
We have had success in working with the private investors
that are wanting to spend the money in our state.
Mr. Pearce. OK. All right, I need to keep rolling. Mr.
Howard, the same question. Do you keep things silent, hidden
below the dark, and they only surface because of NEPA?
And I need a quick answer on that.
Mr. Howard. No one in modern America would be smart to do
that. I come at this as a civic leader, so I am used to really
dumb decisions by public officials on projects that make no
sense, and opposing them.
I do think that NEPA is important, and I think the public
role ought to be beefed up, not cut down. As I said earlier, it
should be done earlier in the process, you really get
meaningful feedback, rather than after you have a 1,000 or
10,000-page environmental impact statement.
Public input is important. What is not important are
academic studies and bickering over whether you disclosed
something accurately in page 556.
Mr. Pearce. All right. I have another question I need to
ask here. I get the idea, and I appreciate your input. Sorry to
rush along.
Mr. Willox, what is the effect on the schools when we kill
the jobs in these rural areas? I suspect Wyoming has some areas
much like my district, very massive rural areas. The only jobs
used to be keeping our forests clean. Now we are burning our
forests down, but it doesn't take any jobs to do that. So, what
is the effect on our schools when we don't have these clean-up
projects in our forests?
Mr. Willox. Well, you are absolutely right. The local
economies are hurt any time we lose jobs for any reason. And
forestry was a big part of parts of Wyoming. Some of those have
converted to firefighters, which is a very unfortunate
transition, from timber to firefighting.
So, not just the schools, but the community and all that is
part of that community is hurt any time jobs are lost for
reasons that seem to be out of the control of the locals, and
seem to not be in the best interests of the local socio-
economic environment.
Mr. Pearce. OK, thanks.
I yield back, Mr. Chairman, thank you.
Mr. Gohmert. Thank you. At this time the Chair----
Mr. Grijalva. Ms. Barragan and then----
Mr. Gohmert. OK, the Chair recognizes the gentlelady from
California, Ms. Barragan.
Ms. Barragan. Thank you, Mr. Chairman. I wanted to follow
up on this. It seems like we are hearing a lot of complaints
about NEPA, horror stories about the Act holding up economic
development. Some of my colleagues have said it is not true. I
am one of those, that it is less than 1 percent of instances
where NEPA causes these delays.
We just had one of my colleagues question Mr. Willox about
what is happening in his county, and whether it is actually
less than 1 percent. And I just want to remind everybody that
the actual figure we are using is coming from a report that is
being cited not just by our side of the aisle, but the other
side of the aisle. It is a 2014 U.S. Government Accountability
Office report. So, I would much rather focus on what we are all
relying upon than just one select county.
Ms. Bear, I wanted to give you an opportunity. You had
started to give an answer about some of the implementation
suggestions you had. Did you want more time to complete that
response?
Ms. Bear. I appreciate that. One of these days I will learn
to hit the button. Apparently I am a slow learner on that.
Anyway, yes, I do appreciate that opportunity. I wanted to
make several observations about issues that have been brought
up in the testimony that I am very sympathetic to, but that
really run to the point of implementation issues because of
either lack of staff or, frankly, staff that have not been
given appropriate training to do their jobs. I have met some
staff people who have been given NEPA assignments and, frankly,
don't know anything about it.
I already mentioned very briefly, Mr. Howard has used the
example of the 6-month dispute over a lead agency there, and
also the need for a decision maker. There is a dispute
resolution process specifically geared toward CEQ making a
final decision in the case of a dispute over a lead agency and
affected parties. Mr. Howard could have brought it, anybody
could bring that in to CEQ, and CEQ has 20 days to make that
decision, and it is a final decision.
Mr. Bridges pointed out the difficulty and frustration of
having two separate environmental impact statements done: the
Federal EIS, and I think, I could be wrong, a 13,000-page state
EIS. That is horrifying. And it is one of the things that I
found saddest when I was trying to do oversight for many years,
as the only person overseeing 85 agencies. That never should
have happened, unless there was some very extraordinary
circumstance. That should have been a joint EIS. The agencies
should have done it together to fulfill both the state and
Federal requirements.
The ID teams, the early involvement and ID teams that Mr.
Willox mentioned, absolutely. The county and the state, if it
is appropriate, the tribe, and the tribal government, if there
is one involved, should all be at the table, should be part of
the ID team, and should be making major contributions about
areas that they are very familiar with, including the social
and economic structure of the community.
There are many more examples, but I just wanted to pick
some that were relevant here. All of those are already
addressed in the CEQ regulations, or CEQ guidance. Clearly,
they are not being perfectly implemented. And we are never
going to get to perfection, but I think we could do a heck of a
lot better, in terms of implementing it, with adequate
capacity.
Ms. Barragan. Great, thank you. When I looked into this, I
reached out to my own area in Los Angeles and heard success
stories. The Los Angeles County Metropolitan Transportation
Authority's Crenshaw/LAX transit corridor project was one of
the Federal Transit Administration's first projects piloting a
new NEPA process that helped identify and mitigate project
risks more efficiently through the project review process.
The Transportation Authority determined that a 5-mile
stretch of the project could actually utilize a rarely used
existing freight rail line corridor, instead of building new
tracks in that section. The railroad agreed to abandon the line
and allow the Authority to use it. That decision decreased
project cost, saved time, and reduced disturbances for a nearby
community by using an existing right-of-way, while providing
significant environmental benefits, economic development, and
employment opportunities throughout Los Angeles County.
Ms. Bear, is this the kind of outcome that NEPA was created
to produce?
Ms. Bear. Absolutely, yes.
Ms. Barragan. Thank you.
I yield back.
Mr. Gohmert. Thank you. At this time, the Chair recognizes
Dr. Gosar from Arizona for 5 minutes.
Dr. Gosar. I thank the Chair. Mr. Chairman, I just heard a
conversation from my colleague from California about talking
past ourselves and bringing up issues. It has been noted that
the Minority witness is one of the chief litigants from one of
the major litigation groups in the country.
I have this document, it says donate here, the name is
right on the front, here are over 500 litigations from the
Defenders of Wildlife, right here. I find that kind of
interesting, that when we are talking about solutions, that we
would bring a headhunter like we have right here.
Number two, we might be a form of democracy, but we are a
representative republic. And I caution everybody to make sure
you understand that. It is a higher degree in that regard.
Mr. Howard, in your written testimony, you mention that
former EPA General Counsel E. Donald Elliott estimates that 90
percent of detail in Federal impact statements is there not
because it is actually useful to the public or decision makers,
but because it might help in the inevitable litigation--a form
of environmental ``defensive medicine.'' Has the original
purpose of the NEPA been lost in its quest to have the most
litigation-proof NEPA environmental review?
Mr. Howard. The original purpose has been undermined by
this form of implementation that really makes it inaccessible
to the public and not practical for reasonable decisions.
Dr. Gosar. So, how has the NEPA litigation shifted the
balance of power of who is ultimately in charge of permitting
projects and held accountable for those decisions?
Mr. Howard. The litigation over NEPA in many cases shifts
power to opponents who can then use it to achieve--sometimes
these benefits may be in the public good, and sometimes they
are for the good of the group.
So, for example, in the Bayonne Bridge, the group funding
the litigation against the environmental impact statement was
the union for the Port Authority, which wanted to use the
litigation as the lever to get the port to agree to be a closed
union shop. They were using the NEPA litigation as a lever to
get something that had nothing to do with the environment.
Dr. Gosar. So, the fact that I brought up these 500
litigations actually has a big influence upon that process,
does it not?
Mr. Howard. It does.
Dr. Gosar. Interesting. So, Mr. Willox and Mr. Bridges--
first, Mr. Willox. There are some who would argue that because
the number of projects that require an environmental impact
statement is small compared to the overall number of projects
reviewed, that reform is not necessary. The assumption here is
that companies pursue projects without considering the
realities of navigating the NEPA process. We know that is not
true.
Can we actually quantify the number of projects that are
never initiated due to the lack of confidence in the efficiency
of the Federal approval process? Mr. Willox first.
Mr. Willox. Unfortunately, I cannot quantify that for you,
but it is a daunting task. We are 4 years into an oil and gas
project in Converse County. The environment for oil and gas
development is entirely different than when they started the
project.
So, for private companies to try to forecast and work
through a process like this, and not know what their business
environment is going to be like at the end of it, is for some
an unreasonable risk to take, so they look for avenues that may
avoid that.
Dr. Gosar. So, it is like moving the goalpost?
Mr. Willox. The goalpost is always moving. Then you throw
14 referees in the middle of it, it makes it a little hard.
Dr. Gosar. And then you have this in the background, any
little thing may be sued upon.
Mr. Bridges, your opinion?
Mr. Bridges. I would agree with Mr. Willox on that. Just
from my personal experience, the goalpost continues to move and
evolve. And that is all we are really looking for,
predictability. And I think that is what business is looking
for. When you have a project that you want to get built, and
you have the community and business behind it, some reasonable
timelines would be great.
Dr. Gosar. So, the two of you, have you ever encountered or
observed a situation where, prior to initiating a new project,
you have seen a threat of an extensive NEPA play a final impact
on the final review, or going forward with that project? Have
you seen a project like that, Mr. Willox?
Mr. Willox. I have not seen one specifically. Anecdotally,
I have heard it, but not in our area. But I could visit with
more colleagues in our area to find out if people have said no.
But it also affects government projects. If we want to do
something, if local government wants it, we can trigger that.
And there are times that that cost or implementation is
definitely a consideration at the local level, whether to move
forward with a road improvement project or something like that.
Dr. Gosar. I think everybody should acknowledge that it is
not just about being no or about being yes, but how do you do
it right?
Mr. Willox. Correct.
Dr. Gosar. And that is the key here. Instead of just saying
no, no, no, no, no, it should be about what is it going to take
to be yes.
Thank you, and I yield back.
Mr. Gohmert. Thank you. This time the Chair recognizes the
gentleman from California, Mr. Costa, for 5 minutes.
Mr. Costa. Thank you very much, Mr. Chairman and Ranking
Member, for holding this hearing today, and having the
opportunity to review how we might improve the National
Environmental Policy Act, otherwise referred to as NEPA, that
was first implemented when President Nixon, on January 1, 1970,
signed it into law.
Having sat through more of these hearings than I care to
recount, I guess I kind of have an idea on how this one is
going. My colleagues across the dais will talk about delays
that have occurred as a result of NEPA for a host of reasons,
like permitting under other laws. Of course, we do, as the
witnesses have testified to, have that complicating factor of
state and local laws that are done in conjunction with, but are
not actually required by the environmental impact review
process under NEPA.
Most reasonable people, I think, would agree that some of
the delays are caused by an abuse of the National Environmental
Policy Act by stakeholders who want to delay or even stop a
project to extract concessions or some resulting legitimate
debate about reasonable alternatives that the Federal
Government might pursue.
Some of my colleagues on this side of the dais will say
that NEPA is not the real cause of these delays, and that our
Republican colleagues are simply trying to weaken or eliminate
environmental laws. I have said a number of times, there is
truth in both observations.
But relating anecdotal stories doesn't count all the
changes that have occurred since 1970 in what clearly is a much
more litigious society that we live in today than back in the
1970s and the 1980s, and I think we need to get past it.
In 2015, in a transportation bill, we did amend NEPA to, I
think, provide a better way in which we can process this
effort. But at the end of the day, working together with
Republicans and Democrats is the only way we are going to
improve the environmental review process under NEPA, and to
increase responsible public agencies, and also to ensure the
right projects are built at the right scale in the right areas
in a timely manner. And the timely manner gets to the point.
I will give you an anecdotal story. In 2011, some of my
colleagues were in the state legislature. I had been there up
until 2002 for many years. We waived a portion of the state
equivalent under CEQA for a football stadium. We know a lot of
these things deal with not only public policy, but the politics
on a host of these projects. It was determined in the public
interest that this stadium was very important. So, we limited
the time for judicial review, and we waived the period to deal
with the superior court, so that if there was a suit brought
forth, it would have to go to the appellate court.
I don't know if that was good public policy or not. But the
point is that, for reasons that we thought were meritorious, be
they political or otherwise, we changed the law. OK?
So, nothing is perfect. Nothing is set in stone. I think
the Congress was designed to function and to provide oversight
and review, and a lot has changed since 1970. And I think it is
appropriate, and I would like to see changes in NEPA, that we
would try to figure out how we chart a course to pursue good
public policy.
Ms. Bear, I was taken by your comments, because I think
whether we are Republicans or Democrats, rich or poor, the
economy and the environment, everyone has a stake in ensuring
that good public policy is pursued, that we do not delay and
have sort of tactics that really deal with people who don't
want a project.
But you talked about some observations you had, joint EISs,
having multi-agencies work together. What reforms would you
recommend, with your experience working with Democrats and
Republicans, and you are involved with CEQ, on how we could
make a better mousetrap, for lack of a better term?
Ms. Bear. There are a number of provisions in the CEQ
regulations that were specifically designed to reduce delay.
Many of those are not getting implemented on a regular basis.
And I would like to see some serious oversight on why those are
not getting implemented.
In terms of changes to the statute, I don't think that is
necessary to expedite the process. I really do think most of
this is implementation issues. There are other reasons for
delays, of course, besides NEPA that get caught up in the NEPA
process, including compliance with other laws, funding
proponents, changing plans.
In California, which is also my home state, there is a
provision, as I understand it, in CEQA that allows the state to
essentially use the Federal EIS; although sometimes, for other
reasons, California does do joint documents. But certainly
better coordination between the state governments and the
Federal agencies is a big part of what could be improved.
Mr. Costa. Can you supplement a state law for a Federal
law, if it exceeds the requirements?
Ms. Bear. There is a pilot project essentially right now
under the FAST Act for that. And CEQ has recently published for
public review and comment criteria that would define that. So,
we will see how that works. That already is part of the law.
Some states like California certainly have capacity for
that, and a lot of experience under CEQA. The majority of
states don't have a ``little NEPA law'' like California and New
York City and New York does, so I think that would be much
harder for the states.
Mr. Gohmert. Your time has expired.
Mr. Costa. Thank you. You might want to provide the
Committee with maybe some subsequent information that might be
helpful.
Ms. Bear. Sure, happy to supply more for the record.
Mr. Gohmert. Thank you. At this time, the Chair recognizes
Mr. Tipton for 5 minutes.
Oh, I am sorry. I recognize Mr. Hice for 5 minutes.
Dr. Hice. Thank you, Mr. Chairman.
Mr. Howard, is it fair to say that the NEPA review process
is very costly, as a general rule?
Mr. Howard. Yes. For large projects, many millions of
dollars, not counting the time.
Dr. Hice. And with that, obviously, it is also time
consuming.
Mr. Howard. Yes.
Dr. Hice. Many of you have mentioned that, in essence, this
becomes a magnet for litigation, would you agree?
Mr. Howard. For many large projects, yes.
Dr. Hice. It is just set up for that. Others of you agree,
basically, with this?
Mr. Bridges, you mentioned earlier about many people coming
from, and others did as well, not the local area, but from
extended areas, particularly for the Millennium Bulk Terminal
project. In the process of those individuals coming, would you
say that at least portions of the project were hijacked by
those individuals for their political agenda, whatever that may
have been?
Mr. Bridges. That is what it seemed like to us. It seemed
to be more based on the particular commodity or whatever,
instead of actually looking at using the process to look at how
it really impacts the state and the area.
Dr. Hice. That is the impression I got, that is why I am
using that.
Mr. Willox, would you say as well that that is frequently a
reality?
Mr. Willox. It definitely exists. I don't know if it is
frequently, but there definitely is some of that. We had
comments come from Germany and Europe on prairie dogs in
northern Converse County that the agency must consider and look
at. That seems to be a time sink to me, that the agency's time
could be better spent.
We talked about staffing. Why review comments from foreign
countries on prairie dogs? It seems not the best use of
resources.
Dr. Hice. Not exactly local. All right, so GAO has said we
are looking at an average of 4\1/2\ years.
Mr. Howard, I think you said 4.6, is that correct?
Mr. Howard. That is correct, yes.
Dr. Hice. All right, so this is, in any way you look at it,
a cumbersome process, not exactly the intent of Congress
originally in 1970.
Mr. Howard. Early environmental impact statements were
dozens of pages long. And the regs say that even in the largest
projects they should never be more than 300 pages.
Dr. Hice. Would you say that your view is that public
comment ought to come earlier in the process? With them coming
as they currently are, is that detrimental?
Mr. Howard. Yes. I think there should be informal and
perhaps some formal public process before the environmental
review is done to talk about the project, and get the public's
concerns. It is really important to get public input.
After the project is done and you have a multi-thousand-
page report, you end up having this thing that often does
resemble a circus, and people are just justifying their
decisions.
Dr. Hice. And having public opinion at that point creates
more problems?
Mr. Howard. It creates many problems. Sometimes some good
comes of it, but not nearly as much as if you do it earlier.
Dr. Hice. All right. Mr. Bridges, with you, on the public
input part of things, your experience in both observing and
participating in all this, what have you observed with the
public input?
Mr. Bridges. Well, I think I mentioned this earlier. It
seemed to be that, because of the way the process works, people
get involved later on after the draft EIS is out, and it is so
publicized, it is in the paper, it is advertised. It allows
these groups, the coalitions, to get together. And, I think, it
prohibits the people in the public that really want to
participate, because they do not want to have to pick a side.
They want to go and do what Ms. Bear talked about, and talk
about what they want to see in mitigation, or their real
concerns, not be part of the sideshow.
Dr. Hice. So, again, your experience right now, the public
input part as it currently exists, is it detrimental to the
overall project?
Mr. Bridges. I think so, yes. It just adds drama that does
not need to be there, instead of dealing with the real facts of
the project.
Dr. Hice. All right, with the Millennial Bulk Terminal
project, for example, how is the public input part being
detrimental?
Mr. Bridges. I guess because there really is not any
limitation, it discourages people that would participate to
stay on the sidelines, and it just leaves it to the proponents
and the people that are fighting. So, there does not seem to be
a middle ground of like what Ms. Bear was describing in some of
the transportation projects.
That is where I would like to see things, where we are
working together to try to get this stuff done. But right now
it is----
Dr. Hice. I will yield back. But you say it is detrimental
to the project itself, as well. I just want clarification.
Mr. Bridges. Yes.
Dr. Hice. OK, yes. Thank you, Mr. Chair.
Mr. Westerman [presiding]. The gentleman's time has
expired. The Chair now recognizes the Ranking Member, Mr.
Grijalva, for 5 minutes.
Mr. Grijalva. Thank you very much, Mr. Chairman. And thank
you, Ms. Bear, for being with us. Good to see you again. And
your expertise on this, on NEPA, is one of the best in this
country, and we appreciate that and your advocacy on a variety
of issues.
But let's talk a little bit about a comment that my
colleague, Mr. Huffman, made about our side of the aisle here
just defending the status quo of NEPA, and not acknowledging
anything else in there. Part of the status quo has been, from
2011 until now, less resources, less training for staff, less
staff. And you kind of build this self-fulfilling prophecy
around NEPA, that because NEPA is taking so long, that there
must be other, more dramatic efforts that need to be undertaken
to reform NEPA, such as eliminating it, constricting it, and
putting mandates on it that effectively will kill the public
input that is the whole point of NEPA.
I find it curious in some of the comments that by inviting
public input we somehow limit other public input. I do not
understand the logic of that.
Could you talk a little bit about resources in the agency?
You already mentioned the training.
But also, when projects are delayed, there are also delays
associated with the lack of funding and adequate funding for
that particular project to go forward, and somehow NEPA ends up
getting blamed for that. And the remedies that already exist
within NEPA to deal with some of the issues that have been
brought up by my colleagues in the Majority, if you wouldn't
mind.
Ms. Bear. Right. And I think I already mentioned some of
those.
Just at the beginning, if you don't mind, I want to take 1
second to say that I am appearing here in my own capacity. I
just want that on the record, as former General Counsel, not
representing any organization, although I am very proud to be a
member of Defenders of Wildlife.
In terms of the time delays and the capacity issues, let me
just give a couple of quick examples. I think I already alluded
to one, which was an agency that essentially stopped appointing
anybody with any NEPA expertise to do NEPA, and told everybody
in the agency that they had to ``do NEPA,'' who had not been
trained. That is kind of a recipe for inefficiency.
In another situation, I met a gentleman who had been told
he was the regional coordinator for NEPA. He had spent 6 months
getting questions from staff on how to do things, didn't even
know who to call to ask. Fortunately, he did come to a forum
where I and some of my colleagues were doing some training, and
he had yellow pads full of questions that he had written down,
didn't know the answers. I spent an evening with him going over
every question.
So, those kinds of things certainly hurt. But one of the
things I found that nobody has mentioned, and I am not trying
to cast aspersions on proponents, but proponents sometimes make
major changes in their projects for good reasons, but they hit
the pause button in terms of giving information to agencies, or
it has changed enough that there needs to be a change in the
analysis. And you have already alluded to funding.
There are a lot of remedies I would love to talk at great
length about, some of the issues, I have already mentioned
doing joint EISs with the state and Federal Government. There
is a lot of flexibility.
Mr. Grijalva. And the utility of CEQ, in terms of being
arbitrator, mediator----
Ms. Bear. Right.
Mr. Grijalva [continuing]. And that point of decision
making, so when the issue of we don't know who the lead agency
comes up, that there is a mechanism to settle that.
Ms. Bear. Yes. There are two formal dispute resolution
processes in the CEQ regulations, and the Supreme Court has
said on numerous occasions that lower courts owe ``substantial
deference'' to CEQ's interpretation of NEPA, and that no court
has ever overturned that or questioned that.
Mr. Grijalva. OK. Thank you very much.
Mr. Bridges, in terms of the Millennium project that your
testimony addresses, the role of the State Department of
Ecology in that, they are in support of the project at this
point?
Mr. Bridges. We have one permit and we have others that
have been challenged that are in appeal.
Mr. Grijalva. So, is that particular action at the state
level, is that contributing to the delays that you talked about
earlier?
Mr. Bridges. Yes, I think so.
Mr. Grijalva. So, one cannot place the entire
responsibility for your complaints about delay entirely on the
NEPA process, in so far as the Department of Ecology for the
state has not given you complete green light.
Mr. Westerman. The gentleman's time has expired. The Chair
now recognizes Mr. Tipton for 5 minutes.
Mr. Tipton. Thank you, Mr. Chairman, and thank the panel
for taking the time to be able to be here.
I think what I found interesting is, on both sides of the
aisle, people are talking about a NEPA that does need some
changes. It is not perfect. That seems to be a common thread
that is going through, to be able to make sure that we can
actually have those opportunities to be able to have real win-
wins.
And I do find it disturbing when Mr. Willox is stating that
we are getting comment, though, coming in from Germany having
the full weight of an American citizen being able to comment on
those projects, and taking in that consideration.
And maybe just to go off of the foreign connection end of
it there, Mr. Howard, you had cited in your testimony, I
believe, how long did it take in Germany to be able to get an
approval process?
Mr. Howard. The most complex projects typically take less
than 2 years, 1 to 2 years. Environmental reviews generally
finish within 1 year, again, on complex projects. But it is not
because they are less environmentally sensitive, it is thought
to be a much greener government and society than America, it is
because they have clear lines of authority to make decisions.
Mr. Tipton. So, that streamlining process, that authority,
is something that is going to be really critical.
Mr. Howard. Authority is critical in a culture, and the
fact that there is a procedure to appoint a lead agency and to
make a formal request to appoint it is not a substitute for an
official who says it is my job to make sure this moves along,
and I want to make the decision.
So, processes take a long time to wind their way through.
Mr. Tipton. Could you maybe describe for me, with that
streamlining, I think Ms. Bear had talked to it, as well. What
if a lawsuit is filed? Even though you have had it streamlined,
you have had an approval, if a lawsuit is filed, will that hold
up a project?
Mr. Howard. Lawsuits do hold up projects, typically. It
depends on the project. The kinds of lawsuits we have been
talking about are disclosure lawsuits at the end of an
environmental review. That is typically when they are brought.
Much of the delay comes in the internal processes of first
you do this, and then you have to have the scope, and then you
do the scope, and then you come back, and then this agency is
disagreeing with that agency, and then they schedule a meeting,
and before you know it, years have gone by.
Mr. Tipton. So, you are on the cusp of approval, and then
that is when the lawsuits will happen. I think you and Mr.
Bridges have both cited in your testimony that at times the
process has been hijacked, almost, by litigation coming in from
activists to be able to just literally stop a project.
In my own district in Colorado, we have a mining project
that is currently 8 years in the process right now to try to be
able to get the approvals, have constant lawsuits which are
coming up that are stymying that. And it is impeding, actually,
the ability to be able to achieve what I think on both sides of
the aisle we would hope our goal is, is to be able to have
adequate environmental review, and to be able to keep the
trades working, and people employed, and people to be able to
provide for their families.
Mr. Bridges, Mr. Howard, can you maybe give us, we have had
a few ideas Ms. Bear has thrown out, how do we actually fix
this to make sure that process is addressed?
Mr. Howard. We have proposed legislation attached to my
testimony. But making it clear, create clear lines of authority
to make decisions about scope and adequacy of environmental
review in CEQ, just making it clear that that is their job,
that is one thing.
Second, making it clear to courts that litigation would be
countenanced unless there are sort of either illegalities,
omissions, or misstatements that materially affect the
environment, not a sort of a nitpicking thing, and creating an
expedited timetable to do that.
If you had an expedited timetable and you had clear
decision makers, you could constrain these processes from 8 to
10 years down to 2 years, we think, without more legislative
action than that.
Mr. Tipton. Mr. Bridges, in the last 35 seconds, do you
have something to add?
Mr. Bridges. Nothing really to add to Mr. Howard, except
just the timelines are key, just to keep things moving and have
a predictable timeline.
Mr. Tipton. Great. Thank you, and I appreciate you being
here.
I yield back, Mr. Chairman.
Mr. Westerman. The gentleman yields back. The Chair now
recognizes the gentleman from California, Mr. LaMalfa, for 5
minutes.
Mr. LaMalfa. Thank you, Mr. Chairman. Thank you, panelists,
for being here with us today.
My district is in Northern California, where we have a lot
of issues with timber, timber management, and water management.
We have two very large lakes, Lake Oroville and Lake Shasta,
and two large river systems, Feather River and Sacramento
River, as well as highway projects, and a potential water
storage project called Sites Reservoir in my neighboring
district to the west side of the Valley.
I find that NEPA and California's level CEQA are very
effective tools to stop development. And I certainly understand
the need to have a review, and a review process, but each year
hundreds of thousands of acres burn on forest land in
California, so you would think that, after that has occurred,
and you have a window of time to recover timber that still has
some value there, 6 months, even up to a year, you can help pay
for the cost of refurbishing the forest by getting out there
and getting after it.
So, why in the world do you need a NEPA to do something
that is already an established practice on a pretty well-known
zone? Yes, certainly, you figure out where the waterways are,
and you don't drive tractors through the streams, et cetera.
But then you also have to counter-balance, and this is what I
think we need.
The Forest Service and others need to use the NEPA on their
side of the issue, on the management side of the issue. What
are we doing by not taking action with forestry, salvage,
either salvage after a fire or ongoing when you have drought,
when you have over-crowding, over-inventory of forests with way
too many trees per acre on the drought?
Mr. Willox, could you touch on a little bit, would Forest
Service actually be able to use NEPA and set a blueprint, not a
NEPA every single time you have to do 100 acres? I mean, that
is just a real great thing for the cottage industry of people
out there preparing NEPA--how many pages do you have in those
two binders there? It must be, what, 400, 500?
Mr. Willox. Oh, close to 1,000.
Mr. LaMalfa. Is there 1,000 in that?
Mr. Willox. There are 500 in that one and 500 in that one,
front and back, small print.
Mr. LaMalfa. If we were to open to that, to anywhere, and
just pick, say, two-thirds of the way through, what would two
lines say in there? Would they say anything that actually meant
anything? How can you put that many words in a binder that
actually mean something on managing a forest, or managing a
levee, or building a highway? What words can you come up with?
Mr. Willox. This particular page is talking about school
districts and their enrollment on the social economic part of
it, but I can assure you that the social economic part is
smaller than the air quality analysis.
Mr. LaMalfa. Is that all boiler plate they use from CEQA,
or NEPA to NEPA document? Or do they have to reinvent it every
time they have something that might be near a school district?
Mr. Willox. It is reinvented for the school district,
specifically.
But going back to your original question on the forest, if
you have a forest plan that you can manage an entire area under
a document, then you would not have to do individual, small
ones, you could take a broader landscape approach view to how
you should do forest health, because it is inter-related.
You could do one in the front range of Colorado. You could
do one for the southern Wyoming and then be able to harvest
that.
Mr. LaMalfa. Like we have in California, the northwest
forest plan.
Mr. Willox. Yes, absolutely.
Mr. LaMalfa. So, it is supposed to be regional, you would
have a blueprint to do anything you need to do, without having
to stop the works.
Again, when you are getting back to timber salvage----
Mr. Willox. Correct.
Mr. LaMalfa [continuing]. You are losing the time, the
window to salvage that timber. Now it has become useless. And
there is not enough money in any Treasury to do all the
millions of acres that need to be done at a non-profit level.
And that is the sad thing with all this.
Mr. Willox. I think the thing that the NEPA process causes
a problem for is sometimes there is an emergency or a short-
term situation that you need to get in there in a reasonable
time, and the current time frame that we exist under sometimes
does not allow it to be reasonable to get in there, let alone
even allow it to be in there.
Mr. LaMalfa. Well, thankfully, I also have Lake Oroville,
where the spillway broke this last February, and we were able
to put aside some things because it was an emergency
threatening downhill communities, and maybe the integrity of
the dam. But again, we are losing opportunity to make the area
safer.
Maybe, Mr. Bridges, you would like to touch on this a
little bit. We had a lot of great jobs that were being done up
there on the dam recovery, as well as a potential project
called Highway 70 south of Oroville and Butte County, which
would be the last link to actually have four lanes all through
a fairly populous county. Yet, my understanding of the cost is
it is going to be $30 million to do a combined NEPA and
California CEQA environmental document to add a couple lanes to
an already-existing highway. It is already there. No new sin is
being committed. More lanes and anywhere from 2 to 4 more years
of study. Please touch on what that means, as far as getting
the work done and getting the jobs out there.
Mr. Bridges. It sure sounds like a lot for what you are
describing, just to add a couple of lanes. It just seems that
would impact, that is all going to be running through
California's budget.
Mr. Westerman. The gentleman's time has expired.
Mr. LaMalfa. Federal money and state money, yes.
Mr. Westerman. The Chair now recognizes the gentlelady, Ms.
Bordallo, for 5 minutes.
Ms. Bordallo. Thank you, Mr. Chairman. I apologize for
being late. I had another committee hearing.
Ms. Bear, I have a question for you. Thank you for your
career of service under both Republican and Democratic
administrations at the White House Council on Environmental
Quality.
The U.S. Department of Defense is among our largest Federal
management agency. Can you please speak to the role the NEPA
process plays in holding the Defense Department accountable to
concerns raised by local communities?
Ms. Bear. Sure. The military services, in my experience
while I was at CEQ, there are some exceptions to this, but as a
general rule, they are some of the most efficient agencies in
implementing NEPA. But it is critical to the communities around
installations and bases that they do so.
And I had a number of experiences with private citizens--
this is not an area, frankly, where either trade associations
or a lot of public interest groups tend to focus. But private
citizens in the communities around military installations focus
a lot on what changes are going to be impacting their
businesses and quality of life.
And just to give a short example, a lady called me one day
at the CEQ. She had never heard of NEPA until the week before
she called me. And that is true of a lot of citizens, they are
not familiar with the law until something happens to bring it
to their attention. She ran a small recreation business in New
Mexico. I think it was near a mountain range, and there was a
lot of recreation. And part of the base was also used for
recreation.
Long story short, she found our regulations. She told me
that she read the entire booklet of regulations out loud to her
husband while they were driving back from Las Vegas. They were
still married at the end of the trip, which I thought was
interesting.
But seriously, she was so excited to learn that there was a
framework where she could talk to the Air Force, and that they
had to respond to her about the changes they were proposing,
which were going to reduce recreation opportunities, that she
would have a chance to have input into that.
That is just one example. There are a lot of examples in,
of course, Hawaii and other places in the Pacific, where it is
certainly critical.
Ms. Bordallo. Thank you. I have another. Do you see a
connection between enactment of the National Environmental
Policy Act, the NEPA, in 1970 and better public health and
environmental safeguards at U.S. military installations today?
Ms. Bear. Yes. I think the passage of NEPA and some of the
other laws that were passed in the 1970s have done a lot to
raise the military consciousness, and again, this is a wild
generalization, but a lot of installations on bases try very
hard to be good environmental citizens, but that was spurred by
the passage of those laws.
Ms. Bordallo. Right. I just have a comment to make, Mr.
Chairman. On Guam, more than one-fourth of the island is U.S.
Department of Defense land. The NEPA is oftentimes the only
mechanism for the public to have a seat at the table so their
voices are heard.
Absent the NEPA process, those on Guam lacking on-base
access privileges would have no way of influencing or even
knowing about decisions made by the Defense Department
affecting our island. I just wanted that information to get to
you.
And I think that is just about it. I have one more
question. Do I have any time? All right.
Do you agree that the NEPA process generally results in
well-planned projects, and ultimately more responsible Federal
decisions for taxpayer resources?
Ms. Bear. Generally, yes.
Ms. Bordallo. Yes. All right. Thank you, Ms. Bear.
And thank you, Mr. Chairman. I yield back.
Mr. Westerman. The gentlelady yields back. The Chair now
recognizes the gentleman from Louisiana, Mr. Graves, for 5
minutes.
Mr. Graves. Thank you, Mr. Chairman. Thank you all for
being here. Ms. Bear, thank you for your government service
over many years.
I have a question. The National Environmental Policy Act
applies to projects that involve Federal dollars, Federal
lands, or events when Federal waters, for example, may be
impacted. If those criteria are not met--I believe there are
four criteria, as I recall, in terms of triggering the
application of NEPA.
So, for example, if a private entity, if a state entity, or
a local entity wanted to carry out a project that did not cross
those thresholds, would NEPA apply?
Ms. Bear. No.
Mr. Graves. OK, so in most instances NEPA would not apply.
Mr. Chairman, I think it is important to point out that the
majority of projects that are carried out across this Nation do
not go through a NEPA process. And the reason I point that out
is because there were some comments that were made earlier that
suggest, I think the question was asked if NEPA were eliminated
what would happen. And that question was somewhat bizarre, and
I think it was unfair, because it is based upon a premise that
our local governments, our state governments don't care about
the environment. And I refuse to believe that.
As a former state government employee, I spent much of my
life working on efforts to find the right balance. In fact, I
would argue that we probably did more to restore our coastal
resources in Louisiana than anywhere else in the United States.
It is fascinating to me that that seems to be lost.
So, I want to say it again: The majority of projects
carried out across the United States, NEPA does not apply. And
in many cases, there are public engagement requirements by
local governments, by state governments, and others that would
apply, that would allow for an opportunity for the public to be
engaged in projects.
Ms. Bear, I am not sure if you are familiar, but I believe
you were at CEQ at the time. Following Hurricanes Katrina and
Rita in 2005, CEQ, and I want to thank you to the extent you
were involved, helped work with us and the Corps of Engineers
to negotiate alternative arrangements for compliance with NEPA.
Without getting into all the details, because as I recall it
was a pretty thick document, we were allowed to go through this
IEPR process where we were able to effectively do the
environmental mitigation and quantifying of environmental
impacts after the fact. Most of the environmental groups--in
fact, I am not going to say my memory is perfect, but I don't
recall a single environmental group indicating there were any
problems that resulted from that.
Do you recall that, or other experiences, where alternative
arrangements were worked out?
Ms. Bear. Yes.
Mr. Graves. And where it didn't result in a detriment to
the environment?
Ms. Bear. Yes. There is a provision in the CEQ regulations
to deal with emergencies that allows CEQ to develop alternative
arrangements when normally an environmental impact statement
would be required. That has been used about 37 times or so. I
can submit the list for the record.
And that has been used in a variety of circumstances,
natural disasters, people shooting each other over fishery
management lines--fortunately, that was only one time--but a
wide variety of situations. And that has been done, I did one
in 48 hours that was a critical emergency. A lot of times, most
of the time, frankly, even though it is an emergency, and
people cannot take 2 years or 4 years, or whatever it might
take otherwise, they may need 3 weeks or a month or 6 weeks to
get equipment and engineers and everything.
So, CEQ will take what time is available before action can
be taken, and essentially take the most important elements of
the NEPA process, spend a lot of time on the phone, sometimes
do site visits or public meetings for alternative arrangements
on a very quick basis, and get everybody involved. Not
everybody has always been happy----
Mr. Graves. All right, let me interrupt you there. I am
running out of time, and I have two other points I need to
make.
Number one, Mr. Chairman, every hearing where there is any
degree of relevance, I like to point out the fact that the
Federal Government, our own Federal Government, has caused
2,000 square miles of coastal wetlands loss, and the primary
cause of that loss in the state of Louisiana, surprisingly,
NEPA has been applied in this case, yet our own Federal
Government is the greatest historic ongoing and future cause of
wetlands loss in the United States, as a result of how the U.S.
Army Corps of Engineers manages the Mississippi River system
and its resources.
They have done nothing, absolutely nothing, to mitigate
those losses that they have caused. Efforts by the state of
Louisiana, including nearly $1 billion in Federal funds--excuse
me, in non-Federal funds--that are in the bank today for a
project Mid-Barataria, designed solely to restore the
environment is now being obstructed by the Corps of Engineers
and by NOAA under the auspices of environmental reviews.
Mr. Westerman. The gentleman's time has expired.
Mr. Graves. Five years, let me just make one comment, just
for the record, Mr. Chairman, I know I am out of time.
Mr. Chairman, earlier Mr. Huffman noted that the Keystone
Pipeline had spilled oil. I think it is really important that
we make comments based upon fact. The reality is, when you look
at statistics, transporting oil by pipeline is a safer
mechanism than rail, by boats, and other things, trucks, and
others.
So, while I will not support, obviously, and I don't
support the spilling of oil in any circumstance, I do think it
is important that we discuss facts here. And it is safer to
transport oil by pipeline.
With that, I yield back. Thank you.
Mr. Westerman. The gentleman's time has expired. The Chair
now recognizes the gentleman from Louisiana for 5 minutes.
Mr. Johnson. Thank you, Mr. Chairman. I want to associate
myself with all the comments of my learned colleague from
Louisiana, Garret Graves. We agree on all that.
Thank you to the witnesses for taking your time today to be
here and share your testimony with our Committee. It is
valuable. All of us cannot be here all at the same time, but we
all review the record, and you know how this works, so thank
you.
NEPA has been hailed as the Magna Carta of environmental
law, but its implementation has historically been plagued by
bureaucratic burdens. And you have all offered a lot of insight
on that today. It is important to ensure that the EIS process
is efficient and is free from undue burden as possible.
Unfortunately, the EIS process is extremely time-consuming and
expensive, as we have discussed. The greatest contributor to
the problem arises from appeals in litigation from outside
groups. That is my firm belief. And that, of course, causes
delays and increased cost.
A 2014 GAO report revealed that the average time to
complete an EIS was 4.6 years. Equally as troubling, the
average cost of a single EIS for the Department of Energy is
$6.6 million. At that time, no governmental-wide analysis was
available to calculate an average EIS cost across all the
agencies. But the same GAO report found that less intensive
environmental assessments cost a whole lot less. They are
between $5,000 and $200,000 across all agencies. Furthermore,
the CEQ estimates that EAs take an average of only 13 months to
complete, as opposed to 4.6 years.
Mr. Willox, a couple of questions. The appeals and
litigation are clearly part of the problem with regard to time
and cost. And the question is, are there ways we can work
within the current framework to minimize the delays that add to
the process?
Mr. Willox. Thank you. The litigation one is a hard one to
address, because the law allows that litigation. So, unless you
create some sideboards of what is litigatable, and I think Mr.
Howard had a recommendation that you narrow it to the actual
impacts, not technical things, would be beneficial. And the
fear of litigation is postponing or delaying projects, whether
it happens or not.
I mentioned I have 830 pages of air quality analysis. You
are going to find something in there that you could probably
object to. So, I think that would be one sideboard that would
be helpful.
Mr. Johnson. That is great. Another question. Secretary
Zinke issued a memo in March of this year that raised several
concerns about the NEPA process. I know that has been brought
up today. One of the Secretary's concerns dealt with
transparency in creating EISs, including proper accounting of
time frames, delays, and financial cost of those analyses.
What should be done to address the Secretary's concerns and
foster greater transparency, so that the agencies can be held
accountable for the inefficiency?
Why don't you start with that?
Mr. Willox. Well, public input has been talked about here,
and I don't think you can eliminate public input. But as we put
it, early input is important. Having the local government
officials there early who do represent the public, we are all
elected from that body, as are you. So, having that early and
often as part of the process would be helpful.
I think it is a very transparent process, it is just
cumbersome. This is transparent. It is all here. But how does
the average member of the public do a fair job of commenting on
something that is this large?
I think having more brevity and more succinct EISs would
allow for better comment, so the public can actually know what
is going on, and then provide reasonable alternatives if they
so desire.
Mr. Johnson. I agree with you. Simplicity and efficiency
help with transparency. No one can wade through all this, and
that is part of the problem.
Mr. Howard, one for you. In this effort to increase
transparency, what role does information-sharing between
agencies play in streamlining the NEPA process to reduce some
of this duplicative and disproportionate analyses? Do you have
a thought on that?
Mr. Howard. There is an unavoidable complication when you
have a project that has a dozen or more agencies involved. And
I will go back to my one theme: Somebody has to be in charge of
the process, and somebody has to be able to make decisions.
To the transparency point, and I have talked to Secretary
Zinke about these problems, it would be so important to have an
analysis at the beginning of a project about what the effects
of delay of the environmental review will be. In other words,
you need to balance, like we were talking about a forestry
example, the cost of the delay with the benefits you are going
to get from it. There ought to be a rule of reason at the
outset. And they don't do that. It is all about, let's study as
much as possible.
If you really want to do a human-scale effective
environmental review process, you need to actually make
decisions at the outset, and this requires somebody to be in
charge asking how much should we really do here, and what would
be the cost if we waited an extra year or two? Because the
costs often are going to harm the environment.
Mr. Johnson. Thank you for that.
I only have 10 seconds left, so I think I am out of time. I
yield back.
Mr. Westerman. The gentleman yields back. I now recognize
myself for 5 minutes.
I would like to thank all the witnesses for being here
today, and for your testimony.
Mr. Willox, I found your testimony to be particularly
relevant to a situation being experienced by residents in my
home state of Arkansas. In March of 2016, former Secretary of
Energy Ernest Moniz granted Federal eminent domain to a
private, for-profit company by approving the Clean Line Energy
project. This was after Arkansas' Public Service Commission,
the legislature, and every member of our Federal delegation
opposed this project.
This electric line will cover a path across private land
through Arkansas' Ozark Mountains, a river valley, and delta
regions, which are some of the most beautiful and productive
land our state has to offer.
I said all of that to say this: Some of the struggles and
headwinds that Clean Line faced from hundreds of private
property owners and the Arkansas Public Service Commission
could have been avoided by running the transmission line
through one property owner, the Ozark National Forest.
[Slide.]
Mr. Westerman. And if you look at the map, you see the red
line, and all that green just north of the red line is Ozark
National Forest.
Like Mr. Willox mentioned in his testimony, Clean Line
declined to do this, citing the overly burdensome and
bureaucratic red tape they would face in that situation. I find
this to be very two-faced of a government formed to protect the
rights of the governed. On the one hand, the rules are so
onerous that developers don't even consider Federal land, and
on the other hand, the same government sanctions the
unprecedented confiscation of private property by a private
corporation.
Mr. Willox, when did you first notice that industry was
beginning to re-route projects to avoid any type of Federal
land?
Mr. Willox. It has been ongoing for some time. The power
line that I cite in my testimony is actually a fellow
commissioner that does it for a living, and he is constantly
re-routing stuff. You see it in pipelines. Many times you will
see a pipeline go and it just does 360s to go around Federal
ground, imposing a burden on private property rights, which I
think is a pertinent point that you make.
That seems to be incongruent with what we want to have
happen, as let's have the Federal Government say no so we can
impose it on the private property owner. And that seems to be a
problem, and not right.
Mr. Westerman. I want to shift gears a little bit and talk
about NEPA and how it specifically relates to forestry. Being a
forester, I have never really understood why NEPA is so
complicated for forestry projects.
I think back to when I was in forestry school, and I had a
classmate who was actually an instructor at the Yale School of
Medicine. He decided to come over to the forestry and
environmental school and learn forestry, and he made an
interesting observation one day. He said that in forestry,
trees are like people, and foresters are like doctors. He said,
``Foresters apply the best science to keep trees and forests
healthy.'' That is really what forestry is.
Forestry is not clear-cutting. Forestry is not just about
producing timber, which, by the way, is the most
environmentally friendly material we have. Forestry is about
forest health and conservation. Foremost, that is what it is
about.
And we know that actions do speak louder than words. Since
NEPA, instead of forest science, the controlling factor in
management of the forest has been NEPA. Our Federal timber land
health has suffered greatly since that has happened. Of our 193
million acres of Forest Service land, 80 million right now,
according to the Forest Service, are subject to catastrophic
wildfire. And we saw over 8.5 million acres go up in flames
just this year.
We have heard how NEPA only delays 1 percent of projects,
but, Ms. Bear, can you give me just one modern example where
NEPA has made a forest healthier, or not delayed science-based
forest management practices from being implemented?
Ms. Bear. Actually, Congress passed a law, I am not going
to get the year right, but I am thinking it was about 2005,
called the Healthy Forest Act, which was designed to address a
lot of the concerns that you raised, and it has an expedited
process for addressing a lot of those concerns.
Mr. Westerman. That process has not been used.
A quick question, Mr. Howard. Does the current NEPA process
work for the common good of the forest?
Mr. Howard. There are benefits to the current NEPA process.
I think the review is important. But it is undermining the
common good by taking too long and being too inaccessible to
real people.
Mr. Westerman. I am out of time. I recognize the Ranking
Member, Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman. I ask for unanimous
consent to enter into the record the following materials: a
letter from the Labor Council for Latin American Advancement,
an organization composed of union members representing 2
million unionists in this country, supporting a strong NEPA;
The City Project, GreenLatinos also submitted a letter; a
letter from 29 conservation groups opposing this Committee's
attacks on NEPA and requesting additional funding for NEPA
implementation and reinstatement of NEPA climate change
guidance; and a memo from the Center for American Progress
debunking the false claims made in the Common Good report,
``Two Years, Not Ten.''
With that, thank you, Mr. Chairman, and I ask unanimous
consent to submit those for the record.
Mr. Westerman. Without objection.
I would like to thank the witnesses for their valuable
testimony, and the Members, there are only three of us still
here, for their questions.
The members of the Committee may have some additional
questions for the witnesses, and we will ask you to respond to
those in writing.
Under Committee Rule 3(o), members of the Committee must
submit witness questions within 3 business days following the
hearing by 5:00 p.m., and the hearing record will be held open
for 10 business days for these responses.
If there is no further business, without objection, the
Committee stands adjourned.
[Whereupon, at 12:22 p.m., the Committee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Rep. Denham Submissions
Prepared Statement of the Hon. Jeff Denham, a Representative in
Congress from the State of California
In the 114th Congress, I introduced H.R. 2497, the NEPA Reciprocity
Act. This legislation proposed changes to Title 23 of the United States
Code to create a program for alternative environmental reviews and
approvals whereby state law would substitute for Federal laws in
certain circumstances. A state could apply if they are able to
demonstrate that a state environmental review law is equivalent to or
more stringent than NEPA.
Under this process, California projects (if accepted into the
program) could bypass a duplicative and redundant second layer of
review, dramatically streamlining the project delivery process. A
participating state could manage the program with approval of the
appropriate Secretary and exercise the program on behalf of local
governments for local projects. Flexibility of this kind would expedite
the permitting process in constructing important infrastructure
projects faster, saving taxpayer dollars and growing the economy.
This legislation was the genesis for Section 1309 of the Fixing
America's Surface Transportation (FAST) Act, titled Program For
Eliminating Duplication of Environmental Reviews. This section of the
law established a pilot program at the Department of Transportation
very similar to my bill. The project allows up to five states to
substitute statewide environmental review laws for NEPA in respect to
transportation projects, if they meet certain criteria.
Please notice that substituting NEPA reviews with state
environmental review laws is a different concept from allowing states
to be delegated NEPA authority, which currently occurs.
Although this was already signed into law, we do not yet have
concrete results since the project is not yet underway. The comment
period for the proposed rule just closed yesterday. However, state
interest, especially from California, has already been significant.
______
Prepared Statement of American Road & Transportation Builders
Association
On behalf of the American Road & Transportation Builders
Association (ARTBA) and its more than 7,500 member firms and public
agencies nationwide, the association would like to thank Chairman
Bishop and Ranking Member Grijalva for holding today's hearing on
``Modernizing NEPA for the 21st Century.''
ARTBA, now in its 117th year of service, provides federal
representation for more than 7,500 members from all sectors of the U.S.
transportation construction industry. ARTBA's membership includes
private firms and organizations, as well as public agencies that own,
plan, design, supply and construct transportation projects throughout
the country. Our industry generates more than $380 billion annually in
U.S. economic activity and sustains more than 3.3 million American
jobs.
ARTBA members must directly navigate the regulatory process to
deliver transportation improvements. As such, they have first-hand
knowledge about specific federal burdens that can and should be
alleviated. Because of the nature of their businesses, ARTBA members
undertake a variety of activities that are directly impacted by the
National Environmental Policy Act (NEPA). ARTBA supports NEPA and
realizes it is an integral component of the transportation planning
process. Many, if not all, of the significant environmental
achievements of the transportation community and ARTBA members would
not be possible without NEPA.
ARTBA recognizes that regulations play a vital role in protecting
the public interest in the transportation project review and approval
process. They provide a sense of predictability and ensure a balance
between meeting our nation's transportation needs and protecting vital
natural resources. These goals, however, do not have to be in conflict.
The most successful transportation streamlining provisions have been
process oriented and have essentially found a path for regulatory
requirements to be fulfilled in a smarter and more efficient manner.
According to a report by the U.S. Government Accountability Office
prior to the enactment of MAP-21, as many as 200 major steps were
involved in developing a transportation project, from the
identification of the project need to the start of construction. The
same report also shows it typically takes between nine and 19 years to
plan, gain approval of, and construct a new major federally-funded
highway project. This process involves dozens of overlapping state and
federal laws, including: NEPA; state NEPA equivalents; wetland permits;
endangered species implementation; and clean air conformity.
Further, project delays carry severe financial consequences.
According to a 2016 report by the Texas A&M Transportation Institute,
project delay is estimated to cost $87,000 per month for small projects
(e.g., reconstruction), $420,000 per month for medium-sized projects
(e.g., widening) and $1.3 million per month for large projects.\1\ Both
political parties recognized that the current system was simply too
long and too expensive a way to deliver transportation projects that
improve mobility and safety. As such, finding meaningful ways to
expedite this process has been a congressional priority for more than
15 years.
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\1\ ``Assessing the Costs Attributed to Project Delay During
Project Pre-Construction Stages,'' Texas A&M Transportation Institute,
March 2016, available at: https://static.tti.tamu.edu/tti.tamu.edu/
documents/0-6806-FY15-WR3.pdf.
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Significant progress was made on a bipartisan basis to streamline
the permitting and approval process for transportation improvements in
the past four reauthorizations of the federal surface transportation
program: the Transportation Equity Act for the 21st Century (TEA-21) of
1998; the Safe, Accountable, Flexible Efficient Transportation Equity
Act: A Legacy for Users (SAFETEA-LU) of 2005; the Moving Ahead for
Progress in the 21st Century (MAP-21) Act of 2012; and, most recently,
the Fixing America's Surface Transportation (FAST) Act of 2015. Each of
these measures provides valuable insight about the successes and
failures of legislative efforts to reduce delay in the delivery of
needed transportation projects without sacrificing regulatory
safeguards.
Reducing Project Delay
Reducing the amount of time it takes to build transportation
improvements was first addressed in 1998 with the passage of TEA-21.
Efforts to reduce delay in this legislation concentrated on
establishing concurrent project reviews by different federal agencies.
The concept was that multiple reviews done at the same time, as opposed
to one after the other, would reduce the amount of overall time it took
to get a project approved. While this improvement was a step in the
right direction, it had limited impact, as concurrent reviews were
discretionary, rather than mandatory. Thus, it was up to the federal
agencies involved in a project whether or not to take advantage of this
new benefit.
In 2005, SAFETEA-LU sought to further reform the project delivery
process by establishing a wider range of new ways to deliver
transportation improvements. Specifically, SAFETEA-LU gave greater
authority to the U.S. Department of Transportation (U.S. DOT) as ``lead
agency'' during the project delivery process, limited the window during
which lawsuits could be filed against projects, and reformed the
process for determining impacts on historical sites and wildlife
refuges.
SAFETEA-LU represented a far more expansive reforming of the
project delivery process, by addressing the schedule for project
reviews and also factors outside of the process itself which contribute
to delay. SAFETEA-LU also went further than TEA-21 in that some of its
reforms, such as the limitation on lawsuits, were mandatory, as opposed
to optional.
The clear lesson between the 1998 and 2005 surface transportation
bills was that simply giving federal agencies the ability to complete
regulatory reviews in a more efficient manner in no way guarantees that
authority would be utilized. As such, SAFETEA-LU took more aggressive
steps to influence non-transportation agencies into making
transportation project reviews a higher priority.
While SAFETEA-LU's environmental streamlining provisions were a
significant step forward from those enacted in TEA-21, the
transportation project delivery process remained at an unacceptable
pace. As such, both MAP-21 and the FAST Act took project delivery
reform even further, with more tools for reducing delay. In addition to
building upon the concept of ``lead agency'' begun in SAFETEA-LU, MAP-
21 and the FAST Act also included specific deadlines for permitting
decisions as well as a scheduling mechanism to ensure environmental
impact statements (EISs) do not take longer than four years. As with
SAFETEA-LU, however, it is important to note that many of the reforms
made in MAP-21 and the FAST Act were discretionary. The more state and
federal agencies choose to use these reforms, the greater the impact
will be.
Expansion of the Use of Categorical Exclusions
One of the most significant changes to existing law in both MAP-21
and the FAST Act was an expansion of the use of categorical exclusions
(CEs) during the environmental review process. A CE is used when
projects create minimal impacts on the environment. The difference
between a CE and an environmental assessment (EA) or environmental
impact statement (EIS) is multiple years added on to the amount of time
it takes to complete a project review. Under MAP-21, many sorts of
routine projects were automatically classified as CEs, these include
rehabilitation and repair projects, projects within an existing right-
of-way, projects with minimal federal resources and projects undertaken
as a result of an emergency situation. Expanding the use of CEs to
these additional areas enables local governments to have more certainty
as to when a CE can be used and also allows routine projects to be
undertaken without burdensome, unnecessary levels of review.
MAP-21 also called for the development of CE guidelines for
projects being constructed in response to an emergency or natural
disaster. To qualify for CE status, such a project must be of the same
mode/type and in the same right-of-way as the facility it is replacing
and started within two years after the emergency/natural disaster. It
should be noted that MAP-21 also offers states additional flexibility
in emergency situations by allowing the issuance of special permits to
overweight vehicles delivering relief supplies and allows states to use
any federal highway program apportionments other than those dedicated
for local governments to replace transportation facilities damaged by a
national emergency.
Only three months after the emergency/natural disaster CE was
promulgated by the U.S. Department of Transportation (U.S. DOT), it was
put to use in May 2013 when a truck hit the I-5 Skagit River Bridge in
Mount Vernon, Washington. Application of the CE allowed repairs to the
bridge to begin swiftly, and correctly recognized that in times of
emergency, the focus should be on responding as promptly and
effectively as possible. Specifically, in this instance repairs began
within 24 hours after the accident and the bridge was re-opened to
traffic in just 27 days and fully repaired within 115 days.
MAP-21 also created a CE for projects within an existing right-of-
way. This is a logical application of the CE process, as an
environmental review would have already had to be completed in order
for the right-of-way to be obtained. Thus, requiring a second
environmental review for a project within that right of way is
duplicative and adds no additional environmental protection. The Texas
Department of Transportation (TXDOT) noted a Houston widening project
undertaken prior to MAP-21 involving a widening of a four-lane road.
Although no additional right-of-way was required, an EA was deemed
necessary. The EA took three years and cost $100,000. Under MAP-21,
that same project would qualify for a CE and be completed in a fraction
of the time and cost.
NEPA was never meant to be a statute enabling delay, but rather a
vehicle to promote balance. While the centerpiece of such a balancing
is the environmental impacts of a project, other factors must be
considered as well, such as the economic, safety, and mobility needs of
the affected area and how a project or any identified alternative will
affect those needs. Allowing certain types of projects to be classified
as CEs is a very effective way of reducing delay in the review and
approval process, ensuring that projects with minimal environmental
impacts are not put through a needlessly long regulatory process.
Additionally, the current system for processing CEs should be
examined in order to reduce unnecessary delay. Under Section 1315 of
the FAST Act, FHWA, on behalf of the Secretary of Transportation,
developed a programmatic agreement template for CEs as required by the
legislation. The FAST Act specifically states the template was to be
developed for CEs listed in section 771.117(c) of title 23, Code of
Federal Regulations. ARTBA believes the intent of this requirement was
to provide a single, uniform process for processing CEs on the ``c
list'', which now include three previous ``d list'' CEs and associated
constraints. Previously, there were no constraints associated with the
use of ``c list'' CEs except for ``unusual circumstance''. It should be
noted that FHWA already has a 1989 programmatic model for the ``d-
list'' CEs.\2\
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\2\ https://www.environment.fhwa.dot.gov/projdev/docuceda.asp.
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As stated in 23 CFR 771.117(c), ``c-list'' CEs normally do not
require any further NEPA approvals by the FHWA while ``d-list'' CEs
require additional documentation to be sent to a federal agency as
outlined by FHWA's 1989 programmatic model for ``d-list'' CEs. The
purpose of the programmatic agreement template under the FAST Act was
to ensure that with the addition of the three previously listed ``d-
list'' CEs and associated constraints to the ``c-list'' that a template
be developed to provide guidance on how to properly document ``c-list''
CEs which now includes the three CEs with constraints in an efficient
manner.
FHWA did not develop a template for the ``c-list'' CEs as required
by the FAST Act, but one for both the ``c-list & d-list'' CEs. While
there is not a specific issue with a template that covers both the ``c-
list and d-list'' CEs, there is an issue with the template placing
historical ``d-list'' constraints on the use of ``c-list'' CEs and
constraints which are not required under Federal Regulations. The FHWA
developed template is more restrictive and burdensome than the Federal
Regulation for those projects with ``c-list'' CEs and requires more
case by case review by FHWA than what the Federal Regulations require.
This was not the intent of the FAST Act language, nor the intent of
programmatic agreements.
FHWA should be directed to re-examine the FAST Act developed model
programmatic agreement for CEs and remedy the language to fit the
intent of the FAST Act and its underlying regulations.
Delegation of Environmental Review Responsibilities
Under SAFETEA-LU, a pilot program was established allowing five
states (California, Alaska, Ohio, Texas and Oklahoma) to assume the
role of the federal government during the NEPA process. MAP-21 expanded
the opportunity to participate in the program to all states. States
choosing to take part would conduct their own environmental reviews,
potentially saving time as a result of not having to go through
multiple federal agencies.
Of the five states allowed to participate in the delegation pilot
program under SAFETEA-LU, only California chose to do so and was
approved in 2006. Under MAP-21, Texas was approved to participate in
December of 2014. More recently, Ohio applied for the delegation
program in 2015 and has just had its first federal audit while both
Florida and Utah submitted applications last year.
The Committee needs only to look to California and Texas--the two
states which have the longest running NEPA delegation programs--to see
what continued use of the delegation program can achieve. Specifically,
an Oct. 30, 2015, fact sheet published by the California Department of
Transportation demonstrates the following significant reductions in
delay preparing environmental review documents:
Draft EAs have seen a median time savings of 10.7 months;
Final EAs and Findings of No Significant Impact (FONSI)
have seen a median time savings of 11.5 months;
Draft EISs have seen a median time savings of 22.9 months,
and;
Final EISs have seen a median time savings of 130.8
months--nearly 11 years! \3\
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\3\ Available at http://www.dot.ca.gov/hq/env/nepa/pdf/
nepa_assignment_fact_sheet_q33_oct 2015_rev.pdf.
Similarly, the Texas Department of Transportation has (TXDOT)
credited NEPA delegation with increased time savings, a more organized
internal project delivery program and greater predictability.\4\
Further, the Ohio Department of Transportation (ODOT) estimates the
time saved by NEPA delegation will lead to a cost savings of $45
million once the Ohio program is fully established.\5\
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\4\ See Dec. 8, 2015 testimony of Carlos Swonke, Director of
Environmental Affairs, Texas Department of Transportation before the
House Committee on Oversight and Government Reform Subcommittee on
Transportation and Public Assets, available at: https://
oversight.house.gov/wp-content/uploads/2015/12/12-8-2015-
Transportation-Subcommittee-Hearing-on-MAP21-Swonke-TX-DOT-
Testimony.pdf.
\5\ Available at https://www.dot.state.oh.us/NEPA-Assignment/Pages/
NEPA_Assignment _History.aspx.
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Put succinctly, NEPA delegation works. As FHWA stated on Dec. 22,
2016, ``The NEPA Assignment Program reduces duplication, saves time and
resources, and avoids compromising our high standards for protecting
the human and natural environment. Empowering states in this way saves
time and money, making it good government AND good business.'' \6\
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\6\ Available at https://www.transportation.gov/fastlane/
fhwa%E2%80%99s-%E2%80%98every-day-counts%E2%80%99-initiative-
empowering-states.
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Additionally, MAP-21 allows states to also assume control of just
the CE process as opposed to full environmental reviews. TXDOT has
experienced a significant reduction in the time it takes to review CEs
through this partial delegation program. Prior to assuming
responsibility for CE review, the process took about one year. Under
the program, the average time is now less than 45 days. Further, the
documentation requirements have been reduced. CEs which used to span
more than 100 pages are now two-page checklists. Utah has also assumed
control of the CE process under MAP-21 and is now completing CEs in as
little as six days for routine projects. Finally, Alaska has also
assumed responsibility for CEs and is experiencing favorable results
from the program.
While the reason for non-participation thus far by the other states
has varied, potential liability and litigation costs were an overriding
issue, as the state would also be assuming federal responsibilities for
litigation over any project where delegation was used. Still, ARTBA
believes delegation of environmental review responsibilities to states
could be an important tool to save resources and speed project delivery
without sacrificing regulatory safeguards.
Greater Strength for ``Lead Agencies''
SAFETEA-LU established U.S. DOT as the ``lead agency'' for the
environmental review of transportation projects, including ``purpose
and need'' and ``range of alternatives'' determinations. MAP-21
expanded upon this authority by allowing U.S. DOT, as the lead agency
for all transportation projects, to name a single modal administration
as the lead agency in the case of multi-modal projects. The Secretary
of Transportation also may, within 30 days of the closing of the
comment period for a draft EIS, convene a meeting of the lead agency,
participating agencies and project sponsor to set a schedule for
meeting project deadlines. This new authority allowed the U.S. DOT to
be the focal point of the review process, as opposed to a peer on equal
footing with non-transportation agencies.
The basic problem is that the development of a transportation
project involves multiple agencies besides DOT evaluating the impacts
of the project as required by NEPA. While it would seem that the NEPA
process would establish a uniform set of regulations and submittal
documents nationwide, this has not been the case. For example, the
United States Environmental Protection Agency (EPA), Army Corps of
Engineers (Corps), Fish and Wildlife Service (FWS) and their companion
state agencies each require an independent review and approval process,
forcing separate reviews of separate regulations, and unique
determinations of key benchmark issues--such as the purpose and needs
of a project--and requiring planners to answer multiple requests for
additional information. Also, each of these agencies issues approvals
according to independent schedules.
The opportunities to reduce the delay caused by inter-agency
conflict provided by SAFETEA-LU, MAP-21 and the FAST Act in the area of
lead agency are significant. However, these reforms are only effective
to the degree that the U.S. DOT chooses to take advantage of them. In
other words, it is not mandatory that the agency take advantage of any
of the benefits of ``lead agency'' status.
Even as an optional tool, though, ``lead agency'' status is an
important mechanism for improving the project delivery process.
Additional Project Delivery Reforms
MAP-21 also improved project delivery by limiting the time during
which lawsuits may be filed against projects. This concept was also
part of SAFETEA-LU. SAFETEA-LU set a deadline of 180 days after the
issuance of a federal decision on a project for the filing of a
lawsuit. MAP-21 shortened this deadline to 150 days. Establishing a
firm deadline for lawsuits ensures that any possible litigation is
dealt with at the beginning of the delivery process. By addressing
conflicts early, planners then are able to set schedules without fear
of litigation after the deadlines have passed. Further, the deadline
allows conflicts to be heard and resolved sooner, rather than later.
Under MAP-21, project sponsors were allowed to request the
Secretary of Transportation to set an expedited schedule for projects
undergoing an EIS for more than two years. This schedule would ensure
the project's EIS would be completed within two additional years. MAP-
21 also establishes new deadlines for permitting decisions from federal
agencies. If these deadlines are not met, the agencies suffer financial
penalties. It should be noted, however, that these provisions of MAP-21
have not yet been utilized and it remains to be seen how they would
work in practice.
Other Suggestions for NEPA Reform
Encouraging concise NEPA documents: Currently, the EIS process for
a new highway project is a multi-year endeavor. A major reason for this
is the length of the EIS itself, which can literally span multiple
volumes totaling thousands of pages under the current NEPA regulations.
The EIS is meant as a resource for affected members of the
community to gain information about the proposed project. Current EISs
are impossible for many lawyers to understand and completely
inaccessible to community members without any prior training in the
fields of law or environmental consulting. One factor behind lengthy
EISs is the fear of litigation on the part of project developers. In an
effort to anticipate issues which could be used to delay a project
through litigation, project developers have reportedly attempted to
``bulletproof'' their EISs. This results in a document which attempts
to address every possible issue or scenario to arise in connection with
a proposed project no matter the relevance or how likely it is to be a
factor in environmental decision making. The end product of this
process is an EIS which is completely unwieldy and does not serve its
intended purpose.
ARTBA recommends setting a page limit threshold on the length of
EISs that would help them better serve the communities for which they
are intended to be written. It would also force the authors of EISs to
write in clear and more concise terms. Finally, it would reduce the
delay associated with new transportation construction projects by
dramatically cutting down the time needed to complete the final
document.
Integrating NEPA with planning: Another reform ARTBA supports is
integration of NEPA with the transportation planning process. ARTBA has
recommended increased integration of NEPA in both legislative and
regulatory settings repeatedly and the issue is also one ARTBA has
recommended be part of the next reauthorization legislation for the
federal surface transportation program.
For transportation projects, an extensive amount of information is
gathered during the planning process, which often occurs prior to the
actual triggering of NEPA requirements. Allowing information gathered
during the planning process, to the extent it is still current and
relevant, to satisfy NEPA requirements would limit duplicative reviews
and reduce the amount of delay in the NEPA process. If current
information is already available as the result of compliance with
transportation planning requirements, that information should satisfy
NEPA regulations as well. This would increase efficiency and maintain
environmental protection. Duplicative reviews serve no redeeming
purpose as part of the NEPA process, and should be eliminated wherever
possible.
Clear time lines for NEPA reviews: There is no set time limit for
NEPA decisions. When they begin a NEPA review, project planners have no
sense of when the process is going to be completed. Strict, enforceable
timelines for NEPA decisions would add predictability to the NEPA
process and allow project planners to more accurately plan schedules
for environmental review.
However, ARTBA recognizes that a uniform deadline may not work for
every project. In setting NEPA schedules, discussions involving the
lead agency and project sponsor should take place in order to determine
a realistic time frame for the project and allow for project-specific
flexibility.
Still More Work to Do
Unfortunately, a number of the MAP-21 and FAST Act project reforms
mentioned do not have many examples upon which to evaluate their
success. A major reason for this is the uncertainty over long-term
federal funding. Federal funds, on average, support 52 percent of
annual state department of transportation capital outlays for highway
and bridge projects. Uncertainty surrounding the short and long-term
fiscal condition of the Highway Trust Fund continues to have a
significant effect on state transportation planning.
Following the expiration of MAP-21 and prior to the passage of the
FAST Act in December 2015, Congress put in place a series of short-term
program extensions and temporary Highway Trust Fund revenue patches to
keep highway and public transportation funds flowing to the states.
This period of uncertainty led DOT officials in 35 states to publicly
declare their state programs would be impacted by a shutdown of the
federal surface transportation funds. In fact, eight states delayed or
canceled projects valued at $1.9 billion.
The types of projects which require an EIS (and sometimes even an
EA) are complex, multi-year projects. Without the assurance of long-
term federal funding, states were often reluctant to proceed with such
projects. With the FAST Act's assurance that federal investment will be
provided through FY 2020, states will hopefully undertake more long-
term transportation construction projects and we will have a better
opportunity to witness more project delivery reforms in practice.
Still, the long-term stability of the Highway Trust Fund needs to be
addressed to provide states full confidence to undertake large-scale
new transportation improvements.
Conclusion
The transportation sector has made significant strides in the area
of project delivery. Beginning with TEA-21 and continuing through to
the FAST Act, members of both parties have worked together to ensure
our nation's infrastructure continues to improve at a pace matching the
growth of our country. Continuing to streamline the NEPA process for
our nation's infrastructure is essential in assuring the public the
government is making every dollar spent of transportation go as far as
possible without sacrificing necessary regulatory safeguards. ARTBA
looks forward to continuing to work with the Committee on these
efforts.
______
Prepared Statement of the California Agricultural Commissioners and
Sealers Association by Martin Settevendemie, President
Chairman Bishop and Ranking Member Grijalva, members of the
Committee on Natural Resources, thank you for scheduling this important
hearing on Modernizing National Environmental Policy Act (NEPA) for the
21st Century. It is important for the Committee to better understand
the impacts of an outdated NEPA process and the need for reforms.
Fifty-four California County Agricultural Commissioners and Sealers
of Weights & Measures are members of the California Agricultural
Commissioners and Sealers Association (CACASA), a 501 c 6 non-profit
professional organization. Representing all of California's fifty-eight
counties, County Agricultural Commissioners and Sealers of Weights and
Measures have the dual roles of promoting and protecting the state's
food supply, agricultural trade, the environment, public health and
safety, consumer confidence and ensuring an equitable marketplace in
California. California County Agricultural Commissioners and Sealers
are appointed by their respective County Boards of Supervisors. We work
cooperatively with California Department of Food and Agriculture and
Department of Pesticide Regulation, federal and other state agencies,
and stakeholders to implement regulatory programs at the local level
ensuring compliance with applicable laws, regulations, ordinances and
policies.
One of our many responsibilities includes working cooperatively
with Weed Management Areas (WMAs) throughout California. WMAs are made
up of local stakeholder groups and public and private land management
entities. WMAs have proven to be an efficient and effective method for
controlling the spread and impact of invasive plants, including noxious
weeds throughout California. Left unmanaged invasive plants add to fuel
loads that if not properly managed can lead to catastrophic wildfires
and impact their behavior and severity.
The spread of invasive plants in-and-around our nation's national
forests have an impact on wildfires by constantly changing fuel load
properties. The recent devastating series of wildfires in Northern
California that claimed the lives of 43 people, injured hundreds and
destroyed thousands of buildings and homes were undoubtedly fueled by
dry vegetation. The wet winter of 2016 and spring of 2017 spurred plant
growth and this was followed by extreme heat and dry conditions over
the summer of 2017. This unmanaged, dense fuelbed combined with the
diablo winds from the northeast to increase the intensity of the fires
and carried them quickly across the landscape.
The spread of invasive plants can alter ecosystem properties. As
they do, needed management activities must also be altered to timely
control the spread. There are multiple management activities that can
be deployed to reduce risks associated with the potential severity of
wildfires. Some of those activities include; biological control,
treatments such as mechanical thinning and prescribed fires, as well as
herbicide treatments. All activities can help achieve multiple
management objectives. Last year the USFS reported, ``reduced hazardous
fuels (activities occurred) on over 3 million acres of National Forest
System, state, and private lands.''
The varying management activities all come with pros and cons. For
instance, biological control is a critical element of an integrated
pest management (IPM) program which can help to reduce herbicide
applications. However, in some cases professionally applied and
controlled herbicides may be the only practical consideration for very
large infestations. Prescribed fires successfully reduce hazardous fuel
loads but may impact air quality and public safety.
Despite the pros and cons there is simply too much at stake, as
exhibited by the recent northern California fires, to impede management
activities that reduce hazardous fuels in-and-around our nation's
forests. In testimony before this Committee in September 2017 witness
Lawson Fite, American Forest Resource Council testified, ``Our federal
forests, managed by the Forest Service and Bureau of Land Management
(BLM), urgently need active management to reduce the risk of severe
wildfire. At least 58 million acres of national forest are at high or
very high risk of severe wildfire, and over 4.5 million homes are at
risk.''
The USFS reports that the varying management activities work! More
than 1,400 hazardous fuel treatments since 2006 have shown that they
are effective in reducing both the cost and damage from wildfires.
Yet, regulatory, legal and funding impediments exist and projects,
including those managed by WMA's in California to reduce hazardous fuel
loads, are continuing to mount. The USFS estimates eleven million acres
of National Forest System lands located in or near the Wildland Urban
Interface, where homes and communities are present, would benefit from
fuel treatments that reduce risks to wildfires.
A more persistent and long-term impediment to the spread of
invasive plants and management activities to reduce hazardous fuel
loads in, near National Forests is that most forestry projects are
subject to the National Environmental Policy Act (NEPA). NEPA requires
agencies to complete a detailed Environmental Impact Statement (EIS)
for activities ``significantly affecting the quality of the human
environment.'' If activities do not have a significant impact, agencies
can complete an Environmental Assessment (EA). If proposed management
activities are: (1) similar to activities that an agency has already
determined do not have the potential for significant environmental
impacts, and (2) NEPA procedures are already established for proposed
management activities, or (3) Statute does not require an agency
determination for the management activity, a categorical exclusion (CE)
applies and an EIS and EA are not required.
Some of the work carried out by the California County Agricultural
Commissioners has historically taken place on public lands including
USFS-managed lands. About fifteen years ago, the USFS halted most of
the work done by the County Agricultural Commissioners because the
appropriate NEPA documentation had not been completed on many forests.
Since that time very little NEPA analysis has been completed.
California's Sierra Nevada mountains and foothills are a patchwork
of private and federal lands. Threats such as tree-mortality,
catastrophic wildfire, and the spread of invasive species do not
discriminate among landowners or recognize jurisdictional boundaries.
Counties such as Plumas, Sierra, Nevada, Placer, El Dorado, Amador, and
Calaveras have worked diligently over the last several decades,
utilizing shoe-string budgets, to stop the spread of invasive weed
species such as Yellow Starthistle, Spotted Knapweed, and Musk Thistle.
One of the greatest challenges to the efficacy of these efforts has
been the ability of local governments to treat invasive weed
infestations when they occupy both federal and private lands. In many
instances, the lack of NEPA coverage means that the county agriculture
department is required to stop otherwise effective treatments (either
chemical or mechanical) at federal land boundaries, and leave
populations of invasive weeds untouched on federal lands where they
reproduce and re-infest the adjoining private lands. In many instances,
lack of NEPA coverage is the single biggest obstacle to effective
treatment of invasive weed populations in the Sierra Nevada range.
According to information highlighted in a Committee on Natural
Resources Federal Lands Subcommittee hearing earlier this year, the
federal government does not have a lot of data and analytics on NEPA.
In an April 2014 report, ``National Environmental Policy Act, Little
Information Exists on NEPA Analyses,'' the Government Accountability
Office (GAO), said ``Government-wide data on the number and type of
most NEPA analyses are not readily available, as data collection
efforts vary by agency.''
An EIS contains more procedural requirements and more time to
complete according to the GAO. ``Based on the information published in
the Federal Register, the National Association of Environmental
Professionals (NAEP) reported in April 2013 that the 197 final EISs in
2012 had an average preparation time of 1,675 days, or 4.6 years--the
highest average EIS preparation time the organization had recorded
since 1997.''
More recently, the NAEP website shows that in 2016, 312 Draft,
Final, and Supplemental Environmental Impact Statements (EISs) were
published in the Federal Register. The Forest Service published the
most documents with 67 (21% of total), followed by the U.S. Army Corps
of Engineers (37/12%), Bureau of Land Management (30/10%), Fish and
Wildlife Service (18/17%), and Federal Highway Administration (16/5%)
(based on information in the U.S. Environmental Protection Agency (EPA)
database of EISs.
In addition, in their 2016 NEPA Annual Report, NAEP reported that
``the average time to prepare the 177 Final EISs issued in 2016
(measured from Notice of Intent to Final EIS) was 5.1 years. This
continues the recent trend of increasing Final EIS preparation time.
The average time to prepare the Draft EISs issued in 2016 again showed
signs of a decreasing trend. Seventeen percent of Final EISs were
prepared in two years or less, a small increase from 2015.''
We are aware of one project on the Shasta-Trinity National Forest
requiring an Environmental Analysis that has taken eight years to
complete. The 100+ acre noxious weed treatment project still has not
received Final approval. Reasons cited for the delay include lack of
funding, use of herbicides, adding additional alternatives and re-
prioritizing projects.
Preparing an EIS also comes at a cost. In their 2014 Report GAO
found that the Department of Energy (DOE) tracks the funds it pays
contractors to prepare NEPA analyses (excluding the time spent by DOE
employees). ``The average payment to a contractor to prepare an EIS
from calendar year 2003 through calendar year 2012 was $6.6 million,
with the range being a low of $60,000 and a high of $85 million.''
Knowing about significant environmental impacts is vital but the
processes to discover those impacts should not impede progress on
controlling biological challenges. Invasive plants and grasslands
continue growing with no regard to a NEPA EIS or EA being completed.
Any government program dealing with biology and nature that is under-
managed, untimely and/or inconsistently or inadequately funded will
result in profound consequences. In this case, and as has been
witnessed in the recent California wildfires, the fires behaved
differently and burned more intensely and spread quicker.
Only a few National Forest managers in California have completed
the NEPA analysis required to employ Integrated Pest Management (IPM)
methods for invasive noxious weed control. Multiple statutes have been
developed over the last sixty years emphasizing the need to control
invasive species, but little has been done to follow through with NEPA
completion.
The National Forests surrounding the Tahoe (El Dorado, Lake Tahoe
Basin MU, Plumas) all have completed invasive plant NEPAs that allow
them to use herbicides. The Tahoe, despite having significant issues
with musk thistle, has refused to consider any options other than
mechanical control. This approach has resulted in a limited success
over 20+ years of ongoing control projects. If the Tahoe National
Forest had completed NEPA when musk thistle was first discovered this
project it would have reduced the significantly burdensome challenge it
remains today. Instead, there is no end in sight to their continuous
mechanical control efforts which draw on federal grant monies that
could be used to fund other projects--and, musk thistle continues to
spread in eastern Nevada, Sierra, and Placer counties.
Sufficient program funding remains a challenge. Many Forest
supervisors would be willing to proceed with NEPA, but program-specific
funding has not been made available. We understand this is a more
broader challenge and Congress and the USFS are working to lessen the
impact of the practice of fire borrowing which impedes progress in
other USFS programs such as hazardous fuel reduction and healthy forest
initiatives.
Another challenge of completing management activities targeted at
hazardous fuel reductions in/near National Forests is NEPA-origin
lawsuits. According to the USFS litigation trends nationally for the
number of cases filed against the Forest Service that contain at least
one NEPA claim between fiscal year 2012 and 2017 have been relatively
steady or decreasing slightly. While the number of NEPA-origin lawsuits
may have slightly reduced in recent years what has not been reduced is
their broad implications that increasingly obstruct progress of
projects.
For instance, the National Strategy and Implementation Plan for
Invasive Species Management clearly demands an IPM method for weed
control and management. Many critical management activities are
impossible to implement if the USFS does not complete NEPA-authorizing
IPM treatments such as chemical, mechanical, and biological invasive
noxious weed control management.
More broadly, in a study published in the January 2014 Journal of
Forestry, ``Twenty Years of Forest Service Land Management Litigation''
(Miner, Malmsheimer and Keele) researchers provided a comprehensive
analysis of USFS litigation from 1989 to 2008. During this period
researchers found that ``1,125 land management cases were filed in
federal court. The Forest Service won 53.8% of these cases, lost 23.3%,
and settled 22.9%. It won 64.0% of the 669 cases decided by a judge
based on cases' merits. The agency was more likely to lose and settle
cases during the last 6 years; the number of cases initiated during
this time varied greatly. The Pacific Northwest region along with the
Ninth Circuit Court of Appeals had the most frequent occurrence of
cases. Litigants generally challenged vegetative management projects,
most often by alleging violations of the National Environmental Policy
Act and the National Forest Management Act. The results document the
continued influence of the legal system on national forest management
and describe the complexity of this litigation.''
The reason that litigants challenge vegetative management projects
based on NEPA is simply because it is easy to do. In their 2014
``Guidance on Best Practice Principles for Environmental Assessments''
report to the Council on Environmental Quality (CEQ), the National
Association of Environmental Professionals (NAEP) explain how they
developed a process to produce Best Practice Principles (BPPs) for
preparing an effective environmental assessment. One of the first steps
taken was to prioritize the 535 positive features NEPA practitioners
identified in a survey as ``features typically associated with adequate
environmental assessment.'' That's right, 535 positive features for an
adequate environmental assessment. Likely each one of the 535 features
is a potential subject for litigation. To their credit the NAEP and CEQ
are working to prioritize these features down to between 15 and 23 best
practices for environmental assessments. However, it still leaves a lot
of interpretations for the U.S. federal court system to settle.
Moreover, NEPA-origin lawsuits do not have to be legally successful
in court to be successful. NEPA-origin lawsuits are often time-
consuming and add to the burden of an already strained U.S. federal
court system.
Without the completion of NEPA invasive noxious or non-native weeds
will continue to proliferate on public and private lands throughout
California threatening the state's critical infrastructure, its
biodiversity, and ecological integrity. County Agricultural
Commissioners (CACs) are also concerned about infestations of serious
weed species such as Scotch Thistle, Musk Thistle, Leafy and Oblong
Spurge, Scotch Broom, and Diffuse and Spotted Knapweeds to name just a
few. These species can seriously reduce the productivity on grazing and
pasture lands, infest hay fields and timberlands, deplete water
resources, make recreational areas almost unusable by the public, and
last but not least displace the very native flora and fauna that the
U.S. Forest Service is obligated to protect.
There are some modernized practices that if continually undertaken
can improve upon the challenges to timely completion of environmental
analyses under NEPA. Two restoration-related categorical exclusions to
promote hydrologic, aquatic, and landscape restoration were approved in
2013;
1. learning networks are established within the agency to promote
adaptive management, focused environmental assessments, and
iterative environmental impact statements; and
2. ``Electronic Management of NEPA'' (eMNEPA) investments have
reduced administrative workload by $7 million per year from
2005 to 2010 and are projected to save $17 million through
2014.
Implementing the new planning rule and improving NEPA will help
land managers focus on collaborative watershed restoration while
promoting jobs and economic opportunities in rural communities.
In addition, more NEPA ``predecisional'' collaborative processes
should be used with a goal of avoiding litigation. Earlier decisions by
collaborative partners helps speed the completion of NEPA processes.
Other ideas to modernize the NEPA process include:
Incentivize MOU's and project grants for quick
implementation of management activities developed by local
collaboratives.
Provide Categorical Exclusions (CEs) under the National
Environmental Policy Act that allow forest management
projects to be quickly prepared, analyzed, and implemented.
A reasonable length of time must be established and
mandated for completion of EAs, CEs and EIS.
Support U.S. Forest Service hiring additional staff that
solely focus on completing NEPA and NEPA-origin lawsuits to
gather required information for USFS attorneys defending
these lawsuits.
Support increases in hazardous fuel reduction programs
line item. A portion of these funds should be set aside
specifically for U.S. Forest Regions to complete NEPA and
management activities such as control of noxious weeds.
The hazardous fuel reduction budget line item specifically
addresses biological challenges. To appropriately address
biological challenges, the hazardous fuel reduction account
should at least remain static and portions of such funding
should be specifically targeted toward abatement of noxious
weeds as a preventative measure to reduce hazardous fuel
buildup and increase risks of wildfires.
The USFS must expedite its work on needed NEPA
documentation for invasive noxious weed control to cover
entire infestations on public land and for all the national
forests in California.
USFS must maintain consistency between forests with regard
to weed policy, project management and better communication
and continued collaboration to leverage limited resources.
Continuing public input in the NEPA process is strongly
encouraged and needed early in the process, before an
environmental assessment begins.
Early input should include itemization and detail of
things that will occur if the proposed project is delayed.
Staff across all federal agencies need NEPA training.
The internal NEPA process needs a designated lead agency.
The lead agency should be authorized to make decisions when
conflicts arise. A defined chain of command is needed among
varying agencies involved in NEPA processes.
Congress should hold oversight hearings on The White House
Council on Environmental Quality (CEQ) guidance on NEPA
processes. These processes require collaboration between
agencies at all levels; County, State, Federal, Tribal.
Collaboration between all agencies is vital early in the
NEPA process.
Federal and State EIS must be completed jointly, not
separately.
If possible, litigation should only be allowed on
material, technical components of NEPA.
We appreciate this opportunity to present our thoughts.
______
Rep. Grijalva Submissions
GreenLatinos,
The City Project,
Los Angeles, California
November 29, 2017
Hon. Rob Bishop, Chairman,
Hon. Raul Grijalva, Ranking Member,
House Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.
Re: Strengthen and Fully Fund NEPA Review to Protect People, Places,
and Values
Dear Chairman Bishop, Ranking Member Grijalva, and Honorable
Members of the Committee:
We appreciate the opportunity to provide written comments for the
Committee's November 29, 2017, hearing on ``Modernizing NEPA for the
21st Century.'' Please accept these comments for the hearing's official
record.
Republican President Richard M. Nixon signed the National
Environmental Policy Act (NEPA) into law with bipartisan support in
1970. NEPA is effective in providing the public and public officials
with the information we all need to make better decisions. ``Thank God
for NEPA because there were so many pressures to make a selection for a
technology that might have been forced upon us and that would have been
wrong for the country,'' according to then-Secretary of Energy James
Watkins (ceq.doe.gov/NEPA). Secretary Watkins, a Navy admiral, served
as Secretary of Energy under Republican President George H.W. Bush.
NEPA has been a proven bulwark against hasty or wasteful federal
decisions by fostering government transparency and accountability. It
has ensured that federal decisions are at their core democratic, by
guaranteeing meaningful public involvement. It has achieved its stated
goal of improving the quality of the human environment by relying on
sound science to reduce and mitigate harmful environmental impacts.
We support strengthening the law, and full funding, to enable fair
and efficient review under NEPA, including the impact of policies and
programs on people of color and low income people. This Congress has
proposed bills that would waive NEPA via legislative categorical
exclusions, limit the scope of environmental reviews to ignore climate
impacts, and reduce government accountability to we the people by
limiting judicial review. These attacks reflect an ideological effort
to eliminate this law and the legacy of bipartisan support for it.
NEPA and other regulations are not the major cause of delay in
infrastructure development and government decision-making. The
Congressional Research Service (CRS) identified causes entirely outside
the NEPA process, such as lack of funding. The U.S. Department of
Treasury concluded ``a lack of funds is by far the most common
challenge to completing'' major transportation infrastructure
projects.\1\
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\1\ Congressional Review Service (CRS), Accelerating Highway and
Transit Project Delivery: Issues and Options for Congress (2011),
www.aashtojournal.org/Documents/August2011/CRSinfrastructure.pdf; Toni
Horst, et al., 40 Proposed U.S. Transportation and Water Infrastructure
Projects of Major Economic Significance, AECOM (2016),
www.treasury.gov/connect/blog/Documents/final-infrastructure-
report.pdf.
NEPA plays a vital role in distributing fairly the benefits and
burdens of environmental policies and programs for all. What the
environmental justice movement has demonstrated is that racially
identifiable communities are at a greater risk of environmental harms,
disproportionately lack environmental benefits, pay a larger cost, and
carry a heavier environmental burden than other communities regardless
of income and class. Latinos are among the strongest supporters of
environmental protection for several major reasons, namely, local
exposure to pollutants, the effects of climate change and pollution on
migrant farmworkers, and the impact of global warming on Latin American
nations. Latinos and other people of color nevertheless are often
marginalized by public officials, government agencies, mainstream
environmentalists, and the media.\2\ Proper enforcement of NEPA can
help address that injustice.
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\2\ See generally Samuel Garcia, Latinos and Climate Change:
Opinions, Impacts, and Responses (Policy Report GreenLatinos & The City
Project 2016), www.cityprojectca.org/blog/archives/43303; Prof. Gerald
Torres & Robert Garcia, Pricing Justice: Carbon Pricing and
Environmental Justice (Policy Report, The City Project 2016),
www.cityprojectca.org/blog/archives/43641; Ariel Collins & Robert
Garcia, Climate is a civil rights and moral issue as well as a health,
economic, and environmental issue (Policy Report, The City Project
2015), www.cityprojectca.org/blog/archives/35499; Environmental Justice
Leadership Forum, Guidance to Incorporate Environmental Justice and
Civil Rights in State Clean Power Plans, https://www.cityprojectca.org/
blog/archives/41618.
GreenLatinos is a national coalition of Latino environmental,
conservation, and civil rights leaders. The City Project's mission is
equal justice, democracy, and livability for all. EarthJustice, a
nonprofit environmental law organization, fights for justice to advance
a healthy world for all. The Urban & Environmental Policy Institute at
Occidental College is an applied research and advocacy center with the
mission of advancing community-driven programs and policies to build
healthy, thriving communities and achieve social, economic, and
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environmental justice.
We urge this Committee in the strongest possible terms to foster
better decisions, improve transparency and accountability, and ensure
taxpayer dollars are invested to protect our health, our people, and
our environment. People of color care about protecting people, places,
and values under NEPA. And we vote.
Very truly yours,
Mark Magana Robert Garcia
President Founding Director-Counsel
GreenLatinos The City Project
Labor Council for Latin American Advancement,
Washington, DC
June 5, 2017
Dear Member of Congress:
On behalf of the Labor Council for Latin American Advancement
(LCLAA), home of the Latino labor movement, we write to strongly oppose
any and all attacks on the National Environmental Policy Act (NEPA).
NEPA provides our communities a voice in some of the most consequential
government decisions, impacting where we work, how we work, and even
the rights and safeguards we have on the job. As Latino workers, we
play a major role in building and maintaining our nation's
transportation and energy infrastructure, the same infrastructure that
allows our country to prosper. In many instances, Latino workers and
working families bear the brunt of federal projects, making our
communities most vulnerable to rushed or ill-planned decisions. An
attack on NEPA is an attack on Latino priorities and our voice, in
particular.
We represent the interests of over 2 million labor unionists, with
50 chapters across the United States. Our members include some of the
most prominent unions in the country, including the United Automobile
Workers (UAW), the United Steel Workers (USW), the American Federation
of State, County and Municipal Employees (AFSCME), the Amalgamated
Transit Union (ATU), the Service Employees International Union (SEIU),
and the Office and Professional Employees International Union (OPEIU)
amongst many others. We recognize that our country is in dire need of
job-creating infrastructure investment but that investment must be used
in ways that serve and respond to the needs of the American public.
This can only happen through a strong and well thought out NEPA
process.
NEPA provides an important voice for Latino workers and working
families as we tend to be among the most impacted by federal projects.
Latino workers account for over 43% of ground, maintenance and
construction workers and up to 75% of agricultural laborers. Our
families live, breathe, learn and play in communities next to federally
funded highways, incinerators, power plants, pipelines, and toxic waste
sites. How these projects are built and how they are run dictate the
quality of our health and safety as workers within those facilities as
well as the health of our families who live near them. We need a say in
how these projects are developed and NEPA provides it.
We consistently use NEPA's public disclosure mandate to learn about
how projects are developed and how they will impact our families. We
use NEPA's public comment opportunities to fight against worker
exploitation and for safer and healthier work places. We also use it to
improve the projects with our trade and local expertise. Overall, we
use NEPA to make projects better; to make jobs better and to keep our
communities safe.
Although NEPA has historically been used to address environmental
priorities, it is also a tool we use to address related but independent
issues that impact labor, immigrant, and human rights. For example,
when a power plant is being developed, we use the NEPA process to
address workers' safety; when an immigration detention center is
planned, we use it to address the lack of healthcare for immigrant
detainees; and when the administration wants to militarize the border
with a wall, we use it to show how pointless and hateful the idea is.
NEPA is an environmental protection statute but it is also a civic
engagement one that we cannot afford to lose.
We are concerned by the increasing volume of attacks on this
critical law. In each of the last three Congresses, we have seen over
160 bills that undermine NEPA by shortening public comment periods and
statutes of limitation, establishing arbitrary deadlines for
environmental review, limiting the consideration of better alternatives
or waiving the law altogether. All in all, these harmful measures give
industry a green light to recklessly build projects without addressing
or even considering how Latino workers, their families, and countless
communities of color will be impacted or disenfranchised in the
process. We ask that you protect and recognize our right to
meaningfully participate in the national infrastructure development
process by defending NEPA and all the safeguards it guarantees.
Therefore, as the home of the Latino labor movement, we urge you to
oppose any efforts that threaten to undermine our voice in government
decisions. We, the workers who contribute so much everyday to building
and maintaining our national infrastructure urge you to protect our
voice in government. Protect NEPA!
Sincerely,
Hector Sanchez, Milton Rosado,
Executive Director LCLAA National President
Labor Council for Latin
American Advancement
(LCLAA) United Auto Workers (UAW)
Eddie Rosario, Carlos Pelayo,
LCLAA New York City Chapter
President LCLAA San Diego/Imperial Counties
Chapter President
American Federation of
State County and Municipal
Employees (AFSCME) Labor Environmental and Political
Activist
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Rep. Bishop Submissions
--Bloomberg Op-Ed, ``Trump Did Something Good This Week,''
by Cass R. Sunstein, August 17, 2017.
--Letter addressed to Chairman Bishop from Thomas F. King
dated November 25, 2017.
Rep. Gosar Submission
--Defenders of Wildlife, Board of Directors and Advisory
Committees List.
Rep. Grijalva Submissions
--Center for American Progress, ``Debunking the False
Claims of Environmental Review Opponents,'' by
Kevin DeGood, May 3, 2017.
--Letter addressed to Chairman Bishop and Ranking Member
Grijalva from 29 conservation groups dated November
29, 2017.
Mr. Howard Submission
--``Red Tape, Not Progress: The Center for American
Progress Defends Bureaucratic Paralysis,'' by the
Common Good dated June 2017.
[all]