[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]




 
  THE WEAPONIZATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT AND THE 
                 IMPLICATIONS OF ENVIRONMENTAL LAWFARE

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

                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                       Wednesday, April 25, 2018

                               __________

                           Serial No. 115-44

                               __________

       Printed for the use of the Committee on Natural Resources
       
       
       
       
       
       
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        Available via the World Wide Web: http://www.govinfo.gov
                                   or
          Committee address: http://naturalresources.house.gov         
          
                             _________ 

                U.S. GOVERNMENT PUBLISHING OFFICE
                   
 29-883 PDF              WASHINGTON : 2018       
 
 
 
 
 
          
                     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                 Ruben Gallego, AZ
Scott R. Tipton, CO                  Colleen Hanabusa, HI
Doug LaMalfa, CA                     Nanette Diaz Barragan, CA
Jeff Denham, CA                      Darren Soto, FL
Paul Cook, CA                        A. Donald McEachin, VA
Bruce Westerman, AR                  Anthony G. Brown, MD
Garret Graves, LA                    Wm. Lacy Clay, MO
Jody B. Hice, GA                     Jimmy Gomez, CA
Aumua Amata Coleman Radewagen, AS    Nydia M. Velazquez, NY
Daniel Webster, FL
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR
Greg Gianforte, MT
John R. Curtis, UT

                      Cody Stewart, Chief of Staff
                      Lisa Pittman, Chief Counsel
                David Watkins, Democratic Staff Director
                                 ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, April 25, 2018........................     1

Statement of Members:
    Bishop, Hon. Rob, a Representative in Congress from the State 
      of Utah....................................................     1
        Prepared statement of....................................     2
    Grijalva, Hon. Raul M., a Representative in Congress from the 
      State of Arizona...........................................     3
        Prepared statement of....................................     4

Statement of Witnesses:
    Coleman, James, Professor, Southern Methodist University, 
      Dedman School of Law, Dallas, Texas........................    37
        Prepared statement of....................................    38
    Greczmiel, Horst, Former Associate Director of NEPA 
      Oversight, Council on Environmental Quality, Fairfax, 
      Virginia...................................................    20
        Prepared statement of....................................    22
        Questions submitted for the record.......................    31
    Hamsher, Melissa, Vice President, Environmental, Health, 
      Safety, and Regulatory, Eclipse Resources Corporation, 
      State College, Pennsylvania................................    14
        Prepared statement of....................................    15
    Watt, Laura Alice, Ph.D., Professor, Department of Geography, 
      Environment, and Planning, Sonoma State University, Rohnert 
      Park, California...........................................     5
        Prepared statement of....................................     7
        .........................................................
        Supplemental testimony, letter submitted for the record 
          dated May 5, 2018......................................    12

Additional Materials Submitted for the Record:
    List of documents submitted for the record retained in the 
      Committee's official files.................................    97

    Submissions for the Record by Representative Bishop
        American Enterprise Institute for Public Policy Research, 
          Statement for the Record by Benjamin Zycher............    66
        Epstein, Richard A., ``A Critique of Current Practices 
          Under NEPA,'' Memorandum for the Record................    69
        Osage Minerals Council, Statement for the Record.........    73
        Ute Indian Tribe, Statement for the Record...............    77

    Submissions for the Record by Representative Grijalva
        Backcountry Hunters & Anglers, April 25, 2018, Letter to 
          Chairman Bishop and Ranking Member Grijalva............    80
        GreenLatinos and The City Project, April 24, 2018, Letter 
          to Chairman Bishop and Ranking Member Grijalva.........    81
        Group of Law Professors, April 24, 2018, Letter to 
          Chairman Bishop, Ranking Member Grijalva, and Committee 
          Members................................................    82
        Group of Multiple Organizations, April 25, 2018, Letter 
          to Chairman Bishop and Ranking Member Grijalva.........    89
        Labor Council for Latin American Advancement, March 13, 
          2018, Letter to Members of Congress....................    92
        Moving Forward Network, April 24, 2018, Letter to Rep. 
          Grijalva...............................................    94
        National Parks Conservation Association, April 24, 2018, 
          Letter to Members of Congress..........................    95

    Submissions for the Record by Representative Huffman
        Point Reyes National Seashore, April 2018, Letters from 
          ranchers and leaseholders printed in the Point Reyes 
          Light..................................................    47
                                     



 OVERSIGHT HEARING ON THE WEAPON-IZATION OF THE NATIONAL ENVIRONMENTAL 
        POLICY ACT AND THE IMPLICATIONS OF ENVIRONMENTAL LAWFARE

                              ----------                              


                       Wednesday, April 25, 2018

                     U.S. House of Representatives

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The Committee met, pursuant to notice, at 2:14 p.m., in 
room 1324, Longworth House Office Building, Hon. Rob Bishop 
[Chairman of the Committee] presiding.
    Present: Representatives Bishop, McClintock, Thompson, 
Tipton, LaMalfa, Cook, Westerman, Hice, Webster, Bergman, 
Cheney, Johnson; Grijalva, Sablan, Huffman, Lowenthal, Beyer, 
Gallego, Barragan, Soto, and McEachin.

    The Chairman. All right. We will call this Committee 
meeting to order. We are here today to hear testimony on the 
weaponization of the National Environmental Policy Act, and 
implementations of environmental lawfare. Great words.
    Under Committee Rule 4(f), any oral opening statements are 
limited to the Chairman and the Ranking Member. This will allow 
us to hear from witnesses sooner. Therefore, I am going to ask 
unanimous consent that any other Members' opening statement be 
part of the hearing record if it is submitted to the 
Subcommittee Clerk by 5:00 p.m. today.
    If there are no objections, that will be so ordered.
    All right, let me first recognize myself for 5 minutes, as 
we start this particular hearing.

STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    The Chairman. Today, this Committee is meeting to discuss 
the National Environmental Policy Act, a law that has been 
interpreted and administered far differently than Congress 
intended when it was created in the 1970s. It shows you what 
happens when we write vague and ambiguous language that can be 
defined not by congressional intent, but by litigation and 
courts and ad hoc decision making of agencies operating out of 
a fear of the next lawsuit for projects that are going to be 
large and/or small.
    As a result, we have an ever-expanding coagulation--you 
guys actually wrote ``coagulation'' for me?----
    [Laughter.]
    The Chairman [continuing]. Coagulation of regulation, 
guidance, and caselaw. As it has grown, NEPA compliance has 
become more complex, expensive, and time-consuming for agencies 
and the public.
    For example, we now average 5 years to prepare the average 
environmental impact statement. That is 675 days longer than 
the average was in 2000. Even an environmental impact statement 
will still run tens of thousands of pages and take a decade to 
complete. Even something shorter than that can still be in the 
thousands of pages, which simply means it makes a total mockery 
of CEQ's suggestion that complex EISs should be no longer than 
300 pages. And it puts the United States at a total competitive 
disadvantage with other western countries.
    The NEPA process that we have today is not a product of 
design, it is not a product of careful planning, it just kind 
of happened through cycles of litigation, over and over again. 
NEPA was never intended to be a weapon for litigants to force 
delays and denials on all sorts of activities with a Federal 
nexus. But the NEPA, as it is being implemented, provides just 
that.
    In fact, environmental reviews should inform governments of 
the actions they need to take, not paralyze it. And that is 
what is happening today.
    My hope is, with this hearing, to pause, take a step back, 
and examine through the witnesses' testimonies how NEPA has 
been weaponized by vexing litigation and begin to identify ways 
to restore it to its original intent.
    With that, I will ask that the entire statement I have be 
submitted into the record under unanimous consent and yield 
back my time.

    [The prepared statement of Mr. Bishop follows:]
   Prepared Statement of the Hon. Rob Bishop, Chairman, Committee on 
                           Natural Resources
    Today, the Committee meets to discuss the National Environmental 
Policy Act, a law that's been interpreted and administered far 
differently than what Congress intended by its creation in 1970.
    Due to NEPA's vague and ambiguous language, the law's purpose and 
administration has largely been defined not by congressional intent or 
agency rulemaking, but rather litigation, court rulings, and ad hoc 
decision making of agencies operating out of fear of the next lawsuit 
for projects large and small.
    As a result, the NEPA process is now an ever-expanding coagulation 
of regulation, guidance, and caselaw. As it's grown, NEPA compliance 
has become more complex, expensive, and time-consuming for agencies and 
the public. The average environmental impact statement now takes 5 
years to prepare, 675 days longer than the annual average recorded in 
2000. An Environmental Impact Statement for a large-scale 
infrastructure project can run into the tens of thousands of pages and 
take a decade to complete. Even, shorter environmental assessments now 
routinely number in the thousands of pages. This makes a mockery of 
CEQ's suggestion that complex EISs be no longer than 300 pages. It also 
places the United States at a competitive disadvantage in comparison to 
other western countries like Canada, Germany, and Australia, who can 
complete most large environmental reviews within 2 years.
    The NEPA process is not the product of deliberate design and 
careful planning. It is a result of legal accretion. The outcome of 
repeated cycles of litigation and increased regulation. It was intended 
by Congress to be a mechanism for inter-agency coordination. It created 
a framework for Federal agencies to take into consideration the 
significant environmental impacts of ``major Federal actions.'' NEPA's 
drafters never anticipated that it would become the basis for thousands 
of lawsuits and administrative challenges.
    Nowhere does NEPA's text provide private parties with a right to 
challenge agency determinations in court. It was not intended as a 
weapon for litigants to force delays and denials on all sorts of 
activities with a Federal nexus. In its current form, NEPA provides 
just that.
    Faced with the credible threat of expensive and time-consuming 
litigation, agencies attempt to ``bulletproof'' their environmental 
impact statements, adding to the volume of paperwork without improving 
the quality of the review. ``Analysis paralysis,'' the seemingly never-
ending search for complete information, is a common phenomenon as 
agencies attempt to evaluate every potential impact or hypothetical 
factual scenario no matter how minimal or unlikely.
    Countless provisions have become law to streamline at least some 
aspect of the environmental review process or carve out particular 
classes of projects. In the executive branch, successive 
administrations from both parties have sought to improve NEPA failures 
administratively, to no avail. However, we've failed to address the 
underlying problem: the law itself.
    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. Environmental reviews should 
inform government action, not paralyze it.
    My hope with this hearing is to pause, take a step back and examine 
through the witnesses' testimonies how NEPA has been weaponized by 
vexatious litigation and begin to identify ways to restore its original 
intent.

                                 ______
                                 

    The Chairman. With that, I recognize the Ranking Member for 
his opening statement of up to 5 minutes. I did mine in 3 
minutes; see if you can beat it.
    Mr. Grijalva. No, mine is pretty coagulated right now. I 
just have to go forward with it.
    [Laughter.]
    The Chairman. It is damn bloody.
    Mr. Grijalva. It is bloody.

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

    Mr. Grijalva. I want to thank you, Mr. Chairman, and thank 
you and our witnesses for taking the time to be with us today.
    Here we go again: another Republican attempt to undermine 
the National Environmental Policy Act so that companies making 
big private profits on our public lands can do so more quickly.
    My Republican colleagues really cranked up the misleading 
hearing title machine this time for this one, with 
``weaponization of NEPA.'' To be clear, the silencers and 
armor-piercing bullets Republicans tried to sneak into the 
sportsmen's legislation earlier this week were indeed weapons. 
The firearms that extremists used to take over a refuge in 
Oregon, those were real weapons.
    The National Environmental Policy Act is not a weapon, it 
is a shield. NEPA requires our government to assess threats to 
our environment and public health through consideration of 
alternatives and public input. The law protects average 
citizens from an unthinking government, and it is NEPA that is 
under attack at this meeting.
    This hearing will feature overheated rhetoric and unproven, 
irrelevant anecdotes from the Majority side. Before we get to 
that, I would like to lay out a couple of facts.
    Every year, tens of thousands of projects and activities 
are subject to NEPA review. And every year, about 95 percent of 
these projects are handled in a matter of days through the 
categorical exclusion process. Less than 1 percent of these 
projects go through full environmental impact statements, or 
the EIS process. An EIS can take time, but those projects 
requiring an EIS are the most complex and have the most 
potential to affect things like our air or water quality.
    Allowing time for a careful review of these projects is 
warranted. And the mere fact that a project took a decade to 
complete is not evidence that NEPA was the cause of the delay.
    Of course, the review process should move and could move 
much faster if the Majority would stop starving Federal 
agencies of the money and people they need to do their work.
    Of the tens of thousands of projects and activities subject 
to NEPA review, only about 100 lawsuits are filed each year--
100 out of more than 50,000 NEPA reviews each year. That is a 
small fraction of 1 percent. And that fraction of 1 percent are 
simply examples of citizens seeking to hold their government 
accountable, something I would think that my Republican 
colleagues would respect.
    NEPA is not too burdensome and it doesn't lead to too much 
litigation. Our economy is thriving since NEPA was enacted, and 
our environment has gotten much better. NEPA is not a weapon. 
In the vast, dark bureaucracy of the Federal Government, NEPA 
pulls back the curtain and lets the sunlight stream in. If that 
sunlight is a weapon, as my Republican colleagues now claim, 
the only thing that it is killing is bacteria. We need more of 
that, not less of that.
    With that, Mr. Chairman, I yield back.

    [The prepared statement of Mr. Grijalva follows:]
   Prepared Statement of the Hon. Raul M. Grijalva, Ranking Member, 
                     Committee on Natural Resources
    Thank you, Mr. Chairman. And thank you to our witnesses for taking 
the time to be with us here today.
    Here we go again: another Republican attempt to undermine the 
National Environmental Policy Act so that companies making big, private 
profits on our public lands can do so more quickly.
    My Republican colleagues really cranked up the misleading-hearing-
title-machine for this one with ``The weaponization of NEPA.'' To be 
clear, the silencers and armor-piercing bullets Republicans tried to 
sneak into the sportsmen legislation earlier this Congress--are 
weapons. The firearms that extremists used to take over a refuge in 
Oregon--an action most of my Republican colleagues have yet to 
condemn--were weapons. The National Environmental Policy Act is not a 
weapon--it is a shield.
    NEPA requires our government to assess threats to our environment 
and public health through consideration of alternatives and public 
input. The law protects average citizens from an unthinking 
government--and it is NEPA that is under attack.
    This hearing will feature overheated rhetoric and unproven, 
irrelevant anecdotes from the Majority side, so before we get to that, 
I'd like to lay out a couple facts. Every year, tens of thousands of 
projects and activities are subject to NEPA review. And every year, 
about 95 percent of those projects are handled in a matter of days 
though the Categorical Exclusion process. Less than 1 percent of these 
projects go through the full Environmental Impact Statement, or EIS 
process.
    An EIS can take time, but those projects requiring an EIS are the 
most complex and have the most potential to affect things like our air 
or water quality. Allowing time for a careful review of these projects 
is warranted. And the mere fact that this project or that took a decade 
to complete is not evidence that NEPA was the cause for that delay.
    Of course, the review process would move faster if Congressional 
Republicans would stop starving Federal agencies of the money and 
people they need to do their work. Of the tens of thousands of projects 
and activities subject to NEPA review, only about 100 lawsuits are 
filed each year--100 out of more than 50,000 NEPA reviews each year. 
That is a small fraction of 1 percent. And that fraction of 1 percent 
are simply examples of citizens seeking to hold their government 
accountable; something I would think my Republican colleagues would 
respect.
    NEPA is not too burdensome, and it doesn't lead to too much 
litigation. Our economy has thrived since NEPA was enacted, and our 
environment has gotten cleaner.
    NEPA is not a weapon. In the vast, dark bureaucracy of the Federal 
Government, NEPA pulls back the curtain and lets sunlight stream in. If 
that sunlight is a weapon--as my Republican colleagues now claim--the 
only thing it is killing is bacteria; we need more of that, not less.
    With that, I yield back.

                                 ______
                                 

    The Chairman. Thank you. You should have coagulated more.
    [Laughter.]
    The Chairman. Now we are going to turn to our Committee to 
talk about the vision of the 1970s versus the reality of today.
    Our first witnesses are from left to right: Dr. Laura Alice 
Watt, a professor at Sonoma State University's Department of 
Geography, Environment, and Planning, and a member of the 
Resilient Agriculture Group--thank you for being here; Ms. 
Melissa Hamsher, who is the Vice President of Environmental, 
Health, Safety, and Regulatory at the Eclipse Resources 
Corporation--I appreciate you being here; Mr. Horst Greczmiel--
am I close to that--who is a former Associate Director of NEPA 
Oversight at the Council on Environmental Policy--thank you for 
joining us; and then Mr. James Coleman, who is a law professor 
at Southern Methodist University, the Dedman School of Law.
    I appreciate all four of you taking the time and effort to 
travel here to do this. Let me remind you that under our 
Committee Rules, I think you have all been here before, 
anything that you have written is already part of the record. 
This is an oral statement and is limited to 5 minutes.
    The microphones in front of you have to be turned on--make 
sure you do that--and then turned off again.
    The green light is go, the yellow light means you are about 
to get screwed over. And the red light--look, I will apologize 
to all of you here. We have to be back on the Floor right now, 
so I will be leaving quickly. For those of you who are here and 
I am still the Chairman, as soon as it hits five, I am shutting 
you down, regardless. Whoever replaces me in the Chair may be a 
little bit wimpier.
    [Laughter.]
    The Chairman. But for whomever is doing that, I hope not. 
And the only reason we do that 5 minutes is so that we can get 
on and make sure that you have time to answer questions from 
the Committee members, as well. So, I appreciate that.
    We will go from left to right as I am looking at you, 
starting with Dr. Watt. You are recognized for 5 minutes.

STATEMENT OF LAURA ALICE WATT, Ph.D., PROFESSOR, DEPARTMENT OF 
GEOGRAPHY, ENVIRONMENT, AND PLANNING, SONOMA STATE UNIVERSITY, 
                    ROHNERT PARK, CALIFORNIA

    Dr. Watt. Good afternoon, Chairman Bishop, Ranking Member 
Grijalva, and members of the Committee. Thank you for inviting 
me to testify today about the importance of consistency and 
accuracy in conducting environmental review under the authority 
of NEPA.
    I am a professor of environmental history and policy at 
Sonoma State and also an award-winning environmental planner, 
so I speak today both as a researcher and as a practitioner.
    [Slide.]
    Dr. Watt. I have spent 20 years researching and analyzing 
the history of land management by the National Park Service of 
historic working landscapes at the Point Reyes National 
Seashore in Northern California.
    May I have the next slide?
    [Slide.]
    Dr. Watt. This work has recently been published as a book 
titled, ``The Paradox of Preservation: Wilderness and Working 
Landscapes at Point Reyes National Seashore.''
    When Congress created the seashore in 1962, it recognized 
the significance of this working landscape with specific 
provisions to maintain the agricultural land uses within its 
boundary. Yet, since then, actions by Park Service officials 
have gradually eroded the number of working ranches at Point 
Reyes from 25 at the time of establishment to only 11 today.
    Based on my historic research, both agency action and 
inaction have contributed to this decrease. Examples at both 
the programmatic level and the individual ranch level include 
the failure to update the seashore's 1980 general management 
plan--I think I am a little off on the slides--which would 
provide an over-arching vision for the seashore's management to 
give agency actions coherence and consistency.
    This is despite starting a planning process in 1997, and 
actually completing a draft GMP in 2010, but that was never 
released to the public.
    This also includes failure to manage and control an 
expanding population of the reintroduced tule elk, which can 
damage ranch fencing and infrastructure, and threaten the 
organic certification of many of the ranches.
    Another example is the direct cancellation of several 
ranching permits, resulting in serious degradation of historic 
buildings, and increases in fire hazard from unmanaged pastures 
being taken over by invasive brush and weeds.
    Next one.
    [Slide.]
    Dr. Watt. A substantial part of this erosion of the working 
landscape has occurred through the uneven application of NEPA 
by Point Reyes staff.
    And the next one, please.
    [Slide.]
    Dr. Watt. On this chart--oops, I think we are off. One 
more. There we go.
    [Slide.]
    Dr. Watt. On this chart, the shading should line up across 
each row as some proposed change in land use or management 
triggers one or another level of NEPA review.
    But as you can see, in instances involving changes in 
natural resource management like the wetlands restoration, NEPA 
review has been conducted as it should. Yet, in each case 
involving agricultural use, either its removal or its 
continuation, the agency response with NEPA is the opposite of 
what it should be. NEPA has been conducted in cases where no 
land use change would occur, merely a continuation of existing 
use, and has not been conducted in instances of removing 
agricultural or maricultural use, even though these removals do 
cause change, and often substantial change, to the environment.
    These are concrete examples of an agency applying NEPA 
inconsistently when it sees fit, apparently on the basis of 
whether it likes a particular program or project. These 
inconsistencies in NEPA are troubling. They have contributed to 
the uneven treatment of land uses that Congress intended should 
be treated equally.
    Specifically, the 1962 Enabling Act contained clear 
congressional intent to retain the working ranches within the 
seashore's boundary. However, when the Park Service was granted 
full condemnation authority in 1970, the specific attention to 
agricultural lands was removed in the process. While Congress 
passed additional legislation in 1978 to create a procedure for 
ranching families to shift from reservations of use and 
occupancy to leases or permits, it neglected to reaffirm its 
originally expressed intent that working ranches remain 
indefinitely.
    Restating this intention now by amending the seashore's 
enabling legislation would not only help avoid further lawsuits 
by groups interested in forcing ranching out, but would also 
provide important benchmarks for what is considered a 
reasonable range of alternatives for NEPA review in future 
planning processes.
    In closing, I want to strongly advocate for the importance 
of environmental review, as it is often the only moment where 
we stop and at least consider the impacts of our actions on the 
human and non-human worlds around us. Yet, I also want to be an 
advocate for consistency and application of that review.
    Agencies should not scrutinize at one level here, and an 
entirely different one there. The rigor of NEPA review and, 
indeed, whether it is done at all, cannot merely turn on an 
agency's preference, but must serve to implement congressional 
intent for management of all resources. Thank you.

    [The prepared statement of Dr. Watt follows:]
 Prepared Statement of Dr. Laura Alice Watt, Professor, Department of 
 Geography, Environment, and Planning, Graduate Coordinator, Cultural 
     Resources Management Masters Program, Sonoma State University

    Good afternoon Chairman Bishop, Ranking Member Grijalva, and 
members of the Committee. Thank you for inviting me to testify before 
the Natural Resources Committee today about the importance of 
consistency and accuracy in conducting environmental review under the 
authority of the National Environmental Policy Act, or NEPA. For the 
past 12 years I have been a professor at Sonoma State, teaching 
environmental planning as well as environmental history and policy. 
Prior to taking this academic post, I spent 4 years working as an 
environmental planner for EDAW, Inc., in San Francisco, primarily 
contracted to write 20-year Resource Management Plans for several 
northern California BLM offices, one of which--our RMP for the King 
Range National Conservation Area--won an award for ``NEPA Excellence'' 
from the National Association of Environmental Professionals. Hence I 
am speaking today about NEPA from my experiences both as a researcher 
and a practitioner.
    And before agreeing to testify, I took several days to consider 
this invitation, as I am concerned that some Members of Congress might 
be looking for information that could be used to weaken environmental 
regulations and review--as a life-long Democrat and dedicated 
environmental studies scholar, I would not want to contribute to such 
an effort. But I have decided to have faith that good information and 
insight will benefit environmental planning processes, rather than 
cause additional problems. So I am here today in the spirit of 
collaboration, and not as a partisan, to discuss the importance of 
consistency, accuracy, and fairness in agencies' application of NEPA.

    Specifically, I would like to tell you about a subject to which I 
have devoted some two decades of academic research and analysis: the 
history of land management by the National Park Service of the 
historic, working landscapes at the Point Reyes National Seashore 
(PRNS) and the Golden Gate National Recreation Area (GGNRA)'s northern 
district. This work resulted in the 2017 publication by the University 
of California Press of my book The Paradox of Preservation: Wilderness 
and Working Landscapes at Point Reyes National Seashore. Earlier this 
month, I updated my findings, based on developments since my book was 
published, in a presentation to the annual conference of the 
Association of American Geographers.

    What is now Point Reyes National Seashore has always been a 
stunning natural environment: A dark evergreen forest covers the spine 
of Inverness Ridge running up the eastern side of the peninsula, 
contrasting with the pale greens, golds, and grays of the more open 
hillsides that tumble down its western side to the ocean's edge. A 
typical day may bring bright sunshine in the morning, turning to dense 
fog and howling ocean winds by afternoon. But it has also been a 
working landscape for centuries. The native Coast Miwok actively 
managed this landscape through burning and other methods, to maintain 
open grasslands and encourage the species that rely on them. Since its 
earliest settlement by non-native residents--first Mexican rancheros in 
the 1830s, followed by northeastern dairiers in the 1850s--West Marin 
has been a place of pastoral beauty, an unexpected meeting of the wild 
Pacific Ocean with wide expanses of green pastures and white victorian 
ranches. Many of the families working the land have roots that go back 
four, five, or six generations, stemming from several groups of 
European immigrants who together form the region's distinctive 
character.

    Congress recognized the significance of this working landscape when 
it created the Seashore in 1962, with specific provisions to maintain 
the agricultural land uses within its boundary. Yet since the 
Seashore's establishment, actions by PRNS officials have consistently 
eroded the number of working ranches at Point Reyes--from 25 on the 
Point Reyes Peninsula at the time of establishment, to 11 today. On the 
lands owned by the GGRNA but managed by PRNS, the number of working 
ranches has dropped from 19 in 1972 to 8 today, with 6 additional ranch 
parcels leased for grazing. Based on my field research, this is a 
result of both agency intention and neglect. Examples, both 
programmatic and at the individual ranch level, abound, and include:

     Failure (continuing to today) to update the 1980 General 
            Management Plan (despite completing a Draft GMP in 2010 
            that was never released to the public) to provide on over-
            arching vision for the Seashore's management;

     Failure to manage and control the (re-introduced) tule elk 
            population so that it does not damage ranch fencing and 
            infrastructure, and threaten the organic certification of 
            many of the ranches; and

     Pushing several permittees to discontinue ranching and 
            accede to the cancellation of their permits, resulting in 
            serious degradation of historic buildings and increases in 
            fire hazard from unmanaged pastures being taken over by 
            invasive brush and weeds.
    A substantial part of this erosion of the working landscape has 
occurred through the inconsistent application of NEPA by PRNS staff. I 
will describe a few examples, and urge the Committee to refer to the 
chart below showing inconsistencies over time:

     All ranches shifted from Reservations of Use and Occupancy 
            (RUOs) to agricultural leases or special use permits in the 
            early 1990s (except Kehoe, 10 years later) with no 
            environmental review; documents indicate these changes 
            either being categorically excluded or tiering off 1980 
            GMP. This makes sense, because there was no change in land 
            use or management, just a continuation of the status quo. 
            Yet when Drakes Bay Oyster Company (DBOC, formerly 
            Johnson's) anticipated shifting from a RUO to a special use 
            permit in 2012, this change was deemed to require an 
            Environmental Impact Statement (EIS), which was completed 
            without a true no-action alternative--in the sense that a 
            no-action alternative should analyze the continuation of 
            present management--and with what the National Academy of 
            Sciences found were serious and material scientific 
            deficiencies.

     Two ranch permits were canceled in 2000/01 (Horick at D 
            Ranch and Tiscornia at Rancho Baulines), but no 
            environmental review was conducted, despite a major change 
            in land use by removing an operating ranch and allowing, 
            over time, proliferation of non-native vegetation--with 
            dangerously increased risk of wildfire.

     Despite the 1998 Finding of No Significant Impact 
            associated with the Tule Elk Management Plan written that 
            year--which involved relocating nearly 50 animals by 
            helicopter from Tomales Point to the wilderness area near 
            the Limantour Road--in 2008, 2010, and 2013, when ranchers 
            complained about tule elk causing problems on leased 
            ranchlands, NPS claimed the elk could not be relocated 
            without additional environmental review, despite there 
            being functionally no difference between moving animals 
            from Drakes Beach/Home Ranch rather than Tomales Point. 
            (And it's worth noting that in the 2006 Non-Native Deer 
            Removal Plan and EIS, elimination of the non-native deer's 
            economic impacts on the leased ranches was described as a 
            long-term, major beneficial impact.)

     Secretary of the Interior Ken Salazar prompted the NPS to 
            issue 20-year permits to the ranchers in November 2012, yet 
            a year later PRNS announced that a Ranch Comprehensive 
            Management Plan, with associated NEPA review, would be 
            required first, despite the fact that only the length of 
            the permits would change.

CHART OF MAJOR PLANNING EFFORTS AT POINT REYES NATIONAL SEASHORE, 1990-
                    PRESENT
                    
                    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]                   
                    

    .EPSAs the chart shows, since 2000, NEPA review has consistently 
been applied to agricultural lands in cases where no land use change 
would occur, merely a continuation of existing use, and has not been 
conducted for instances of removing agricultural or maricultural use. 
These are concrete examples of an agency applying NEPA inconsistently 
when it sees fit, apparently on the basis of whether it likes a 
particular program or project.
    The most recent example to come to light, just a few weeks ago, is 
the fact that PRNS had completed a full Draft GMP/EIS in 2009, that it 
never released to the public. Park officials have been quoted as saying 
that the DBOC EIS meant that park staff did not have time to work on 
the Draft GMP, yet PRNS completed several large planning efforts--
including the 1998 Elk Management Plan, the 2006 Non-Native Deer 
Management Plan, the 2007 Giacomini Wetlands Restoration Plan, a fire 
management plan, and a trails inventory--during the same time they were 
working on the Draft GMP. Furthermore, the Draft GMP was already 
completed, or very nearly so, when PRNS began work on the DBOC EIS.
    And it was this lack of a completed GMP that was targeted in the 
most recent lawsuit: In 2016, the Arizona-based Center for Biological 
Diversity (CBD) and two other groups filed suit and even brought a 
motion for a preliminary injunction to stop PRNS from renewing any 
permits for ranching at Point Reyes. CBD has long made clear its 
commitment to eliminating the working ranches from Point Reyes so it 
can be re-cast as a wilderness and preserve for the reintroduced tule 
elk. And, earlier this month, the Executive Director for the Idaho-
based Western Watersheds Project, one of the other plaintiffs in the 
lawsuit, penned an op-ed in the San Francisco Chronicle calling for the 
elimination of ranching from Point Reyes, for the same reasons: https:/
/www.sfgate.com/opinion/article/Cattle-grazing-on-Point-Reyes-public-
lands-is-12815606.php. As I wrote on the last page of my 2017 book: 
``[W]hen absolutist environmental organizations sling lawsuits at the 
NPS that explicitly aim to end ranching at Point Reyes, they are 
bringing the legal equivalent of the rifles and threats of the Bundy 
militants to the local community.''
    This suit resulted in a Settlement Agreement, whereby the NPS 
committed to study at least three alternatives for ranching, all of 
which result in the further reduction or elimination of ranching. 
Moreover, the Settlement Agreement gives PRNS until July 2021 to 
complete the process for this required General Management Plan 
Amendment (GMPA) and associated Environmental Impact Statement (EIS). 
While the Settlement Agreement was inked in July 2017, and initial 
scoping meetings were held and public comment solicited in November 
2017, PRNS has yet to issue a Notice of Intent to formally begin 
preparation of the GMPA/EIS--which usually occurs before scoping 
begins, not after. As someone who has conducted Federal public land 
management planning and associated NEPA review myself, it's difficult 
to understand what purpose delaying the Notice of Intent serves, and 
more importantly, why it would take 4 years to complete a GMP Amendment 
and EIS process, covering only a limited portion of the Seashore; in 
contrast, writing the full Resource Management Plan for the King Range 
NCA--an area of roughly the same size with very similar management 
issues to Point Reyes--took just a little over 2 years from start to 
finish.
    These inconsistencies in NEPA and land management planning 
processes are troubling. Congress created the Point Reyes National 
Seashore, and so Congress ultimately bears responsibility for the 
decisions that are made there. If Congress cares about the future of 
this working landscape, it should provide clear direction regarding its 
intended purposes. When working to write the King Range NCA's 
management plan, both the BLM staff and my team as consultants took 
guidance from the law establishing the Area, which gave clear, 
unambiguous direction. In the case of Point Reyes, the 1962 Enabling 
Act also contained clear congressional intent to retain the working 
ranches within the Seashore's boundary. However, when NPS was granted 
full condemnation authority in the 1970 legislation, along with raising 
the land acquisition appropriation, the specific attention to 
agricultural lands was removed in the process. While Congress put in 
place a process for the ranching families to shift from RUOs to leases 
or permits with its 1978 legislation, it did not reaffirm its expressed 
intention that the working ranches remain indefinitely. Restating this 
intention now in the Seashore's enabling legislation would not only 
help avoid further lawsuits, but would provide useful benchmarks for 
what is a reasonable range of alternatives to consider for NEPA review 
in the current GMPA/EIS process. Prompt passage of a narrowly tailored 
purposes amendment that preserves the historical and cultural uses of 
ranches and dairies at Point Reyes would finally provide the certainty 
and security of tenure necessary for these wonderful examples of 
sustainable agriculture to continue.
    In closing, I want to strongly advocate for the importance of 
environmental review, as it is often the only moment where we stop and, 
at very least, consider the impacts of our actions on the human and 
non-human worlds around us--and yet I also want to advocate for the 
need for consistency in application of that review. It cannot 
scrutinize at one level here, and an entirely different one there. Its 
rigor--indeed, whether it is done at all--cannot merely turn on whether 
the lead agency ``likes'' a project.
    Furthermore, in my book, I suggest that an environmental thinker 
who deserves more attention in park management is Aldo Leopold, who in 
his pioneering advocacy for wilderness protection also wrote of the 
importance of re-establishing a personal and cooperative relationship 
with the natural world through working the land. For Leopold, visiting 
and admiring is not enough; we need to recognize our reliance on and 
co-existence with the wild through living and working with it. I do not 
want to romanticize ``the local,'' but I also believe that communities 
who are directly affected by a Federal action, be it a project or a 
plan, should have some specific input into how that project or plan 
takes shape--not better than, or above, or before other public comment, 
but simply as a different category of input. NEPA aims to consider 
impacts on the human environment, but too often the near-scale of human 
involvement is sacrificed to the broader scales of national 
implications--whether in regard to maximizing GDP or industrial profit 
on the one hand, or an idealization of environmental purity on the 
other.
    Point Reyes has long been ideally suited to be managed as a 
Leopoldian park, a place where the wild and the pastoral are not in 
competition but are complementary, thriving side by side. The NPS 
itself is beginning to understand this relationship, with some of its 
leaders calling for a greater focus on integrated stewardship, as well 
as ``deepening public engagement and establishing ever-more-meaningful 
connections'' between parks and the communities they serve. Geographer 
David Lowenthal has advised the agency that parks and wilderness areas 
``must begin to exemplify, rather than be set apart from, the everyday 
terrain of our ordinary places of work and play, travel and repose.'' 
Numerous examples of successful management of working landscapes within 
national parks can be found elsewhere around the globe. By building on 
the insight of Aldo Leopold, recognizing that the wild and the pastoral 
can not only co-exist but also strengthen each other, Point Reyes could 
be a powerful model of this evolving stewardship approach.

                                 ______
                                 

      Supplemental Testimony Submitted for the Record by Dr. Watt

                           Sonoma State University,
                                   Rohnert Park, California

                                                        May 5, 2018

    Dear Representatives:

    It has come to my attention that the National Parks and 
Conservation Association (NPCA) has submitted a letter to your 
Committee that, among other statements, takes issue with testimony I 
provided in writing on April 23, 2018, and in person at your 
Committee's hearing on April 25, 2018. Specifically, the NPCA's letter 
alleges that the Resilient Agriculture Group, of which I am a member, 
is ``secretive'' and that my testimony ``lacks credibility on this 
topic and contains factual inaccuracies.'' I am writing to rebut these 
claims.
    To me, it is telling that the NPCA asserts that my testimony 
contains factual inaccuracies, yet the organization provides no 
evidence of such. The same is actually true of Representative Jared 
Huffman's comments during the hearing, in that he stated that he 
``disagreed'' with some of my testimony, but offered no facts or 
information to counter my detailed analysis. While he correctly stated 
that NEPA requirements vary widely with different kinds of projects and 
circumstances, my testimony contains instances of inconsistent review 
at Point Reyes applied to agency actions that are very, very similar, 
if not identical in their scope--such as extending an existing lease. I 
am confident that all information I have provided to the Committee is 
factually accurate and represents a genuine history of uneven 
application of NEPA.
    The suggestion that I lack credibility on the topic of the 
application of environmental review under the authority of the National 
Environmental Policy Act (NEPA) is laughable; as I stated in my 
testimony, I not only teach NEPA and environmental planning regularly, 
I also have four years of experience as an environmental consultant, 
primarily contracted to produce twenty-year Resource Management Plans 
for several northern California BLM offices, one of which--our Plan and 
Environmental Impact Statement for the King Range National Conservation 
Area--won an award for ``NEPA Excellence'' from the National 
Association of Environmental Professionals. This background 
unquestionably gives me credibility on the subject of NEPA.
    Furthermore, I have spent twenty years researching the history of 
land management at the Point Reyes National Seashore (PRNS) and the 
Golden Gate National Recreation Area (GGNRA)'s northern district. This 
work resulted in the 2017 publication by the University of California 
Press of my book The Paradox of Preservation: Wilderness and Working 
Landscapes at Point Reyes National Seashore, as well as several peer-
reviewed articles. Given that my recent testimony focused on NPS 
practices of NEPA review at Point Reyes in the last few decades, I 
believe my archival research and analysis also gives me credibility to 
write and speak about Point Reyes and the uneven application of NEPA 
review for a variety of projects and plans.
    Based on this research, I would also like to correct Representative 
Huffman's statement, made during the hearing, that ``there are more 
acres grazed today than during the 1980 General Management Plan,'' as 
that is not the case. While the 1980 GMP did not include detailed 
tallies of all acres grazed, adding together the acreage in grazing for 
both the Point Reyes peninsula and the GGNRA lands managed by PRNS, the 
total was approximately 30,000 acres in 1980, and has decreased to 
28,000 today. While this reduction is a relatively small portion of the 
total, the number of ranches that have ceased operation in this time is 
much larger: The Point Reyes peninsula supported twenty-five active 
ranches when the Seashore was established in 1962, but has only eleven 
active operations today, or fewer than half. In the GGNRA's northern 
district, the number of operating ranches has dwindled from twenty in 
1972 to eight today, a decrease of roughly sixty percent. A working 
landscape cannot only be measured in terms of acres in grazing, but 
also in terms of the human families and broader community that those 
lands represent, so these reductions are truly troubling.
    The NPCA's claim that the Resilient Agriculture Group is 
``secretive'' is also inaccurate; members of our group have been quite 
open about our membership in the local press, and have been in regular 
correspondence with both the Point Reyes Seashore Ranchers Association 
(PRSRA), representatives of other organizations that support 
environmental quality and sustainable agriculture, and local elected 
officials on the subject of Point Reyes management for months. Anyone 
interested in the membership or the goals of our group only needs to 
ask. We are not currently incorporated formally, but neither are many 
other groups active in commenting on these issues--examples include the 
People for the Golden Gate National Recreation Area, which participated 
extensively in NPS management of both PRNS and GGNRA for decades; the 
Committee to Preserve the Tule Elk, which similarly provides comment 
letters on activities at Point Reyes; and indeed the PRSRA itself.
    Lastly, the NPCA's letter also asserts that ``Dr. Watt is not a 
rancher at the Seashore and does not speak for or represent the 
ranchers''; this statement is puzzling to me, as I have never claimed--
neither in my testimony nor on any other occasion--to be a rancher or 
to represent the Seashore ranchers. In my Congressional testimony, I 
only represented myself as an expert on the subject at hand. I 
similarly have written comment letters to the Point Reyes National 
Seashore in the past, regarding their various planning and NEPA 
efforts, representing only myself and my professional expertise. I 
count many members of the PRSRA as personal friends, and in 2013 their 
organization honored me with a Certificate of Appreciation, which still 
hangs in my office. I am copying the PRSRA on this letter, to ensure 
that they understand that I would never presume to speak on their 
behalf; they are perfectly capable of representing themselves.
    My testimony made clear my strong support for NEPA and the 
environmental review process; in no way have I questioned the need for 
environmental review, nor current planning efforts at Point Reyes. My 
comments called for better consistency in NEPA review going forward, 
based on evidence from the past, and I do not appreciate a national 
environmental advocacy group trying to imply otherwise.

            Sincerely,

                                      Dr. Laura Alice Watt,
                                                         Professor.

                                 ______
                                 

    The Chairman. Thank you. You did that with 6 seconds to 
spare, thank you.
    I am going to apologize that I have to leave. I think, Mr. 
Thompson, you are going to take my place. Now I recognize Ms. 
Hamsher for your 5-minute testimony.
    Thank you again, and I apologize for walking out on you. 
Nothing personal. You are recognized.

 STATEMENT OF MELISSA HAMSHER, VICE PRESIDENT, ENVIRONMENTAL, 
HEALTH, SAFETY, AND REGULATORY, ECLIPSE RESOURCES CORPORATION, 
                  STATE COLLEGE, PENNSYLVANIA

    Ms. Hamsher. Chairman Bishop, Ranking Member Grijalva, and 
members of the Committee, thank you for inviting me today to 
speak about my company's experience with permitting natural gas 
projects in Appalachia and dealing with NEPA.
    My name is Melissa Hamsher, and I serve as the Vice 
President of Environmental, Health, Safety, and Regulatory at 
Eclipse Resources Corporation. I hope that my technical 
experience, coupled with my history working for a state 
regulator, and my current work in private industry will be 
beneficial to the Committee.
    My company, Eclipse Resources Corporation, is an 
independent oil and gas exploration and production company 
focusing on cutting-edge technology and innovation as we 
develop oil and natural gas resources in the Appalachian Basin. 
We also pioneered the ``Super-Lateral'' drilling program.
    As this Committee has heard before, the growth in oil and 
natural gas production in the Appalachian region has largely 
occurred on private and state lands, with development on 
Federal Government lands lagging far behind. These delays, 
largely the result of long Federal environmental reviews and 
litigation at most steps of the process are costing the United 
States Treasury significant dollars in royalty payments.
    Let's start by focusing on the process of accessing 
Federal-owned sub-surface resources in Ohio. Eclipse has leased 
substantial sub-surface acreage within the boundaries of the 
Wayne National Forest for oil and natural gas development. 
After permitting and approval by the state of Ohio, the Federal 
Government inserted itself on environmental grounds, citing 
NEPA, even though BLM's only interest is in the proportionately 
small sub-surface minerals.
    Piecemeal parcels of public and private land combined with 
a mixture of Federal and private mineral rights make up the 
Wayne National Forest.
    You can change that.
    [Slide.]
    Ms. Hamsher. This combination results in much of the land 
within the Federal boundaries being owned wholly by private 
parties.
    Eclipse Resources initially submitted expressions of 
interest on parcels in the Wayne National Forest in 2012. In 
October 2016, BLM issued a finding of no significant impact, 
FONSI, and shortly thereafter announced their competitive 
online auction sale for leases on December 13, 2016. Eclipse 
Resources successfully won parcels in the December auction, but 
did not receive title until May 23, 2017, after 5 months of 
delay.
    Proceeding with our development plans in July, we filed an 
APD for the well named Rolland A, Well Number 1H, with the 
intent of starting work in August. This well would be drilled 
horizontally, more than a mile beneath the surface from a 2016 
well pad previously constructed on private land, in accordance 
with all state regulations.
    Since we are utilizing horizontal drilling methods, the 
wells would have no significant impact to the Wayne National 
Forest. Therefore, we believe our submitted permits should be 
subject to BLM's categorical exclusion for no Federal surface 
impact. However, BLM determined that the agency must use the 
guidance in an outdated instructional memorandum which subjects 
APDs on private lands to environmental analysis that have nexus 
to Federal minerals. This decision came shortly after a lawsuit 
by environmental NGOs. We believe these two events are directly 
related.
    Following this decision, 1 month later, in August, BLM 
conducted site visits on our landowners' private properties in 
an effort to undertake their NEPA analysis. States have primacy 
over development of minerals on private property. In accordance 
with Ohio regulations, Eclipse Resources had already conducted 
the necessary administrative and environmental reviews, meeting 
Ohio's requirements, and received all the relevant permits. 
Still, BLM deemed it necessary to conduct a full environmental 
assessment on private land, a requirement that Eclipse and its 
landowners have fully met.
    Eclipse Resources will have no surface impacts to Federal 
surface parcels from oil or natural gas development occurring 
within the boundaries of the Wayne National Forest. The 
horizontal position of the well bore penetrates only sub-
surface minerals. Private landowners hold title to all the 
surface parcels where the work will occur.
    Despite our full cooperation with the process, I sit here 
today with no sense of when the Federal reviews will be 
completed, or when we can begin producing on private land, 
where Eclipse already has its state-issued permits in hand. I 
hope the Committee will look at issues like these to find ways 
to allow robust environmental reviews on state lands, coupled 
with responsible mineral development to control projects like 
Eclipse and others going forward.
    In short, we would like the states to have primacy over 
environmental reviews for sub-surface Federal parcels with no 
Federal surface impact. Extensive and intrusive environmental 
and archeological studies are being conducted on private-
surface lands where no Federal surface or Federal sub-surface 
are located within thousands of feet. This simply does not need 
to happen to ensure good stewardship.

    [The prepared statement of Ms. Hamsher follows:]
       Prepared Statement of Melissa L. Hamsher, Vice President, 
   Environmental, Health, Safety, and Regulatory, Eclipse Resources 
                              Corporation
    Chairman Bishop, Ranking Member Grijalva, and members of the 
Committee, thank you for inviting me today to speak about my company's 
experience with permitting natural gas projects in Appalachia and 
dealing with the National Environmental Policy Act (NEPA).
    My name is Melissa Hamsher and I serve as the Vice President of 
Environmental, Health, Safety, and Regulatory at Eclipse Resources 
Corporation. I have held this job since 2011 and held a similar title 
at Rex Energy Corporation for 5 years prior to that. Before my work in 
the private sector, I worked at the Pennsylvania Department of 
Environmental Protection for 6 years as an engineer in the Bureau of 
Oil and Gas Management.
    I may very well be the only environmental specialist with advanced 
technical knowledge of oilfield processes to come before this 
Committee, and I really do appreciate the opportunity to share the 
Eclipse story with you. I hope that my technical experience, coupled 
with my history working for a state regulator and my current work in 
private industry, will be beneficial to the Committee.
    My company, Eclipse Resources Corporation, is an independent oil 
and gas exploration and production company focused on cutting edge 
technology and innovation as we develop oil and natural gas resources 
in the Appalachian region. This testimony includes significant detail 
on Eclipse later.
    As this Committee has heard before, the growth in oil and gas 
production in the Appalachian region has largely occurred on private 
and state lands, with development on Federal Government lands lagging 
far behind. These delays, largely the result of long Federal 
environmental reviews and litigation at most steps of the process, are 
costing the United States Treasury significant dollars in royalty 
payments. They also cost local governments funds they rely on for 
schools and other crucial programs. I understand that the Committee is 
currently working on both the ONSHORE Act and the POWER Counties Act. 
Both bills make valuable progress in fixing the issues related to oil 
and natural gas development involving Federal minerals. However, these 
two bills alone are insufficient to remedy extensive permit delays on 
projects that are carefully designed and environmentally responsible.
    Let's start by focusing on the process of accessing Federal-owned, 
sub-surface resources in Ohio. Eclipse has leased substantial sub-
surface acreage within the boundaries of the Wayne National Forest for 
oil and natural gas development. This hearing to better understand how 
bureaucratic delays caused by duplicative environmental reviews and 
extensive analysis by the Bureau of Land Management (BLM) for sub-
surface mineral penetration effectively halts development of our 
Nation's natural resources is important and timely. Using our project 
within the bounds of the Wayne National Forest as an example, after 
permitting and approval by the state of Ohio, the Federal Government 
inserted itself on environmental grounds, citing NEPA, even though 
BLM's only interest is in the proportionately small sub-surface 
minerals.
    Piecemeal parcels of public and private land, combined with a 
mixture of Federal and private mineral rights, make up the Wayne 
National Forest. This combination results in much of the land within 
the Federal boundaries being owned wholly by private parties. More 
background on the unique makeup of the forest follows, but these 
realities make Federal environmental review even less logical.
    Since submitting our Application for Permits to Drill (APD) in 
July, Eclipse has faced numerous procedural roadblocks from BLM and 
unreasonable agency requests that have significantly delayed 
development and negatively affected our planned drilling programs. 
Multiple layers of Federal regulation, the direct result of BLM 
inserting itself into this process, have delayed this project for many 
months and we do not have a timeline for the process' conclusion.
    Eclipse Resources initially submitted Expressions of Interest 
(EOIs) on parcels in the Wayne National Forest in 2012. In October 
2016, BLM issued a Finding of No Significant Impact (FONSI) and shortly 
thereafter announced their first competitive online auction sale for 
leases on December 13, 2016. Eclipse Resources successfully won parcels 
in the December auction sale but did not receive title until May 23, 
2017, after more than 5 months of delay.
    Proceeding with our development plans, in July, we filed an APD for 
the well named Rolland A, Well Number 1H, with the intent to start work 
in August. This well would be drilled horizontally, more than a mile 
beneath the surface from the 2016 well pad previously constructed on 
private land--in accordance with all state regulations.
    Since we are utilizing horizontal drilling methods, the wells would 
have no surface impact to the Wayne National Forest. Therefore, we 
believe our submitted permits should be subject to BLM Categorical 
Exclusion (CX) Document 43 CFR part 1600 2016 Amendment, as there would 
be no surface occupancy or disturbance of the unit.
    However, BLM determined that the agency must use the guidance in an 
outdated Instruction Memorandum 2009-078, which subjects APDs on 
private lands to environmental analyses that have nexus to Federal 
minerals. This decision, coincidentally, came shortly after a lawsuit 
by environmental non-governmental organizations.
    Following the decision, 1 month later in August, BLM conducted site 
visits on our landowners' private properties in an effort to undertake 
their NEPA analysis. States have primacy over development of minerals 
on private property. In accordance with Ohio regulations, Eclipse 
Resources had already conducted the necessary administrative and 
environmental reviews, meeting Ohio's requirements, and received all 
relevant permits. Still, BLM deemed it necessary to conduct a full 
environmental assessment on private land--a requirement that Eclipse, 
and its landowners, have fully met.
    Eclipse Resources will have no surface impacts to Federal surface 
parcels from oil and natural gas development occurring within the 
boundaries of the Wayne National Forest on Federal surface parcels. The 
horizontal portion of the well bore penetrates only sub-surface 
minerals. Private landowners hold titles to all of the surface parcels 
where the work will occur.
    To summarize, Eclipse has followed all applicable state guidance, 
laws, and regulations, cooperated with the Federal Government, and 
implemented aggressive environmental mitigation techniques for 
exploration on private land within the boundaries of a national forest. 
Despite the foregoing, BLM has repeatedly slowed the review of this 
project and has undertaken an unwarranted full environmental review. 
Despite our full cooperation with the process, I sit here today with no 
sense of when the Federal reviews will be completed or when we can 
begin producing on private land where Eclipse already has its state-
issued permits in hand.
    At the same time, no other producer has received an APD from that 
December 2016 sale. Almost 18 months after leases were purchased, the 
Federal Government has obstructed development.
    While I have spent a lot of time discussing our natural gas 
exploration experience, I want to note that NEPA applies to a broad 
range of projects--airports, highways, resource exploration, renewable 
projects, and so many other types of development. I bring this up, 
because while discussing NEPA is important to Eclipse and its projects, 
it is crucial to so much economic growth all over our country.
    I hope the Committee will look at issues like these to find ways to 
allow robust environmental reviews in the states, coupled with 
responsible mineral development, to control projects like Eclipse's and 
others going forward. In short, we would like the states to have 
primacy over environmental reviews for sub-surface Federal parcels with 
no Federal surface impact. Extensive and intrusive environmental and 
archeological studies are being conducted on private surface lands 
where no Federal surface or Federal sub-surface are located for 
thousands of feet. This simply does not need to happen to ensure good 
stewardship.
    In addition, I would like to provide some significant background 
for the Committee's consideration on Eclipse Resources, the company's 
advanced environmental controls and protections, oil and gas 
exploration in Appalachia, and the particulars of the Wayne National 
Forest.
                           eclipse resources
    Eclipse pioneered the ``Super-Lateral'' drilling concept, leading 
the industry with the development of horizontal wells in excess of 3 
miles in length. Our innovations have led to less expensive well 
development, more efficient resource development, and, most 
importantly, safety and environmental excellence.
    As you know, Appalachia is at the center of the Utica and Marcellus 
Shale plays, and Eclipse has focused on the responsible development of 
resources in the ``core'' of the natural gas fields in southeastern 
Ohio. While our corporate headquarters are located in Pennsylvania, we 
have our primary production volumes in the state of Ohio.
                         environmental controls
    I want to underscore Eclipse's commitment to environmental 
stewardship. While Eclipse outlines many of the environmental 
safeguards we undertake in the work we do in Appalachia on its 
corporate website, I would like to draw your attention to some efforts 
that I think are particularly important. During development, we conduct 
reviews and studies that far exceed state or Federal requirements.
    Eclipse uses a closed-loop drilling system, which recycles drilling 
fluids and eliminates the need for earthen pits. This practice, 
although not required by law, ensures that there are no environmental 
impacts to local groundwater sources, or to flora and fauna from 
cuttings and fluids storage. Eclipse ensures minimization of its 
environmental footprint through the installation of multi-well pads, 
which diminish the effects on local infrastructure and limit forest 
fragmentation. ``Green Fracs,'' while not required, are employed by 
Eclipse to reduce diesel emissions through the utilization of natural 
gas as a power source during hydraulic fracturing operations. Where 
state regulations may be lagging, we take it upon ourselves to ensure 
the sustainability of surface water aquatic biology through extensive 
stream studies and self-imposed water withdrawal restrictions.
    Prior to it being required by regulation, Eclipse was a pioneer in 
voluntarily submitting chemical usage to the public. Eclipse employs a 
robust air protection program, studying, monitoring, and testing to 
ensure fugitive emissions do not exist at our well sites. While the 
company's environmental stewardship is not necessarily the topic of 
this hearing, it is crucial to Eclipse's business and something I want 
to ensure is on the record, as I discuss the effect of NEPA on our 
operations.
                       oil and gas in appalachia
    Given Eclipse Resource's position in southeastern Ohio, at the 
center of Appalachian shale development, I also wanted to share some 
key facts and figures from the region with you. The oil and natural gas 
industry supports more than 650,000 jobs, paying more than $41 billion 
in wages, and had a $90 billion economic impact in Pennsylvania, Ohio 
and West Virginia in 2015, according to a PricewaterhouseCoopers LLP 
study released last year by the American Petroleum Institute. In 
addition, hundreds of millions of dollars have been spent on taxes that 
support local schools, municipal governments, and vital infrastructure.
    What's more is that these investments have occurred in some of the 
most economically depressed areas of these three states, along the Ohio 
River. In Ohio, for example, the oil and natural gas industry paid more 
than $45 million in taxes and $300 million in improvements to roads and 
bridges.
    Counties along the Ohio River have reported that they would have 
gone bankrupt, had it not been for the oil and natural gas industry 
activities over these past few years. There is simply no greater 
example of the economic turnaround in Appalachia than Monroe County, 
Ohio. In 2013, Monroe County lost its largest employer, the Ormet 
aluminum smelting plant, leaving 1,000 people out of work in Ohio and 
West Virginia. The county of 14,500 people faced a bleak future with 
skyrocketing unemployment and a loss of $4.5 million in tax revenues 
from the plant closure.
    However, thanks to some of the best natural gas producing wells in 
the Appalachian Basin, sales tax revenues have skyrocketed, jumping 
over 340 percent. Unemployment in the region has declined to 10.4 
percent after spiking above 14 percent in 2014 according to data from 
the Ohio Department of Job and Family Services. This prolific natural 
gas production has led to other major investments in the region, such 
as a natural gas power plant and a natural gas liquids storage hub.
    What concerns us, however, is that the county is only just 
beginning the road to recovery and these economic gains are at risk as 
Federal red tape is causing unnecessary roadblocks to continued 
investments in these communities.
                       the wayne national forest
    To highlight this point, Monroe County is home to the Wayne 
National Forest and some of the most prolific natural gas wells in the 
Utica Shale. There are several dozen oil and natural gas producers that 
operate in Monroe County, both large operators and small operators. In 
fact, there are over 1,200 decades-old wells producing oil and natural 
gas on the surface of the Wayne National Forest today, independent of 
the newer shale wells. Unlike many other Federal forests, the Wayne 
National Forest is a patchwork of private and Federal lands and 
minerals. In fact, the Federal Government only holds ownership of 25 
percent of the land within the Forest Proclamation Boundary. In 
addition, 59 percent of the minerals in the boundaries of the Wayne 
National Forest are privately owned.
    Federal lands are exempt from property taxes, which can create 
financial hardships for entities that receive public funds and in Ohio. 
With property taxes as the primary base of school district and township 
funds, local governments in Ohio are awaiting new development in the 
region. Leasing of Federal minerals and, more importantly, royalty 
monies received from oil and natural gas production is sorely needed to 
help fund local schools and municipalities in these Appalachian 
communities. Just last week, the superintendent of the Switzerland 
Local School testified before the Energy and Mineral Resources 
Subcommittee in support of the POWER Counties Act about this growing 
issue, and I would encourage you to review his testimony, if you have 
not already done so.
    To date, the oil and natural gas industry has spent over $8 million 
to secure Federal leases in the Wayne National Forest. A portion of 
those bonus payments has already gone back to local communities. It is 
my understanding that the intent of allowing leases on Federal land is 
to realize development of minerals and collect royalty payments, lease 
payments, and tax revenue. With the Federal Government's fiduciary 
responsibility to the taxpayers to see our minerals developed, I very 
much hope we can work together to eliminate the unnecessary delays and 
snags in the permitting process.
    I want to re-emphasize that since the Bureau of Land Management's 
first lease sale, which was held December 13, 2016, not one Application 
for Permit to Drill (APD) has been issued.
                               conclusion
    Again, I want to say thank you to the Committee for holding this 
important meeting today. I look forward to working with all of you to 
find a way to ensure responsible mineral development on both public and 
private land, under the direction of states and as intended by 
Congress. I look forward to answering your questions and continuing the 
conversation.


[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Mr. Thompson [presiding]. Thank you, Ms. Hamsher.
    I am now pleased to recognize Mr. Greczmiel for 5 minutes.

  STATEMENT OF HORST GRECZMIEL, FORMER ASSOCIATE DIRECTOR FOR 
 NEPA OVERSIGHT AT COUNCIL ON ENVIRONMENTAL QUALITY, FAIRFAX, 
                            VIRGINIA

    Mr. Greczmiel. Thank you. Chairman Bishop, Ranking Member 
Grijalva, and members of the Committee, thank you for inviting 
me here today to speak to you about the National Environmental 
Policy Act, its implementation, and NEPA litigation.
    For over a decade, I worked at agencies writing, reviewing, 
and providing guidance on NEPA reviews. I then moved over to 
the Council on Environmental Quality, where I served as 
Associate Director for NEPA for over 16 years. My work focused 
on NEPA and other environmental reviews and permits for all 
manner of Federal agencies' approvals and activities, including 
putting new or revised regulations into place, establishing 
land management policies and plans, and the development of 
pipelines, transmission lines, bridges, highways, and other 
infrastructure.
    NEPA is often referred to as this country's environmental 
Magna Carta, as it says, ``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.''
    NEPA does not put the environment above other requirements, 
or above the social, economic, or other issues. It simply 
requires Federal agencies to inform decision makers and the 
public of the environmental consequences of a proposed action 
before a decision is made.
    One of the most rewarding aspects of being Associate 
Director for NEPA was the opportunity to work with Federal, 
tribal, state, and local officials and local citizens who 
sought a greater voice, either as formal partners in the NEPA 
process or in providing comments on NEPA reviews that impacted 
their lives.
    The NEPA process, the analytical framework for NEPA 
reviews, is fleshed out in the CEQ regulations and the agency 
NEPA implementing procedures. As you heard, there are three 
levels of environmental review.
    The categorical exclusion, which agencies establish because 
they believe that that type of activity is not one that has 
significant environmental impacts or the potential for those 
impacts, is used over 95 percent of the time. Tens, if not 
hundreds, of thousands of actions a year that are taken by the 
Federal Government are covered by categorical exclusions.
    The next level of environmental review is a bit more 
rigorous, and that is the environmental assessment when a CE 
isn't appropriate and the agency hasn't determined that there 
could be potential significant impacts. Approximately 4 percent 
of NEPA reviews, tens of thousands a year, are environmental 
assessments.
    Finally, the most intensive level of review is the 
environmental impact statement. An EIS is used when the 
proposed action is considered to have the possibility for those 
significant impacts. Approximately 1 percent of NEPA reviews, 
about 200 a year, go through the EIS process.
    Does the process or litigation slow down Federal permits or 
approvals? As to timeliness, let me be clear. Considering the 
consequences before taking action, considering alternatives 
that might have less of an impact, looking at the impacts of 
the proposed activities, and engaging the public does take 
time. But that is time that, in my opinion, should be taken 
when there is a potential for significant environmental impacts 
that an affected community may have to live with for years or 
decades.
    Experience has taught me that NEPA is not usually the cause 
of delays, and delays do occur in a large number of NEPA 
reviews. A multitude of factors, including a lack of funding 
for the projects, change in project design after planning has 
started, change in priorities, local opposition, or delays in 
other non-NEPA permitting or approval processes at the state, 
local, or tribal level have all added to those.
    I might add that, sadly, not providing the capacity, the 
people, and the training to prepare and oversee NEPA reviews 
and how to use the efficiencies, the lessons learned, and the 
latest developments in improving the timeliness of NEPA also 
leads to delay.
    The CEQ regulations provide many mechanisms. You have 
already heard of the three levels that make the amount of 
review commensurate with the expected impacts. But they also 
provide for tailored time limits, using an open process for 
identifying the issues that merit review, and integrating 
NEPA's requirements with others to avoid duplication. Just as 
the number of required EISs is proportionately low in 
comparison to the number of reviews, in my experience the 
number of cases filed is proportionately very small, with 
concerned parties currently typically filing approximately 100 
NEPA lawsuits per year. Considering the amount of Federal 
actions that are taken, that context, I think, is important.
    The criticism that NEPA produces wasteful litigation 
overlooks the essential role that it plays. For many, it is the 
only mechanism for enforcing NEPA. The main reason plaintiffs 
file suit was, and continues to be, that NEPA is inadequate 
because the information was incomplete, or the analysis was not 
sufficient. Litigation is often their only recourse.
    Most litigation is won by the agencies, by the way. 
However, despite courts' deference to agency work, a good 
number of cases find that the plaintiff's challenges do have 
merit. In 2016, 30 percent of the appellate cases found for the 
plaintiffs.
    Injunctions and remands, they don't stop NEPA, they require 
the agency to go back, correct their work, and allow the 
project to proceed.
    Finally, from my perspective working with local 
communities, bringing suit and litigation is expensive and 
time-consuming. It is usually the last resort that they want to 
employ after they have been shut out of the NEPA process, or 
have been unable to work effectively in that process, so that 
their concerns could be met.
    Thank you, and I look forward to answering your questions.

    [The prepared statement of Mr. Greczmiel follows:]
 Prepared Statement of Horst Greczmiel, Former Associate Director for 
           NEPA Oversight at Council on Environmental Quality
                          introductory remarks
    Chairman Bishop, Ranking Member Grijalva, and members of the 
Committee, thank you for inviting me to speak to the House Natural 
Resources Committee on the National Environmental Policy Act (NEPA), 
its implementation, and NEPA litigation.
    I first became familiar with NEPA near the end of my 14-plus year 
military career when, after receiving my LL.M. in Environmental Law 
from George Washington University, I was assigned to the U.S. Army 
Environmental Law Division. There, I worked on NEPA and other 
environmental reviews and permits on activities including desert 
training operations, military installation development and expansion, 
and base closure and realignment. After leaving active military service 
in 1992, I entered the civilian Federal workforce as an attorney 
advisor at the Coast Guard Environmental Law Division. At the Coast 
Guard, my work focused on NEPA and other environmental reviews and 
permits for activities including the disposition of Governor's Island 
and Coast Guard vessel operations along the Atlantic coast. While at 
USCG Headquarters, I served a detail to the Council on Environmental 
Quality (CEQ) during the President George H.W. Bush administration. 
Several years later, in November 1999, I became the Associate Director 
for National Environmental Policy Act Oversight at CEQ, overseeing the 
Federal Government's implementation of NEPA. I served in that capacity 
for over 16 years and retired on December 31, 2015.
                 the national environmental policy act
    The National Environmental Policy Act, NEPA, is often referred to 
as this country's environmental Magna Carta and is viewed as an 
essential tool to help agencies plan Federal actions responsibly. The 
Act requires Federal agency leaders, the decision makers, to consider 
the environmental consequences of their actions before making a 
decision. NEPA sets forth this Nation's policies regarding the 
environment in Section 101, the Congressional Declaration of National 
Environmental Policy, where Congress declares:

        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.

    The Act goes on to provide important policy goals:

        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. \1\
---------------------------------------------------------------------------
    \1\ 42 U.S.C. Sec. 4331.

    Congress passed NEPA by overwhelming bipartisan majorities.\2\ 
Signed into law by President Richard M. Nixon, the Act mandated that 
Federal agencies employ the NEPA process to achieve those policy goals. 
It also established CEQ to, among other responsibilities, oversee the 
implementation of NEPA. In 1983, the U.S. Supreme Court made it clear 
that NEPA has two main goals:
---------------------------------------------------------------------------
    \2\ The House of Representatives adopted NEPA by a vote of 372 to 
15. 115 CONG. REC. 19,013 (1969). The Senate passed NEPA by voice vote 
without recorded dissent. 115 CONG. REC. 26,590 (1969).

        First, it places upon an agency the obligation to consider 
        every significant aspect of the environmental impact of a 
        proposed action. Second, it ensures that the agency will inform 
        the public that it has indeed considered environmental concerns 
        in its decision-making process. Congress in enacting NEPA, 
        however, did not require agencies to elevate environmental 
        concerns over other appropriate considerations. Rather, it 
        required only that the agency take a ``hard look'' at the 
        environmental consequences before taking a major action . . . 
        Congress did not enact NEPA, of course, so that an agency would 
        contemplate the environmental impact of an action as an 
        abstract exercise. Rather, Congress intended that the ``hard 
        look'' be incorporated as part of the agency's process of 
        deciding whether to pursue a particular Federal action. \3\
---------------------------------------------------------------------------
    \3\ Baltimore Gas & Electric Co. v. Natural Resources Defense 
Council, Inc., 462 U.S. 87, 97, 100 (1983).
---------------------------------------------------------------------------
                            the nepa process
    The NEPA process provides an analytical framework fleshed out in 
the CEQ Regulations Implementing the Procedural Provisions of NEPA 
Regulations issued in 1978 (CEQ NEPA Regulations) \4\ NEPA affords the 
public the opportunity the public and local governmental officials 
notice and the opportunity to be informed during Federal Government 
decision making; giving them a voice in those decisions and allows them 
to suggest alternatives and further refined and adapted to agency 
missions and needs in Federal agency NEPA Implementing Procedures.\5\ 
During the course of the NEPA process, a Federal agency identifies a 
need for a taking action, develops a proposed action, identifies 
reasonable alternatives, and analyzes the potential effects of the 
alternatives.
---------------------------------------------------------------------------
    \4\ 40 CFR parts 1500-1508 available at https://www.ecfr.gov/cgi-
bin/text-idx?SID=30655823cf5f0 dcb1c5ee59d01883b89&mc=true&tpl=/
ecfrbrowse/Title40/40chapterV.tpl.
    \5\ 40 CFR 1507.3. Agency implementing procedures are available at 
https://www.ecfr.gov/cgi-bin/text-
idx?SID=30655823cf5f0dcb1c5ee59d01883b89&mc=true&tpl=/ecfrbrowse/
Title40/40 chapterV.tpl.

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    There are essentially three levels of NEPA review:

     Categorical Exclusion (CE): A CE is a category of actions 
            established, after CEQ and public review, in agency 
            procedures implementing NEPA that is expected not to have 
            individually or cumulatively significant environmental 
            impacts. An action within such a category is excluded from 
            analysis and documentation in an Environmental Assessment 
            or an Environmental Impact Statement provided there are no 
            unusual circumstances associated with the proposed action 
            that warrant further environmental consideration, or, in 
            NEPA terms, that there no extraordinary circumstances. A CE 
            can be concluded with a determination that a proposed 
            action falls within one of the established categories of 
            actions and there are no extraordinary circumstances.\6\
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    \6\ 40 C.F.R. Sec. 1508.4.

     Environmental Assessment (EA): When a CE is not 
            appropriate, or if the agency has not determined whether a 
            proposed action could cause significant environmental 
            effects, then an EA is prepared. If, as a result of the EA, 
            a finding of no significant impact (FONSI) is appropriate, 
            then the NEPA review process is completed with the FONSI 
            or, when mitigation is included to reduce the intensity of 
            the impacts to a level that is not significant, a mitigated 
            FONSI; otherwise an EIS is prepared.\7\
---------------------------------------------------------------------------
    \7\ 40 C.F.R. Sec. 1508.9.

     Environmental Impact Statement (EIS): When a proposed 
            action is expected to result in significant impacts to the 
            human environment, the agency prepares an EIS, the most 
            intensive level of analysis. The NEPA review process is 
            concluded when a record of decision (ROD) is issued.\8\
---------------------------------------------------------------------------
    \8\ 40 C.F.R. part 1502.

    The conclusion of the NEPA process provides decision makers and the 
public with a ``hard look'' at the environmental consequences of 
proposed actions. Recognizing there are many factors in addition to the 
environment that are considered when making a decision, it is left to 
---------------------------------------------------------------------------
agency leaders to decide whether and how to best proceed.

    One of the groundbreaking and most valued aspects of the NEPA 
process is that NEPA gives a voice to the people. NEPA affords the 
public and local officials notice of what their government is doing 
before it happens. NEPA affords them the opportunity to offer 
reasonable alternatives and to be involved in the analyses that informs 
Federal decisions that impact their communities and livelihoods. One of 
the most rewarding aspects of being Associate Director for NEPA was the 
opportunity to work with Federal, tribal, state, and local officials, 
including mayors, county commissioners, governors, tribal councils, and 
with local citizens who sought a greater voice in how the Federal 
environmental reviews and permits impacted their activities and lives, 
either as formal partners in the NEPA process or in providing comments 
on a NEPA review. Many of them told me how important it was that they 
could participate in this way.
    There is a considerable amount of flexibility under the CEQ NEPA 
Regulations as to how agencies can implement the NEPA process. Under 
the CEQ NEPA Regulations each department and agency identifies, based 
on experience and expertise, the anticipated level of environmental 
review that is typically necessary for undertaking the type of actions 
it normally undertakes. Those anticipated levels are identified in the 
agency NEPA procedures that are called for by the CEQ NEPA Regulations 
and are reviewed and approved by CEQ.\9\ In addition, CEQ issues 
guidance and provides direction on implementing NEPA and the CEQ NEPA 
Regulations. CEQ also works with agencies to address the challenges 
they face when implementing those procedures for all manner of Federal 
decisions (e.g., placement and development of pipelines, transmission 
lines, bridges, water treatment facilities, military relocations, 
nuclear material storage, and land management policies and plans).
---------------------------------------------------------------------------
    \9\ 40 CFR 1507.3(a).
---------------------------------------------------------------------------
    There is ongoing debate regarding the need for measures to address 
assertions that NEPA delays Federal projects. A good portion of that 
debate stems from disagreement among stakeholders regarding the degree 
to which, if any, the NEPA process itself is to blame for Federal 
project delays. Complaints about delays attributed to the NEPA process 
generally fall into two broad categories: those related to the time 
needed to complete required NEPA reviews (primarily EISs) and those 
resulting from NEPA-related litigation.
                               timeliness
    I'll first address the issue of delay that people attribute to the 
time needed for NEPA reviews and will note the efficiencies available 
to address key challenges Federal agencies face in ensuring the 
timeliness of NEPA reviews. The perception that compliance with NEPA 
causes significant delays in approvals of large numbers of proposed 
actions is simply wrong. Experience taught me that NEPA is not usually 
the cause, and that delays do not occur in a large number of NEPA 
reviews.
    A multitude of factors, other than NEPA, can affect the timing of 
Federal project delivery. In my experience factors that can cause delay 
include lack of funding, changes in the design or planning processes, 
inadequate staff capacity to implement or even oversee the NEPA 
process, changes in priorities that keep a proposed project from 
proceeding in the near term, local controversy or local opposition to a 
project, or delays in other (non-NEPA) permitting or approval processes 
at the Federal, state, tribal, or local level. With regard to the 
latter, certain Federal actions such as highway construction projects 
and permitting for mining operations, cattle grazing, forest thinning, 
and energy development may require compliance with other statutory and 
regulatory requirements which can add time, especially if they are 
raised late in the environmental review process. This is particularly 
the case when such review or permitting requires the participation or 
input of increasing numbers of local, state, tribal, or Federal 
agencies. In addition, agencies responsible for protecting resources 
are often confronted by problems with the project's alternatives 
analysis, incorrect or incomplete information, disagreements or 
differences of opinion among agencies, poor communication with project 
proponents and other agencies, or the environmental or biological 
analyses associated with the project.\10\ More often than not, factors 
other than complying with NEPA or the NEPA Regulations are the reasons 
for delaying Federal projects.
---------------------------------------------------------------------------
    \10\ 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, p. 36.
---------------------------------------------------------------------------
    NEPA does take time, and that should be time well spent. For 
example, NEPA should take time when a proposed action has the potential 
for significant environmental impacts that an affected community likely 
may live with for decades if not centuries, depending on the nature of 
the action. Time taken for the purposes of preparing a sound analysis 
and adequate public involvement is time well spent. It is also 
important to understand that citizens need some real time to review 
documents and write comments.
    It is also true the NEPA process is delayed at times for reasons 
that have nothing to do with the protection of the environment, our 
communities, or public lands. In my experience, and the experience of 
many that I have worked with, there are two key reasons for such 
delays, both are issues of capacity: lack of agency staff with 
responsibility for NEPA implementation and lack of adequate training. 
Agency capacity has been severely diminished over the last 20 years. In 
some agencies, offices have been disbanded; in others, additional 
responsibilities have been assigned to staff to the point that their 
capacity for NEPA work is severely diluted. In one of the worst 
situations I encountered, an agency decided not to fill regional NEPA 
positions on the theory that ``everyone'' would do the NEPA work. Just 
as detrimental is the loss of capacity for NEPA training within the 
agencies, either through lack of funding for training or through the 
loss of expertise to provide internal training. For far too many 
employees, NEPA is an ``other duty as assigned.''
    Additionally, far too many employees with NEPA responsibility are 
provided only ``OJT'', on the job training. Regrettably, that training 
too often relies on how the work has been done in the past rather than 
focusing on lessons learned and integrating improvements into the 
agency NEPA process. Staff members who are not fully trained in 
implementing NEPA often end up doing extra work in an attempt to make 
sure they are doing the right thing and agency lawyers require more 
time to ensure there is an adequate record to support the agency 
decision. An effective NEPA process would ensure sufficient people with 
knowledge and capacity are in appropriate agency offices.
    Compounding the lack of capacity problem is the paucity of 
information about the implementation of NEPA noted by the Government 
Accountability Office (GAO) and the Congressional Research Service 
(CRS) in their 2014 and 2015 reports.\11\ However, GAO and 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 
timeliness. More of this type of analysis is needed if agencies and/or 
legislators are going to be able to identify the causes of delays and 
formulate successful approaches to reducing such delays. In short, a 
number of Federal projects have indeed been delayed or stopped but for 
reasons that have nothing to do with NEPA; unfortunately and unfairly 
NEPA usually gets the blame.\12\ Misplaced blame makes correcting any 
problem more difficult.
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    \11\ Little Information Exists on NEPA Analysis, GAO-14-369, April 
2014, p. 7-8; The National Environmental Policy Act (NEPA): Background 
and Implementation, CRS RL33152, January 10, 2011, p. 26.
    \12\ See, The National Environmental Policy Act: Streamlining NEPA, 
CRS 7-5700, December 6, 2007 and The Role of the Environmental Review 
Process in Federally Funded Highway Projects: Background and Issues for 
Congress, CRS 7-5700, R42479, April 11, 2012.
---------------------------------------------------------------------------
    In the years prior to my retirement, the Federal agencies 
intensified their efforts to identify and address the challenges 
agencies face in preparing timely and effective NEPA reviews. Among the 
challenges identified were the need for early communication and 
coordination among all the agencies involved in the environmental 
review of a proposed action and developing and meeting coordinated 
timelines. Another key challenge is in identifying and engaging all 
agencies--Federal, tribal, state, and local--as well as the public, 
particularly the communities likely to be impacted, in order to focus 
on the issues that need to be addressed during the review and 
permitting process and the analyses and methods to address those 
issues.
                              efficiencies
    Before I turn to recent initiatives, the CEQ NEPA Regulations merit 
attention. Although they are frequently criticized for their age, such 
criticism overlooks the value they add to NEPA reviews by focusing on 
efficiencies and timeliness.
    As noted above, the CEQ NEPA Regulations require agencies to 
establish agency-specific NEPA implementing procedures that allow for 
the efficient identification of the appropriate level of NEPA review 
for a proposed action (categorical exclusion [CE], environmental 
assessment [EA], and environmental impact statement [EIS]). These three 
levels of NEPA review exemplify the flexibility provided by NEPA is 
shaping the extent of the environmental analysis to be commensurate 
with the expected environmental effects. This flexibility has proven 
itself over time as evidenced by the fact that most Federal actions 
receive only the least rigorous form of environmental review--the CE--
and a relatively small number of Federal actions receive the most 
rigorous--the EIS. This is demonstrated by the fact that fewer than 300 
final EISs have been published by the agencies each year since 
2000.\13\ This is also borne out by the results of the congressionally 
mandated reporting on the status of NEPA reviews for the hundreds of 
thousands of Federal activities funded under the American Reinvestment 
and Recovery Act (ARRA).\14\
---------------------------------------------------------------------------
    \13\ In 2012, the last year for which data is posted on the CEQ 
website, there were less than 200 draft and less than 200 final EIS 
prepared and filed (available at https://ceq.doe.gov/docs/get-involved/
combined-filed-eiss-1970-2012.pdf). The EPA EIS database shows an 
average of less than 400 draft and final EISs were filed in 2013-2017 
(available at https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/
search).
    \14\ Public Law 111-5, Section 1609(c): ``The President shall 
report to the Senate Environment and Public Works Committee and the 
House Natural Resources Committee every 90 days following the date of 
enactment until September 30, 2011 on the status and progress of 
projects and activities funded by this Act with respect to compliance 
with National Environmental Policy Act requirements and 
documentation.''
---------------------------------------------------------------------------
    The ARRA reports from May 2009 through November 2011 covered over 
275,000 funded activities for which agencies fulfilled their NEPA 
responsibilities with over 184,000 CEs, over 7,000 EAs, and less than 
900 EISs.\15\ This Federal Government wide data is consistent with 
information provided by one agency that tracks all of its NEPA reviews. 
In 2007, the Federal Highway Administration reported that approximately 
92 percent of all highway projects met their NEPA responsibilities with 
CEs, and approximately 4 percent were met with EAs and 4 percent with 
EISs.\16\
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    \15\ Available at https://ceq.doe.gov/ceq-reports/
recovery_act_reports.html.
    \16\ The National Environmental Policy Act (NEPA): Background and 
Implementation, CRS RL33152, January 10, 2011, p. 15-16.
---------------------------------------------------------------------------
    In addition to calling for agency-specific procedures that allow 
for the efficient identification of the appropriate level of NEPA 
review, the CEQ NEPA Regulations encourage agencies to reduce paperwork 
and delay (40 C.F.R. sections 1500.4 and 1500.5). They also provide for 
tailored time limits (40 C.F.R. section 1501.8); scoping by using an 
early and open process for identifying those issues that merit detailed 
analysis (40 C.F.R. section 1501.7); integrating NEPA requirements with 
other review and consultation requirements to avoid duplication of 
effort (40 C.F.R. section 1502.25); and eliminating duplication with 
state and local procedures (40 C.F.R. section 1506.2).
    Throughout my time as Associate Director for NEPA at CEQ, I found 
that the over-arching and common objective to improve the efficiency 
and timeliness of the NEPA process aligned with the goals of many major 
Administration initiatives. Efforts to improve the timeliness and 
efficiency of NEPA reviews are now beginning to yield government wide 
improvements. For example, the Corps of Engineers led the interagency 
effort that developed an up-to-date ``how-to'' guide for synchronizing 
environmental reviews as early as possible.\17\ Another interagency 
effort focused on reducing delay through early engagement and 
coordination with all agencies that may be involved in the 
environmental review and permitting of a proposed action as well as the 
communities that may be impacted is the Unified Federal Review (UFR) 
initiative. The UFR initiative, led by the UFR Steering Committee,\18\ 
establishing an expedited and unified interagency review process to 
ensure compliance with environmental and historic requirements under 
Federal law relating to disaster recovery projects.\19\
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    \17\ The Red Book on Synchronizing Environmental Reviews for 
Transportation and Other Infrastructure Projects available at https://
www.environment.fhwa.dot.gov/strmlng/Redbook_ 2015.asp.
    \18\ Federal Emergency Management Agency, the Department of 
Homeland Security, the Advisory Council on Historic Preservation, and 
CEQ.
    \19\ Unified Federal Environmental and Historic Preservation Review 
at https://www.fema.gov/unified-federal-environmental-and-historic-
preservation-review-presidentially-declared-disasters.
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    Finally, the continued and increased use of a public, transparent, 
Permitting Dashboard \20\ that tracks agencies' progress in 
coordinating and meeting major review and permitting milestones 
incentivizes expeditious preparation and completion of NEPA reviews as 
well as any other necessary reviews and permitting processes. The 
Permitting Dashboard also has the potential to identify other factors 
that impact the efficiency, transparency, and accountability of Federal 
decisions. By providing a fact-base set of data on multiple projects, a 
public dashboard can identify factors that contribute to delays and 
allow for more fully informed discussions of whether further changes 
should be considered and how those changes would interact with the 
other factors at play in reaching a final decision. The overly 
simplistic and, I would argue, misleading reliance on simply cost and 
time, and examples of long or short process times that support a 
presenter's subjective view of the value of the process are not 
helpful. The data on a transparent dashboard and other information can 
then be used identify and develop additional practices to improve the 
process without undermining the value of the reviews, informed decision 
making, and public participation.
---------------------------------------------------------------------------
    \20\ www.permits.performance.gov.
---------------------------------------------------------------------------
                            nepa litigation
    Opponents of NEPA often incorrectly blame NEPA litigation for 
project delays. Just as the number of required EISs is proportionately 
low, so too are the number of lawsuits brought and the even lower 
number of cases that succeed against the Federal Government. The number 
of NEPA cases began to decline in the mid-1970s and has remained 
relatively constant since the late 1980s.\21\ Out of the tens of 
thousands of Federal actions that require environmental reviews under 
NEPA, only a small fraction is challenged in lawsuits. Although 
litigation may have had a larger impact in the past, the total number 
of NEPA-related cases in the past two decades has been proportionately 
very small when compared with the total number of Federal actions 
requiring some level of environmental review under NEPA. Furthermore, 
the main reason that plaintiffs filed suit was, and continues to be, 
their claims that an EIS or EA is inadequate (e.g., information was 
incomplete or the document did not sufficiently analyze the direct, 
indirect, and cumulative effects of an action).\22\ Plaintiffs are 
typically required to show that the agency was made aware of their 
concerns during the NEPA process itself rather than ``ambushing'' the 
agency for the first time in court.
---------------------------------------------------------------------------
    \21\ See Council on Environmental Quality, Environmental Quality: 
25th Anniversary Report, 1996, p. 51, available at https://ceq.doe.gov/
publications/effectiveness_study.html.
    \22\ Litigation Surveys for 2001 through 2013, available at https:/
/ceq.doe.gov/ceq-reports/litigation.html.
---------------------------------------------------------------------------
    Critics of NEPA often contend that the Act produces too much 
wasteful litigation. Such criticism overlooks the essential role the 
courts play by ensuring NEPA is enforced. When Federal agencies' NEPA 
compliance falls short, litigation brought by aggrieved parties is 
often the only recourse to ensure an adequate NEPA review and 
sufficient public engagement for a particular project or activity. 
Agency personnel and industry representatives sometimes complain about 
the pressure that the Act places on agencies to do thorough and 
defensible environmental reviews, lamenting the creation of 
``bulletproof'' EISs. In my experience there are indeed excessive 
documents, but it is not required by courts. Rather it comes from 
agencies ``throwing in the kitchen sink'' instead of focusing their 
attention on the issues that matter.
    Removing or limiting the opportunity for judicial review will not 
guarantee more focused or concise analyses. It is more likely that 
without the enforcement mechanism provided by the courts, Federal 
agency EISs would devolve into rote documents or checklists making NEPA 
a hollow and worthless exercise. Such an outcome further reduces the 
opportunity for public involvement in agency decisions that affect them 
and leads to less informed and effective agency decision making.
    The courts' rulings in NEPA cases have clarified many of the basic 
principles for conducting environmental impact analyses under the Act. 
The application of those principles to the circumstances of a 
particular Federal project, however, is inevitably case-specific and 
fact driven. It is thus not surprising that the courts confront certain 
difficult recurring issues--such as the appropriate level of NEPA 
review, adequate analysis of cumulative impacts, or whether a Federal 
agency has properly determined its action will not have significant 
effects on the human environment--whenever they are confronted with a 
new proposed project or activity.
    The criticism that NEPA generates huge volumes of litigation is 
also not accurate. In my experience, and according to several surveys 
of NEPA litigation, the number of cases filed is proportionately very 
small in comparison to the thousands of Federal actions decided upon in 
a given year. As shown in the table below, according to CEQ litigation 
reports for 2001-2013, there are few cases filed and few cases where a 
proposed project or activity is stopped from proceeding pending further 
action by either the court or the agency.\23\
---------------------------------------------------------------------------
    \23\ See https://ceq.doe.gov/ceq-reports/litigation.html. See also 
P.E. Hudson & Lucinda Low Swartz, 2016 NEPA Cases, NAEP Annual National 
Environmental Policy Act (NEPA) Report, National Association of 
Environmental Professionals, June 2017, p. 31-32 (This paper reflects a 
consistently low number of annual appellate NEPA case decisions ranging 
from 14 to 28 a year, and an 11 year total of fewer than 250).


------------------------------------------------------------------------
                         Number of NEPA Cases    Number of Injunctions/
         Year                   Filed                   Remands
------------------------------------------------------------------------
          2001                     136                       30
------------------------------------------------------------------------
          2002                     148                       40
------------------------------------------------------------------------
          2003                     140                       32
------------------------------------------------------------------------
          2004                     167                       32
------------------------------------------------------------------------
          2005                     118                       43
------------------------------------------------------------------------
          2006                     108                       72
------------------------------------------------------------------------
          2007                      86                       49
------------------------------------------------------------------------
          2008                     132                       35
------------------------------------------------------------------------
          2009                      97                       23
------------------------------------------------------------------------
          2010                      87                       16
------------------------------------------------------------------------
          2011                      94                       21
------------------------------------------------------------------------
          2012                      88                       10
------------------------------------------------------------------------
          2013                      96                       14
------------------------------------------------------------------------


    NEPA actually generates a relatively small volume of litigation 
with concerned parties typically filing about 100-150 NEPA lawsuits per 
year. The proportionately low percentage of cases filed was further 
confirmed when the Forest Service, in support of its Environmental 
Analysis and Decision-Making Initiative, compiled data between Fiscal 
Years 2009 and the first quarter of 2017 and found that it was sued on 
less than 3 percent of all projects.\24\
---------------------------------------------------------------------------
    \24\ Forest Service Environmental Analysis and Decision-Making 
Initiative, USFS, 2017, available at https://vimeo.com/237902205 at 
52:24.
---------------------------------------------------------------------------
    Given the broad range of members of the public with interests 
affected by Federal actions, the types of plaintiffs bringing NEPA 
suits include states and state agencies, local governments, business 
groups, individual property owners, and Indian tribes, and public 
interest groups. This last category, public interest groups, comprise 
the largest number of plaintiffs and range in size from small local 
citizen groups organized around a particular issue or project to large 
environmental organizations.
    Even the tiny fraction of NEPA actions that give rise to court 
suits overstates the significance of litigation because only a few of 
these suits result in court orders blocking government action. 
According to data compiled by CEQ, injunctive relief was not given in 
the majority of NEPA cases. The term ``permanent injunction'' is 
misleading in this context because such a final court order imposes 
only a temporary delay until the agency revises its environmental 
review to comply with NEPA and takes that information into account in 
reviewing the proposed action. Further, the courts have ordered a 
remand of certain issues to the Federal agency in only a relatively 
small number of cases and remands also provide the agency the 
opportunity to revise the NEPA review.
    Some argue that the high percentage of cases won by the Federal 
agencies indicates that litigation is abused. While it is true that in 
a substantial percentage of cases the courts have ruled in favor of the 
defendant agencies and uphold the agency NEPA work, it is equally true 
that there are a good number of cases where the courts have found--
despite courts' deference to the Federal agencies' NEPA work--that 
plaintiffs' challenges had merit.
    NEPA's critics also routinely disparage the motivations of 
plaintiffs who challenge agency environmental reviews. The rules of 
civil procedure require counsel in any litigation to certify, based on 
reasonable inquiry, that the action is not brought for any improper 
purpose, such as to harass or to cause unnecessary delay or needless 
cost, and that the claims presented have a sound basis in fact and law. 
I am not aware of any court sanctioning a NEPA plaintiff for bringing a 
frivolous complaint, or for filing suit for improper purpose, such as 
mere delay.\25\
---------------------------------------------------------------------------
    \25\ See also Robert G. Dreher, Testimony Before the Task Force on 
Updating the National Environmental Policy Act, Committee on Resources, 
Hearing on NEPA: Lessons Learned and Next Steps, November 17, 2005, 
available at https: / / scholarship.law.georgetown.edu/cgi/view 
content.cgi?referer=https://www.google.com/
&httpsredir=1&article=1100&context=cong.
---------------------------------------------------------------------------
    Litigation is expensive and time-consuming. In my experience it is 
generally the last resort that citizens, local governments (such as 
county commissioners) and conservation groups invoke after they have 
been unsuccessful in getting the agency to address their serious 
concerns during the NEPA review. Moreover, environmental plaintiffs 
understand that they face an uphill battle as NEPA requires only 
reasonable, good-faith consideration and disclosure of environmental 
consequences and that a Federal court will not substitute its judgment 
for that of the agency on the wisdom of a proposed project. They also 
appreciate that courts will almost always give the Federal agency the 
opportunity to revisit and revise its NEPA review. Consequently, for 
plaintiffs, a successful outcome occurs when the agency is required to 
correct the NEPA review by fully evaluating and disclosing the 
environmental impacts of a proposed action which may lead to a 
different, more environmentally-sensitive approach--for example, 
adoption of an alternative with less environmental impact, or 
commitment of additional mitigation. Litigation seeking a better 
outcome is based on the belief that identification and disclosure of 
environmental consequences will have an environmentally-beneficial 
effect on government decision making, just as Congress envisioned when 
it enacted NEPA.
                    litigation examples adding value
    The following are summaries of some cases where NEPA litigation led 
to a better outcome. As I stated earlier, cases can be found when NEPA 
takes too long or litigation delays a project; however, outliers do not 
tell the whole story. Actions taken to change the NEPA process or 
access to the courts that do not address the real causes of delay are 
both premature and ill-advised. I strongly believe key factors causing 
delays include the lack of capacity and resources. The cases below 
provide examples of the value provided by a legal remedy when a Federal 
agency's NEPA process is insufficient or inadequate.\26\
---------------------------------------------------------------------------
    \26\ Examples of NEPA success stories and benefits not including 
litigation are available at https://ceq.doe.gov/get-involved/
success_stories.html.
---------------------------------------------------------------------------
Colorado: Canyons of the Ancients National Monument
    The Canyons of the Ancients National Monument in southwestern 
Colorado contains over 6,000 archaeological sites representing 
Ancestral Pueblan and other Native American cultures. As a result of 
the designation, the existing oil and gas leases on the land were 
permitted to run their course but would not be renewed. On the eve of 
the lease's expiration, the lessees proposed a new seismic exploration 
project for the land. However, the Bureau of Land Management's (BLM) 
Environmental Assessment was allegedly based on inadequate cultural 
resource surveys, and, as a result, allowed exploration on the edges of 
several sensitive sites and artifacts. In an effort to protect these 
irreplaceable areas, a coalition of groups led by San Juan Citizens 
Alliance filed suit in Federal district court and were granted an 
emergency injunction. Negotiations between all stakeholders ensued, 
with conservation groups, BLM, and the lessees coming to the table to 
work out a compromise. The result of the negotiations structured an 
exploration project that enabled lessees to obtain the seismic 
information they needed while avoiding the National Monument's most 
significant cultural features and fragile habitats. All in all, it was 
a win-win that balanced energy exploration with cultural resource 
protection, and exemplifies effective multiple-use management of the 
public lands.\27\
---------------------------------------------------------------------------
    \27\ New Energy Project at Monument, Los Angeles Times, August 13, 
2002, available at: http://articles.latimes.com/2002/aug/13/nation/na-
drill13; Energy Exploration Approved in Colorado Monument, Institute 
for Agriculture and Trade Policy, September 25, 2002, available at: 
https://www.iatp.org/news/energy-exploration-approved-in-colorado-
monument.
---------------------------------------------------------------------------
Florida: Scripps Research Institute Florida
    In October 2003, Palm Beach County and Scripps Research Institute 
jointly developed plans for a Biotechnology Research Park to be built 
on the Mecca Farms site--a 1,919-acre parcel in rural western Palm 
Beach County bordered by wetlands and conservation areas. In addition, 
Mecca's wetlands drain into the Loxahatchee River, a nationally 
designated Wild and Scenic River and an essential component of the 
Everglades Ecosystem. In order to develop the area, Palm Beach County 
and Scripps sought approval of a Clean Water Act Section 404 permit 
from the U.S. Army Corps of Engineers to fill wetlands at the Mecca 
Farms. The Corps issued the permit in 2005 based upon an EA concluding 
there were no significant environmental impacts associated with filling 
the wetlands. However, the Corps' EA--designed to identify any 
significant impacts a project may have on both the environment and 
public health--had been limited to only 25 percent of the 1,919 acre 
Mecca Farms site. Environmental groups--who had brought the matter to 
the Corps' attention during the agency process--challenged the adequacy 
of the EA under NEPA. In 2005, a District Court held that the Corps' 
issuance of the permit had violated both the National Environmental 
Policy Act and Clean Water Act and ordered preparation of a new 
environmental review before the project could proceed. During the 
ensuing evaluation process, Palm Beach County and Scripps decided to 
relocate the research park to a new location that minimized 
environmental impacts and saved money by utilizing existing access 
roads. The grand opening of the new facility took place on February 26, 
2009, and today the Scripps Florida Research Institute operates a 
state-of-the-art biomedical research facility focusing on neuroscience, 
cancer biology, medicinal chemistry, drug discovery, biotechnology, and 
alternative energy development employing more than 500 research 
staff.\28\
---------------------------------------------------------------------------
    \28\ Florida Wildlife Federation v. U.S. Army Corps of Engineers, 
404 F.Supp.2d 1352 (2005). Available at: https://www.courtlistener.com/
opinion/2315811/florida-wildlife-federation-v-us-army-corps-of-
engineers.
---------------------------------------------------------------------------
Minnesota: Central Corridor Light Rail
    The Central Corridor Light Rail is a 10.9-mile light rail transit 
line connecting downtown Minneapolis and St. Paul. Running along 
University Avenue for most of the route, the project included 
construction of 18 new stations. In January 2011, the NAACP filed suit 
against the U.S. Department of Transportation (DOT) and the 
Metropolitan Council (the regional transit authority) claiming that the 
final environmental impact statement for the project was inadequate, in 
part because it failed to analyze the short-term impact of project 
construction on surrounding businesses. Specifically, the businesses 
were concerned with the project's removal of street parking, which 
would prevent customers from patronizing their stores. In response, the 
DOT used the NEPA process to hold town meetings, hearings, and 
otherwise engage the community, resulting in a supplemental EIS that 
suggested a range of mitigation measures to help small businesses 
resulting in providing help to small, affected local businesses in the 
corridor cope with the impacts of construction and loss of street 
parking.\29\
---------------------------------------------------------------------------
    \29\ St. Paul Branch of NAACP v. U.S. DOT, 764 F. Supp. 2d 1092 
(2011); see also https: / / metrocouncil.org/ Transportation/ Projects/ 
Light-Rail-Projects/ Central-Corridor/ Environmental. aspx.
---------------------------------------------------------------------------
Washington State: Huckleberry Land Exchange
    Under the proposed Huckleberry Land Exchange, the U.S. Forest 
Service would trade nearly 7,000 acres of mature and old-growth forest 
in Washington's Mt. Baker-Snoqualmie National Forest, including a 
portion of the Muckleshoot Tribe's historic Huckleberry Divide Trail, 
for about 30,000 acres of high-elevation land held by Weyerhaeuser 
Timber Company. Citizen groups and the Muckleshoot Indian Tribe 
challenged this proposal. The court found that the Forest Service 
violated NEPA by failing to consider an adequate range of alternatives 
and by neglecting to analyze the cumulative impacts of the proposed 
exchange. As a result, the Forest Service improved their analysis and 
altered their plans for carrying out the exchange. Ultimately, the 
Huckleberry Land Exchange went forward with a better design that 
protected old-growth forest and culturally and recreationally important 
public lands.\30\
---------------------------------------------------------------------------
    \30\ Muckleshoot Indian Tribe v. Forest Service, 177 F. 3d 800 (9th 
Cir. 1999); see also http://elawreview.org/case-summaries/muckleshoot-
indian-tribe-v-united-states-forest-service.

                                 ______
                                 
Questions Submitted for the Record by Rep. Grijalva to Horst Greczmiel, 
            Former CEQ Associate Director of NEPA Oversight
    Question 1. Can you please provide specific examples of how the 
NEPA process has saved Federal tax dollars by bringing to light 
information that led to cheaper, more efficient projects?

    Answer. Case studies and compilations of success stories provide 
examples that show the value of using the NEPA process to engage the 
public, organizations, and other government entities. The five examples 
below show that alternatives to the initial proposed action shaped by 
collaboratively engaging the public can address the purpose and need 
for the proposed project in a way that is less impactful on the human 
environment and lead to more efficient projects that can include 
reduced and avoided costs.
Highway 26 Bypass
    Highway 26 is a regional road that runs through south-central 
Wisconsin, connecting Illinois to Wisconsin's Fox River Valley. To 
address increasing traffic from trucks and regional drivers on the 
road, Wisconsin's Department of Transportation (WisDOT) proposed the 
construction of a bypass. NEPA provided the opportunity for 
stakeholders to engage in discussions about the project development. 
``NEPA forces us into providing alternatives that are representative of 
the interests of all agencies involved,'' said James Oeth, WisDOT 
project manager. As stipulated by NEPA, several alternatives were 
selected, studied in detail, and made available for public comment. 
``Without NEPA, we would have just asked what the shortest distance was 
and built the road through there,'' said Oeth.
    The final decision created a route with the least impact and 
disruption to the community. For example, while the original route 
would have plowed through Ed McFarland's dairy farm, which sits west of 
Watertown, the final plan navigated around it. ``Public involvement 
helped us . . . the less land we lose, the better,'' said McFarland. 
Additionally, under the final plan, the bypass skirted the community's 
urban service area, instead of destroying pristine land. While not all 
of the community's major requests were accommodated, residents 
appreciated the opportunity to be involved in the process. ``I believe 
NEPA allowed for these alterations to take place,'' said Andy Didion, a 
Jefferson resident. ``The DOT is getting much better and realizing this 
affects people's lives.'' ``We talked out problems and came up with 
solutions that were agreeable to most participants,'' stated Greg 
David, a Jefferson County Supervisor. ``The NEPA process has saved us a 
lot of money and mitigated many of the externalized consequences of a 
freeway expansion project.'' \1\
---------------------------------------------------------------------------
    \1\ The Road to Better Transportation Projects, Wisconsin Highway 
26 Bypass, NEPA Brings Communities to the Table, Sierra Club website, 
retrieved May 2, 2018, from http://vault.sierraclub.org/sprawl/nepa/
wisconsin.asp.
---------------------------------------------------------------------------
Lakeview-Reeder Roads Project
    In Idaho, the Forest Service proposed the Lakeview-Reeder Roads 
project to improve fish passage in Priest Lake and reduce sedimentation 
as part of a Healthy Forest Restoration Project. Public participation 
in the plan's NEPA review brought to light a discrepancy between the 
planned and the required buffer zone for the protection of the 
endangered boreal toad. In response, the Forest Service redesigned the 
proposed road maintenance and construction to adequately protect the 
species.\2\ By informing the public of its plan, listening to citizen 
comments, and modifying the proposed project, the Forest Service 
avoided irretrievably committing taxpayer dollars to a project that 
violated Federal laws, thereby preventing possible litigation and a 
waste of taxpayer money.
---------------------------------------------------------------------------
    \2\ Idaho Panhandle National Forest NEPA Projects: Lakeview-Reeder 
HFRA Project, U.S. Forest Service website, retrieved May 2, 2018 from 
https://data.ecosystem-management.org/nepaweb/
nepa_project_exp.php?project=6258; Lakeview-Reeder Roads Record of 
Decision, U.S. Forest Service, December, 2009, available at: https://
www.fs.usda.gov/nfs/11558/www/nepa/6430_FSPLT1_017770.pdf.
---------------------------------------------------------------------------
Paris Pike
    Kentucky's Paris Pike is a scenic road between Lexington and Paris 
that runs for 13.5 miles through rolling hills dotted with historic 
thoroughbred horse farms. However, its beauty was overshadowed by 
congestion and safety hazards, such as a lack of passing and turning 
lanes. The initial proposed project called for a standard four-lane 
highway but faced opposition from local communities concerned about 
irreparable harm to the historic corridor's natural landscape. A judge 
agreed with the communities and called for revisiting the planning 
process and developing a workable alternative. As a result, a design 
was developed that fit the aesthetics and contours of the land while 
minimizing environmental impacts.
    The new design, which has won national awards, added a shoulder; 
preserved existing trees, fences, and stone walls; and installed 
additional walls and guardrails to increase safety and enhance the 
highway's aesthetics. The new design also converted a historic 
farmhouse into a visitors' center, generating tourism dollars for a 
community that would have lost money if the original project had been 
implemented. ``It has been an immensely successful project,'' said 
Cumberland Sierra Club chapter chair Lane Boldman. ``It preserved 
aesthetic integrity while doing what it was supposed to do: increase 
safety and capacity. It has significantly improved the corridor.'' 
Local resident Hank Graddy said the NEPA process was essential, noting 
that it ``brought people and ideas to the table that otherwise would 
not have been there.'' Paris Pike represents a true compromise 
facilitated by the NEPA process: road expansion without accompanying 
aesthetic and natural destruction.\3\
---------------------------------------------------------------------------
    \3\ Raymond Werkmeister and Donn Hancher, The Paris to Lexington 
Road Reconstruction Project, University of Kentucky College of 
Engineering Kentucky Transportation Center, Sept. 2001, available at 
http://www.e-archives.ky.gov/pubs/transportation/tc_rpt/ktc_02_02_fr79_ 
96_1f.pdf; See also Transportation Research Board presentation 
retrieved May 2, 2018, from https://trid.trb.org/view/650514.
---------------------------------------------------------------------------
Scripps Research Institute
    Palm Beach County Florida and Scripps Research Institute jointly 
developed plans for a Biotechnology Research Park to be built on the 
Mecca Farms site--a 1,919-acre parcel in rural western Palm Beach 
County bordered by wetlands and conservation areas. Mecca's wetlands 
drain into the Loxahatchee River, a nationally designated Wild and 
Scenic River and an essential component of the Everglades Ecosystem. In 
order to develop the area, Palm Beach County and Scripps sought 
approval of a Clean Water Act Section 404 permit from the U.S. Army 
Corps of Engineers to fill wetlands at the Mecca Farms. The Corps 
issued the permit in 2005 based upon an EA concluding there were no 
significant environmental impacts associated with filling the wetlands. 
However, the Corps' EA--designed to identify any significant impacts a 
project may have on both the environment and public health--had been 
limited to only 25 percent of the 1,919 acre Mecca Farms site. 
Environmental groups--who had brought the matter to the Corps' 
attention during the agency process--challenged the adequacy of the EA 
under NEPA.
    The District Court held that the Corps' issuance of the permit had 
violated both the National Environmental Policy Act and Clean Water Act 
and called for the preparation of a new environmental review before the 
project could proceed.\4\ During the ensuing evaluation process, Palm 
Beach County and Scripps decided to relocate the research park to a new 
location that minimized environmental impacts and saved money by 
utilizing existing access roads. The grand opening of the new facility 
took place on February 26, 2009,\5\ and today the Scripps Florida 
Research Institute operates a state-of-the-art biomedical research 
facility focusing on neuroscience, cancer biology, medicinal chemistry, 
drug discovery, biotechnology, and alternative energy development 
employing more than 500 research staff.
---------------------------------------------------------------------------
    \4\ Florida Wildlife Federation v. U.S. Army Corps of Engineers, 
404 F.Supp.2d 1352 (2005), available at: https://www.courtlistener.com/
opinion/2315811/florida-wildlife-federation-v-us-army-corps-of-
engineers.
    \5\ Opening Ceremonies Celebrate New Scripps Florida Biomedical 
Research Facilities, The Scripps Research Institute, February, 2009, 
available at: https://www.scripps.edu/news/press/2009/022609.html.
---------------------------------------------------------------------------
Crenshaw/LAX Transit Corridor Project
    When construction is completed in 2019, the Crenshaw/LAX line in 
Los Angeles CA will run from the Jefferson Park neighborhood in the 
north to Inglewood and El Segundo in the south and add a long-sought 
rail connection from downtown to one of the busiest airports in the 
world. Without the approval of ``Measure R,'' a half-cent sales tax 
approved by Los Angeles County voters in 2009 that provided a dedicated 
funding for 12 metro area transit projects, the city wouldn't have had 
the money to proceed. Early project planning and work on the 
Environmental Impact Statement (EIS) to construct the 8.5-mile line 
connecting two existing subway lines began in 2009. During this review 
process, the Federal Transit Administration (FTA) and Los Angeles Metro 
officials considered public concerns and identified a rarely used 5-
mile long freight rail line instead of building new tracks that would 
have disrupted several neighborhoods and proven far costlier. That 
decision decreased project costs, saved time, and reduced disturbances 
for the nearby community by using an existing right-of-way.
    Throughout the environmental review and planning process, local 
residents were engaged to ensure the project would completed in an 
equitable, beneficial, and resourceful way that met the needs of local 
communities. For example, a station was added to service Leimert Park 
Village, an important cultural center for black residents of Los 
Angeles, and the Crenshaw/LAX Community Leadership Council ensured that 
community issues are considered throughout the planning process.\6\ As 
one of the Federal Transit Administration's first projects piloting a 
new process to help identify and mitigate project risks more 
efficiently, the project's EIS was finalized in less than 2 years in 
2011 and the Crenshaw/LAX light-rail alternative moved forward.\7\
---------------------------------------------------------------------------
    \6\ Community Organizations Shed Light On New Crenshaw District, 
Los Angeles Sentinel, December 2, 2015, available at: https://
lasentinel.net/community-organizations-shed-light-on-new-crenshaw-
district.html; see also About the Crenshaw/LAX Community Leadership 
Council (CLC), Los Angeles County Metropolitan Transportation Authority 
website retrieved May 4, 2018, from https://www.metro.net/projects/
crenshaw_corridor/clc-about/.
    \7\ Final Environmental Impact Statement/Final Environmental Impact 
Report: Crenshaw/LAX Transit Corridor, Federal Transit Administration, 
August 31, 2011, available at: http://media.metro.net/projects_studies/
crenshaw/images/FEIS_FEIR/00_Cover_Table_of_Contents.pdf; Record of 
Decision: Crenshaw/LAX Transit Corridor, Federal Transit 
Administration, December 30, 2011, available at: http://
media.metro.net/projects_studies/crenshaw/images/20111230_ 
CrenshawLAX_Record_of_Decision.pdf.
---------------------------------------------------------------------------
Northwest Corridor Project
    In 2007, the Federal Highway Administration and Georgia Department 
of Transportation (GDOT), in cooperation with other state and Federal 
agencies, proposed to expand I-75 and I-575 in the Atlanta metropolitan 
area's Northwest Corridor to alleviate traffic congestion in one of the 
region's most congested thoroughfares. When completed later this year, 
the Northwest Corridor Project (NWCP) is expected to be the most 
expensive highway project in Georgia's history at nearly $1 billion, 
adding nearly 30 miles of reversible lanes along I-75 and I-575 through 
Cobb and Cherokee counties. The initial design plan proposed an even 
larger project, expanding sections of I-75 and I-575 from 6 to 10 lanes 
by adding 4 general-purpose lanes. Community members using the NEPA 
review process to express their environmental, public health, and 
economic concerns about the project led the Georgia Department of 
Transportation (GDOT) to make improvements to the plan.\8\
---------------------------------------------------------------------------
    \8\ Final Environmental Impact Statement Reevaluation: Northwest 
Corridor Project, Federal Highway Administration and Georgia Department 
of Transportation. October 2011. Available at: http://nwcproject.com/
media/pdfs/REEVAL/FEISReeval13.pdf; Record of Decision: Northwest 
Corridor Project,'' Federal Highway Administration and Georgia 
Department of Transportation, May 2013, available at http://
www.nwcproject.com/media/pdfs/NWCP_ROD_2013.pdf.
---------------------------------------------------------------------------
    Instead of adding new lanes, GDOT's final designed plan called for 
the conversion of the existing medians and road space on I-75 into 
reversible HOV traffic lanes--modifications that will save a 
significant amount of money. In addition, the NWCP modifications 
minimized adverse effects on low-income and minority communities by 
reducing the number of residences and businesses displaced from over 
300 to 18, and reduced the project's impact on the nearby wetlands that 
are home to an endangered species from 4.2 to 0.3 acres. Thanks to the 
NEPA public review process, the NWCP has fewer impacts on local homes, 
businesses, and the environment, and is more cost-effective than the 
original plan. Construction broke ground in October 2014 and the 
project is anticipated to fully open to traffic later this year.

    Question 2. Can you explain the purpose and value of the CEQ's 2016 
Greenhouse Gases and Climate Change Guidance, and what impacts we can 
expect to see with its recent withdrawal?

    Answer. The guidance came about, at least in part, as a result of 
three converging factors. First, the public, the scientific community, 
and the courts are increasingly recognizing the importance of 
greenhouse gas emissions and climate change as an environmental issue 
and characterizing the effects as significant.\9\ The growing number of 
court cases reflect the view that the NEPA process is an appropriate 
venue to address the issue.\10\ Cases, however, are fact specific and 
result in varied approaches to address when and how analysis of those 
issues is appropriate.\11\ Second, CEQ was asked to provide guidance by 
Federal agencies and the public.\12\ CEQ was also formally petitioned 
to consider regulations and guidance on analyzing GHG emissions and the 
impacts of climate change under NEPA.\13\ And third, a major CEQ role 
is the oversight of Federal agencies' implementation of NEPA.\14\ 
Without enforcement authority, CEQ maintains that role through its 
leadership and the support of the agencies and the public by addressing 
and helping to overcome challenges that impede Federal agencies' 
ability to prepare useful and timely environmental reviews.
---------------------------------------------------------------------------
    \9\ For example, see the Intergovernmental Panel on Climate Change 
website, retrieved May 2, 2018, from http://www.ipcc.ch/.
    \10\ For example, see Border Power Plant Working Group v. DOE, 260 
F. Supp. 2d 997 (S.D. Cal. 2003).
    \11\ Michael B. Gerrard, Survey of Climate Change Litigation, New 
York Law Journal, Sept. 28, 2007, available at https://
files.arnoldporter.com/arnold%20&%20porter%20llp.survey%20of%20 
climate%20change%20litigation.new%20york%20law%20journal.september%2028%
202007.pdf.
    \12\ Recommendations of the State, Local, and Tribal Leaders Task 
Force on Climate Preparedness and Resilience, November 2014, at page 20 
(recommendation 2.7) available at http://
www.adaptationclearinghouse.org / organizations / state-local-and-
tribal-leaders-task-force-on-climate-preparedness-and-resilience.htm; 
see also Future Federal Adaptation Efforts Could Better Support Local 
Infrastructure Decision Makers, Government Accountability Office, Apr. 
12, 2012, available at https://www.gao.gov/products/GAO-13-242.
    \13\ International Center for Technology Assessment, Natural 
Resources Defense Council, and Sierra Club, Petition Requesting That 
the Council on Environmental Quality Amend its Regulations to Clarify 
That Climate Change Analyses be Included in Environmental Review 
Documents, Feb. 28, 2008 (the petition requested CEQ issue guidance and 
the petition to amend the regulations was denied on August 7, 2014).
    \14\ 42 U.S.C. 4344.
---------------------------------------------------------------------------
    Throughout its history, CEQ has been shown deference by the courts 
when speaking to how agencies can meet their responsibilities under 
NEPA and the CEQ NEPA Regulations.\15\ Consequently, in the face of the 
continued challenges to when and how agencies were to address 
greenhouse gas emissions and climate change, CEQ had the opportunity--
and the responsibility--to issue guidance that would clarify the 
matter.
---------------------------------------------------------------------------
    \15\ Associations Working for Aurora's Residential Env't v. 
Colorado Dep't of Transp., 153 F.3d 1122, 1127 n .4, 28 ELR 21459 (10th 
Cir. 1998); see also Andrus v. Sierra Club, 442 U.S. 347 (1979) 
(``CEQ's interpretation of NEPA is entitled to substantial 
deference.'').
---------------------------------------------------------------------------
    CEQ issued the guidance to provide for greater clarity and more 
consistency in how agencies address climate change in the environmental 
impact assessment process. Climate change was acknowledged as a 
fundamental environmental issue with effects that should be analyzed 
under NEPA.\16\ Although climate change is a particularly complex 
challenge given its global nature and the inherent inter-relationships 
among its sources, causation, mechanisms of action, and impacts, the 
guidance recognized that analyzing a proposed action's GHG emissions 
and the effects of climate change relevant to a proposed action--
particularly how climate change may change an action's environmental 
effects--could provide useful information to decision makers and the 
public. The guidance used long-standing NEPA principles because such an 
analysis should be similar to the analysis of other environmental 
impacts under NEPA.
---------------------------------------------------------------------------
    \16\ NEPA recognizes ``the profound impact of man's activity on the 
inter-relations of all components of the natural environment.'' (42 
U.S.C. 4331(a)). It was enacted to, inter alia, ``promote efforts which 
will prevent or eliminate damage to the environment biosphere and 
stimulate the health and welfare of man.'' (42 U.S.C. 4321).
---------------------------------------------------------------------------
    Furthermore, the guidance used a reasoned practical approach to 
ease the burden of developing complex analyses by recommending agencies 
use available tools to project GHG emissions, and where applicable 
carbon sequestration, as a proxy for assessing potential climate change 
effects. The guidance also advised agencies to use existing available 
information when assessing the potential future state of the 
environment rather than undertaking new research and thereby extending 
the review process. In short, the guidance provides a pathway for 
agencies to comply with NEPA through more focused, shorter, and less 
resource intensive means than were becoming the norm in order to 
address the many different stakeholder views and court rulings.
    Withdrawing the guidance leaves the agencies without clear 
direction on what should be analyzed and how intensive that analysis 
should be. The result is longer documents containing differing analyses 
that are subject to challenge along with less clarity for decision 
makers, project sponsors, and the public. The hope is that the current 
Administration's notice that the guidance was withdrawn for further 
consideration \17\ will result in new or revised guidance that furthers 
the ability of agencies to address GHG emissions and climate change in 
a practical and reasoned manner. In the absence of such guidance, I 
fear we will continue to see the development of different requirements 
and interpretations by different agencies and courts that will make 
consistent approaches more difficult and lead to longer, less focused, 
and less timely NEPA reviews.
---------------------------------------------------------------------------
    \17\ 82 FR 16576, Apr. 5, 2017, available at https: / / 
www.federalregister.gov / documents / 2017 / 04 / 05 / 2017-06770 / 
withdrawal-of-final-guidance-for-federal-departments-and-agencies-on-
consideration-of-CFR1501.8greenhouse-gas; note that the withdrawn 
guidance is still available on https://ceq.doe.gov/guidance/
ceq_guidance_nepa-ghg-climate_final_guidance.html as is the webpage on 
GHG emissions accounting tools: https://ceq.doe.gov/guidance/ghg-
accounting-tools.html.

    Question 3. During the 2018 State of the Union, President Trump 
called for legislation that would reduce the Federal permitting process 
for infrastructure projects ``to no more than 2 years, and perhaps even 
1.'' Do you believe that a lack of mandated timelines is actually a 
---------------------------------------------------------------------------
hurdle to efficient environmental review?

    Answer. When agencies have adequate resources and training, I 
believe that project specific non-mandatory timelines, or schedules, 
can facilitate the timely development of efficient NEPA environmental 
reviews. Mandated timelines with monetary penalties or ``automatic 
approvals'' for not meeting deadlines do not do so.
    The CEQ NEPA Regulations provide for time limits \18\ and the 
timing of the NEPA review.\19\ What was true when the CEQ NEPA 
Regulations were established in 1978 remains true today--specific time 
limits for the entire NEPA process are too inflexible and individual 
proposed projects vary due to numerous factors (e.g., location, design, 
environmental impact). Consequently, imposing a one-size-fits-all 
approach is impractical. The recent One Federal Decision Memorandum of 
Understanding, builds on the efficiencies provided for in CEQ NEPA 
Regulations \20\ and uses existing rules and best practices such as 
pre-scoping, milestones (non-mandatory schedules) and early dispute 
resolution, to provide for more coordinated and timely environmental 
reviews and authorization processes.\21\
---------------------------------------------------------------------------
    \18\ 40 CFR 1501.8.
    \19\ 40 CFR 1502.8.
    \20\ Memorandum for Heads of Federal Departments and Agencies: 
Improving the Process for Preparing Efficient and Timely Environmental 
Reviews under the National Environmental Policy Act, CEQ, Mar. 6, 2012, 
available at: https: / / ceq.doe.gov/docs/ceq-regulations-and-guidance/
Improving_NEPA_Efficiencies_06Mar2012.pdf.
    \21\ Memorandum of Understanding Implementing One Federal Decision 
Under Executive Order 13807, April 2018, available at https: / / 
www.ferc.gov/ legal/ mou/2018/MOU-One-Federal-Decision.pdf.
---------------------------------------------------------------------------
    While there is value in setting time goals based on similar 
projects, non-mandatory goals are preferable. There is a real risk that 
mandating a time for a decision can lead to either rushed decisions 
that do not fully consider nor seek to avoid negative environmental 
consequences, or denials to avoid making uninformed decisions 
vulnerable to challenges for incomplete information or analyses.
    A timeline should, at a minimum, provide opportunities to stop-the-
clock when appropriate: for example, when applicants need time to 
provide additional information relevant to the NEPA review of a 
requested approval or permit; when a state takes time to identify 
matching funds; or when a pending state, local, or tribal approval or 
permit is necessary for a proposed project to proceed. Most 
importantly, until agencies are provided adequate resources and 
training to conduct efficient and timely NEPA reviews, agencies will 
continue to struggle to prepare timely NEPA reviews.

    Question 4. Do you believe that mandated timelines would lead to 
speedier project completion for most projects?

    Answer. I do not believe that mandated timelines would lead to 
speedier project completion. In addition to my response above, it is 
important to remember that a multitude of factors other than 
undertaking NEPA compliance affect the timing of Federal project 
delivery and that once the NEPA review is completed, and the project 
decided upon, the project must still be implemented.
    In my experience factors that can cause delay include lack of 
funding; changes in the design or planning processes; inadequate staff 
capacity to implement or oversee the NEPA process; changes in 
priorities that keep a proposed project from proceeding; local 
controversy or local opposition to a project; or delays in other (non-
NEPA) permitting or approval processes at the Federal, state, tribal, 
or local level. With regard to the latter, certain Federal actions such 
as highway construction projects and permitting for mining operations, 
cattle grazing, forest thinning, and energy development may require 
compliance with other statutory and regulatory requirements that can 
add time, especially if they are raised late in the environmental 
review process. This is particularly the case when such review or 
permitting requires the participation or input of increasing numbers of 
local, state, tribal, or Federal agencies. In addition, agencies 
responsible for protecting resources are often confronted by problems 
with the project's alternatives analysis, incorrect or incomplete 
information, disagreements or differences of opinion among agencies, 
poor communication with project proponents and other agencies, or the 
environmental or biological analyses associated with the project.\22\
---------------------------------------------------------------------------
    \22\ 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, p. 36, available at 
https://environment.transportation.org/pdf/proj_delivery_stream/
crs_report_ envrev.pdf.
---------------------------------------------------------------------------
    More often than not, factors other than complying with NEPA or the 
NEPA Regulations are the reasons for delaying projects. Those factors 
remain regardless of any mandated timelines for Federal permitting and 
environmental reviews. Coordinated schedules and timelines tailored to 
specific projects with the ability to stop-the-clock for appropriate 
time periods, coupled with ensuring agencies have the capacity to 
prepare effective and timely reviews and permits, offers a better 
approach to improve timeliness.

    Question 5. Do you think there would be negative environmental 
impacts caused by this kind of mandated time limit?

    Answer. In addition to my responses above, mandated time limits 
would cause agencies to decrease the amount of time for two specific 
aspects of NEPA. Public engagement and the consideration of 
alternatives are often pointed to as two of the most time-consuming 
aspects of a NEPA review and would, in my opinion, most likely be 
curtailed by either reducing time for public engagement and comment 
periods or reducing the number of alternatives considered. The value of 
engaging the public and considering reasonable--technically and 
economically feasible--alternatives is significant. This has been 
demonstrated by case studies--success stories--that show the benefits, 
and the avoidance or reduction of adverse impacts, to communities and 
the human environment.\23\ Furthermore, engaging the public in 
reviewing and developing alternatives results in a better understanding 
of the Federal agency and its actions, leading to greater community 
support for the final decision.
---------------------------------------------------------------------------
    \23\ See for example: NEPA Success Stories: Celebrating 40 Years of 
Transparency and Open Government, Environmental Law Institute, 2010, 
available at https: / / ceq.doe.gov/docs/get-involved/
NEPA_Success_Stories.pdf.
---------------------------------------------------------------------------
    At the September 15, 2010, celebration of the 40th Anniversary of 
NEPA sponsored by the Environmental Law Institute and the Partnership 
Project, both Russell Train and Congressman John Dingell reflected on 
the value of NEPA.\24\ Russell Train, former Administrator of the 
Environmental Protection Agency and the first Chairman of the Council 
on Environmental Quality, found that National Environmental Policy Act 
(NEPA) successes demonstrate ``how public involvement and careful 
consideration of alternatives has produced better outcomes--for the 
agencies themselves, for the nation, and for the human environment.'' 
``NEPA covers every situation that we confront,'' Representative 
Dingell said. ``Despite attacks over the years, people realized the 
tremendous success of the statute.''
---------------------------------------------------------------------------
    \24\ https://obamawhitehouse.archives.gov/administration/eop/ceq/
initiatives/nepa/symposium.
---------------------------------------------------------------------------
    It is encouraging to note that a recent study of oil and gas 
development showed that NEPA adds value by reducing certain media 
specific impacts more than would be the case by relying solely on 
existing substantive laws such as the Clean Air Act and Clean Water 
Act. That study also showed that having more alternatives to evaluate 
leads to greater benefits such as protecting more wetlands, disturbing 
less lands, and improving air quality.\25\
---------------------------------------------------------------------------
    \25\ John Ruple and Mark Capone, NEPA--Substantive Effectiveness 
Under a Procedural Mandate: Assessment of Oil and Gas EISs in the 
Mountain West, George Washington Journal of Energy & Environmental Law, 
Winter 2016.
---------------------------------------------------------------------------
    In closing, I believe there is a real risk that mandating a time 
for a decision will lead to rushed decisions that do not fully consider 
nor seek to avoid negative environmental consequences.

                                 ______
                                 

    Mr. Thompson. Mr. Greczmiel, thank you very much.
    The Chair now recognizes Mr. Coleman to testify.

   STATEMENT OF JAMES COLEMAN, PROFESSOR, SOUTHERN METHODIST 
        UNIVERSITY, DEDMAN SCHOOL OF LAW, DALLAS, TEXAS

    Mr. Coleman. My thanks to the Committee. There are a lot of 
studies and statistics about the National Environmental Policy 
Act process, but I don't think any of us in this room disagree 
about those statistics. We are all using the same stats. There 
are about 200 major infrastructure projects every year that 
require an environmental impact statement. If you look at the 
reviews that ended in the year 2016, the average review takes a 
little bit over 5 years.
    So, the two questions for the Committee to consider today 
are, first, should each of these projects have to wait so long 
for their environmental approval; and second, if not, is there 
anything that Congress can do about it?
    On the first question, there has been some bipartisan 
agreement. Both parties have said these reviews take too long. 
For the last 20 years, Democratic and Republican Congresses, 
President Bush and President Obama passed laws and issued 
orders to try to streamline these reviews. Congress and the 
President have asked agencies to track projects, to streamline 
reviews, and to set deadlines, but so far the environmental 
reviews are just getting longer.
    Under President Bush, the average review took 3\1/2\ years. 
By the end of President Obama's term, the average review took 
more than 5 years. And that is the average review for projects 
completed in 2016. We know that these reviews are getting 
longer each year. So, if you were to enter a review process 
today, how long would it take to complete? It is probably going 
to be 6 years, maybe potentially longer.
    So, why do these reviews keep getting longer? On that, I 
think we really need to listen to what the NEPA practitioners 
say, practitioners like Mr. Greczmiel. These reviews take time, 
so every time there is a proposal for streamlining reviews, 
NEPA practitioners say the same thing, ``Well, that might just 
backfire, because if you try to do the reviews faster, the 
courts are going to strike down the reviews, and it is just 
going to take you more time.''
    And I think they might be right. Given how courts review 
NEPA claims, agencies may feel that unless they gold-plate 
their review, unless they really do far more than the statute 
was intended to require, the review will get struck down in 
court.
    When outside groups challenge a permit under NEPA, more 
than half of those lawsuits are filed in the Ninth Circuit. And 
plaintiffs win a lot of those cases. Even if they don't win in 
district court, they might win in the court of appeals. It is a 
minority of cases, but it is a significant percentage.
    In theory, if the government loses one of those challenges 
to a permit, it could appeal that loss to the Supreme Court. 
But the Supreme Court takes very few cases. NEPA has been 
around for about 50 years, and the Supreme Court has taken 17 
NEPA cases.
    What does the Supreme Court say when it takes those cases? 
It always says basically the same thing. In each of those 
cases, the Supreme Court has said first the government did 
enough review, the government has won each of those cases. In 
fact, almost all of those cases have been unanimous decisions 
of the U.S. Supreme Court. And second, the Supreme Court has 
said often, ``Lower courts, cut it out. Stop asking agencies to 
meet an impossible standard in these NEPA reviews.''
    If you are an agency, however, you cannot count on getting 
that Supreme Court review, since they take so few cases. So, 
you might think, if I don't want my analysis overturned, this 
over 5 years, soon-to-be 6 years of review overturned, I had 
better gild the lily. And if I am an investor looking at 
investing in one of these major infrastructure projects in the 
United States, I think if I want to build a major project in 
the United States it is probably going to take me 6 years for 
my environmental review. And even if I get it, there is a 
significant chance that I will be caught up in years of 
litigation.
    Can Congress do anything about that? Well, let me offer two 
proposals.
    First, for some natural gas projects, we have asked that if 
you file a NEPA challenge, you do it within a specified time 
period, and do it in the D.C. Circuit. I don't know any reason 
why all projects aren't as important as natural gas projects. 
What about a solar farm on Federal land, or what about a 
transmission project to support that solar farm? I think it is 
possible that all of those projects should be given expedited 
review in the D.C. Circuit.
    The second proposal that I would offer is that at some 
point the NEPA challenges should end. So, if the government has 
issued a final environmental impact statement and it has been 
over 7 years, 8 years, 9 years, some point, that NEPA 
obligation should no longer be enforceable. Because, again, 
NEPA was intended to be a procedural requirement. It is not 
supposed to be a standard for whether projects are approved. 
So, I think that if you have done more than 6, 7, 8 years of 
review, that should be considered adequate.
    Thank you, and I also look forward to your questions.

    [The prepared statement of Mr. Coleman follows:]
 Prepared Statement of James W. Coleman, Assistant Professor, Southern 
               Methodist University, Dedman School of Law
    The National Environmental Policy Act environmental review process 
is broken. The average time to complete an environmental impact 
statement under the Act is now over 5 years.\1\ Whenever an investor 
considers building U.S. infrastructure that would require a Federal 
permit and impact statement, he or she must consider whether it is 
worth waiting 5 or more years. Will markets change over that time? Will 
the permit be further delayed by court challenges? Would it make more 
sense to invest in another country?
---------------------------------------------------------------------------
    \1\ National Association of Environmental Professionals' (NAEP's) 
National Environmental Policy Act (NEPA) Practice, NAEP Annual National 
Environmental Policy Act (NEPA) Report for 2016, http://www.naep.org/
nepa-2016-annual-report.
---------------------------------------------------------------------------
    These environmental review delays are lengthening at the worst 
possible time for U.S. energy markets. Innovative U.S. companies have 
discovered ways of producing natural gas, oil, and renewable power far 
more cheaply. But U.S. consumers and producers will only benefit from 
these new, cleaner sources of energy if they can be connected to 
markets with new pipelines and power-lines. Across the country, new 
energy transport facilities are waiting for Federal permits to unlock 
the benefits of America's new energy renaissance.\2\
---------------------------------------------------------------------------
    \2\ James W. Coleman, Pipelines & Power-lines: Building the Energy 
Transport Future, 79 Ohio St. L.J. ___ (2018).
---------------------------------------------------------------------------
    The growing National Environmental Policy Act delays are simply 
unreasonable. In the countries that the U.S. generally views as 
environmental leaders, these reviews generally take less than 2 
years.\3\ Canada has recently proposed expanding the scope of its 
reviews and completing them in 300 days.\4\
---------------------------------------------------------------------------
    \3\ Philip K. Howard, Two Years, Not Ten Years: Redesigning 
Infrastructure Approvals, Common Good, September 2015, https://
www.commongood.org/wp-content/uploads/2017/07/2YearsNot10Years.pdf.
    \4\ Government of Canada, A Proposed New Impact Assessment System, 
https://www.canada.ca/en/services/environment/conservation/assessments/
environmental-reviews/environmental-assessment-processes.html 
(describing proposal).
---------------------------------------------------------------------------
    Each successive administration has tried to address this slow-
rolling disaster for investment in the U.S. economy. President George 
W. Bush issued executive orders and laws designed to expedite 
environmental reviews.\5\ President Obama also signed multiple bills 
and memoranda designed to urge faster environmental reviews.\6\ 
Finally, President Trump issued an executive order to streamline 
permitting and recently followed it up with a memorandum of 
understanding between agencies to speed environmental reviews.\7\
---------------------------------------------------------------------------
    \5\ Executive Order 13274, Environmental Stewardship and 
Transportation Infrastructure Project Reviews, Sept. 18, 2002; Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (2005) Public Law No. 109-59.
    \6\ Fixing America's Surface Transportation Act (2015), Public Law 
No: 114-94, Title XLI; Moving Ahead for Progress in the 21st Century 
Act (2012) Public Law No: 112-141. Exec. Order 13,604, Improving 
Performance of Federal Permitting and Review of Infrastructure 
Projects, Mar. 22, 2012, Executive Presidential Memorandum, Expediting 
Review of Pipeline Projects from Cushing, Oklahoma, to Port Arthur, 
Texas, and Other Domestic Pipeline Infrastructure Projects, Mar. 22, 
2013.
    \7\ Exec. Order 13,807, Presidential Executive Order on 
Establishing Discipline and Accountability in the Environmental Review 
and Permitting Process for Infrastructure, Aug. 15, 2017; Memorandum of 
Understanding Implementing One Federal Decision Under Executive Order 
13807, https://www.whitehouse.gov/wp-content/uploads/2018/04/MOU-One-
Federal-Decision-m-18-13-Part-2-1.pdf.
---------------------------------------------------------------------------
    Thus far, these bipartisan efforts have failed. A 10-year 2008 
study found that the average NEPA review took 3.4 years and was getting 
longer.\8\ A 2015 Department of Energy study found that the average 
NEPA review took over 4 years.\9\ The most recent study shows that 
these reviews now take over 5 years.\10\ As President Obama's 
regulatory czar put it, ``If the permitting bureaucracy were a 
supervillain, it would be the Blob.'' \11\
---------------------------------------------------------------------------
    \8\ Piet Dewitt & Carole A. DeWitt, How Long Does It Take to 
Prepare an Environmental Impact Statement?, 10 Environmental Practice 
164 (2008).
    \9\ United States Department of Energy, Lessons Learned Quarterly 
Report, Mar. 2016, http://energy.gov/nepa/downloads/lessonslearned-
quarterly-report-march-2016. A 2014 study from the U.S. Government 
Accountability found that the average time for a NEPA review was 4.6 
years. U.S. Government Accountability Office, Little Information Exists 
on NEPA Analyses, Apr. 2014, https://www.gao.gov/assets/670/662543.pdf.
    \10\ National Association of Environmental Professionals, supra 
note 1.
    \11\ Cass R. Sunstein, Trump Did Something Good This Week, 
Bloomberg (Aug 17, 2017) https://www.bloomberg.com/view/articles/2017-
08-17/trump-did-something-good-this-week.
---------------------------------------------------------------------------
    Right now, the Blob is winning: we have lost decades of investment 
while environment reviews grow longer and longer. How can we ensure 
that the U.S. does not fall behind our global competitors?
    First, we must address the root cause of delay: judicial rulings 
that constantly demand more and more analysis in NEPA reviews. NEPA 
impact statements were once less than 10 pages \12\ and current 
regulations say they should be under 150 pages.\13\ But four decades of 
judicial nitpicking has forced agencies to write longer and longer 
reviews--generally well over a thousand pages. Even a finding of no 
significant impact--a finding that a full environmental impact 
statement is not required because the project has no significant impact 
on the environment--can be well over a thousand pages.\14\
---------------------------------------------------------------------------
    \12\ Daniel A. Dreyfus, NEPA: The Original Intent of the Law, J. 
Prof. Iss. Eng'g Educ. & Prac. 109, no. 4 (1983), pp. 252-3.
    \13\ 40 CFR Sec. 1502.7.
    \14\ U.S. Army Corps of Eng'rs, Mitigated Finding of no Significant 
Impact, Environmental Assessment Dakota Access Pipeline Project 
Williams, Morton, and Emmons Counties, North Dakota (Jul 2016), 
available at http://www.energylawprof.com/wp-content/uploads/2017/03/
DAPL-EA-VOL-1.pdf & http://www.energylawprof.com/wp-content/uploads/
2017/03/DAPL-EA-Vol-2.pdf.
---------------------------------------------------------------------------
    The threat of judicial review compounds the harm that extended 
reviews do to the national economy. Investors can count on waiting over 
5 years for their permit, but even when they have it, it can be 
invalidated at any time by a lawsuit that will send them back to the 
agency to wait for a fix. And that fix will, of course, itself be 
subject to judicial review.
    Critics of NEPA streamlining now claim that if reviews are 
conducted more promptly, the courts will simply strike them down.\15\ 
Respectfully, if the courts believe that National Environmental Policy 
Act reviews should take a minimum of 5 years, then either the Act or 
its interpretation, must be changed. Americans, as part of the world's 
most litigious society, may have grown used to environmental reviews 
stretching over decades, but investors know that they can invest in 
other countries where the permitting system is more predictable.\16\
---------------------------------------------------------------------------
    \15\ Ellen M. Gilmer, Critics on new leasing policy: `BLM is 
inviting lawsuits', E&E News, Feb. 2, 2018, https://www.eenews.net/
stories/1060072713.
    \16\ Royal Economic Society, The `Litigious Society': Why Americans 
Spend More On Lawsuits Than Brits, Jul 2005, http://www.res.org.uk/
details/mediabrief/4388681/The-Litigious-Society-Why-Americans-Spend-
More-On-Lawsuits-Than-Brits.html; Paul H. Rubin, More Money Into Bad 
Suits, N.Y. Times, Nov. 16, 2010, https://www.nytimes.com/
roomfordebate/2010/11/15/investing-in-someone-elses-lawsuit/more-money-
into-bad-suits.
---------------------------------------------------------------------------
    Second, we must be willing to consider legislative medicine strong 
enough to address the severity of the disease. For example, when a 
company is forced to wait an unreasonable length of time for a permit, 
that permit should eventually be immunized from invalidation under 
NEPA. After all, if a government issues an environmental impact 
statement and permit 6 years after a project is proposed, what is the 
benefit of allowing judicial review of that environmental impact 
statement? The environmental review took 5 years--seven times as long 
as a review would take in Canada. If a court believes that is still not 
enough review, what more would it like: 12 years of review?
    And if the government's review is still truly inadequate after 6 
years, why should the private company building the project be punished 
further? If the government had wanted to, it could have denied the 
permit at any time in the preceding 6 years. If it remained committed 
to the project through multiple administrations and successive 
congresses, what practical purpose is achieved by further delay?
    If NEPA review was precluded after some interval--whether 6 years, 
8 years, or 10--the government would still have an incentive to issue 
timely reviews. Project proponents do not want to wait 6 years for a 
permit--they would like their reviews and permitting completed within 1 
or 2 years. But a time limit would solve the worst cases of delay and 
address investors' worst fears.
    At a minimum, uncertainty for permit applicants should be reduced 
by expediting judicial review of NEPA lawsuits. Suits to invalidate 
permits using NEPA should be treated like challenges to Federal 
environmental regulation--suits should go straight to the Federal 
Courts of Appeal and should be filed within 60 days after the Federal 
permit is granted.
    Third, we must resist the never-ending calls to further expand 
environmental reviews. The most recent effort is the call to consider 
the ``upstream'' and ``downstream'' impact of energy projects--going 
beyond the pipeline to consider how a pipeline will encourage energy 
use elsewhere. For example, advocates want the Federal Energy 
Regulatory Commission to calculate how natural gas pipelines encourage 
gas drilling upstream of the pipeline and encourage burning gas 
downstream of the pipeline. They say we should (1) estimate how much 
extra carbon dioxide these pipelines will encourage in other places and 
then (2) multiply that number by the social cost of carbon that was 
used under the Obama administration to find (3) a number for the 
climate harm encouraged by these projects.
    This convoluted theory is an unhelpful distraction from the core 
environmental review process for pipelines.\17\ Pipeline reviews should 
maintain their traditional focus on environmental impacts from 
construction and operation of the pipeline. Between stream crossings, 
the danger of spills and explosions, and land-use impacts, there is 
plenty to consider in the already-delayed environmental review process.
---------------------------------------------------------------------------
    \17\ James W. Coleman, Beyond the Pipeline Wars: Reforming 
Environmental Assessment of Energy Transport Infrastructure, 2018 Utah 
L. Rev. 119 (2018).
---------------------------------------------------------------------------
    By contrast, it is not possible to say how a single pipeline will 
impact oil or gas use in continent-wide energy markets. For example, if 
a pipeline or liquefied natural gas facility ships new gas to a foreign 
market, will that market burn less coal than it otherwise would have? 
Or will it build less wind power than it would have? These questions 
cannot be answered with any confidence.\18\
---------------------------------------------------------------------------
    \18\ James W. Coleman & Sarah Marie Jordaan, Clearing the Air: How 
Canadian Liquefied Natural Gas Exports Could Help the World Meet Its 
Climate Goals, C.D. Howe Institute, Issue Brief (2016).
---------------------------------------------------------------------------
    The futility of these reviews can be seen from the most careful and 
state-of-the-art ``upstream'' emissions review that has yet been 
attempted: the State Department's review of whether the Keystone XL 
pipeline would encourage oil production in Canada. The State Department 
reviewed this project for 7 years and finally concluded that the 
pipeline would probably not increase oil production in Canada--indeed 
it would likely lower worldwide emissions because, without it, the oil 
would just be transported by trains that emit more greenhouse gases 
than pipelines.\19\ But environmental groups accurately pointed out 
that, if one used different assumptions, one could reach different 
conclusions--under some assumptions the pipeline would increase oil 
production in Canada and worldwide greenhouse gas emissions.\20\ 
Ultimately, the State Department decided that the pipeline should be 
rejected because, contrary to its own analysis, the pipeline would be 
``perceived as enabling further [greenhouse gas] emissions globally.'' 
\21\ Seven years of review and the State Department's best economic 
modeling of upstream emissions produced a result that even the 
Department decided was so hypothetical that it should be subordinated 
to contrary popular perception. This should not be the model for all 
energy transport project reviews.
---------------------------------------------------------------------------
    \19\ United States State Department, Final Supplemental 
Environmental Impact Statement (Jan. 2014) at ES-34 & Table ES-6 
(estimating that rejecting the pipeline lead to higher greenhouse gas 
emissions than approving it because all the oil would be transported by 
rail, which requires ``28 to 42 percent'' more greenhouse gas emissions 
than pipeline transport).
    \20\ Coleman, Beyond the Pipeline Wars, supra note 17 at 144-45.
    \21\ United States Department of State, Record of Decision and 
National Interest Determination (Nov. 3, 2015) 29 http://
www.energylawprof.com/wp-content/uploads/2016/01/KeystoneXL.Record-of-
Decision.pdf (emphasis added).
---------------------------------------------------------------------------
    Americans can still be proud that the Federal Government considers 
the environmental consequences of its action. And we can be proud of 
the expertise and care that goes into these environmental reviews. But 
Americans can only be dismayed as these already-overlong reviews grow 
lengthier. NEPA was once called the ``Magna Carta'' of environmental 
law.\22\ Congress must help it regain that legacy so that it does not 
become a ``Bill of Pains and Penalties'' for U.S. investment in the 
21st century.
---------------------------------------------------------------------------
    \22\ Arthur W. Murphy, The National Environmental Policy Act and 
the Licensing Process: Environmentalist Magna Carta or Agency Coup De 
Grace?, 72 Colum. L. Rev. 963, 963 (1972).

---------------------------------------------------------------------------
                                 ______
                                 

    Mr. Thompson. Thank you, Mr. Coleman.
    I want to thank the panel for their testimony, remind the 
Members that Committee Rule 3(d) imposes a 5-minute limit on 
the questions. I think we have votes in about an hour, plus I 
don't want to be labeled as a wimp by Chairman Bishop.
    [Laughter.]
    Mr. Thompson. That is my honest motivation here. The 
Chairman will now recognize Members for questions they may wish 
to ask the witnesses, and I will start by recognizing myself 
for 5 minutes.
    Ms. Hamsher, thank you for being here. It is great to have 
a constituent and a fellow Penn Stater with us today.
    Ms. Hamsher. Thank you.
    Mr. Thompson. Thanks for telling the Committee about your 
experiences dealing with the BLM and NEPA regulations. It 
certainly sounds like aggressive NEPA reviews have negatively 
impacted your ability to do your job. And based on what you 
have heard, you are not the only one who has had similar 
experiences.
    I would like to go back to the environmental impact 
statement and the public comments that were filed with the BLM. 
Could you tell me more about your experiences surrounding these 
public comments?
    Ms. Hamsher. Yes. Thank you for asking that question. When 
we had the original environmental assessment put out for public 
comment, many of the comments came back and extensive lists of 
questions as far as how close will vehicles be to residential 
houses on public roads, so I had to hire a team to come out and 
measure the distance from a public road to residential homes 
within the forest. It was really quite a challenge, compiling 
information on a pipeline that we have nothing to do with. We 
do not own the pipeline in that area.
    So, it was really challenging to get this information 
together and get it in to BLM to respond, to allow them to 
respond to public comment.
    Mr. Thompson. It sounds like BLM really relied on you to 
equip them to be able to respond to the public comments.
    Ms. Hamsher. They did. They did.
    Mr. Thompson. Interesting.
    Ms. Hamsher. And we hired numerous consultants to gather 
the data that they were looking to get.
    Mr. Thompson. Can you tell me how many conventional wells 
are on Federal land in the Wayne National Forest?
    Ms. Hamsher. As I understand it, there are roughly 1,200 
producing wells on the Federal surface of the Wayne National 
Forest, as we speak.
    Mr. Thompson. So, it is a lot like my national forest that 
I am privileged to represent, the Allegheny National Forest.
    Ms. Hamsher. Right.
    Mr. Thompson. It is a national forest, it is an oil-
producing area, an energy-producing area.
    Ms. Hamsher. Right.
    Mr. Thompson. Part of the national forest responsibility is 
to make sure that we have the resources that we need.
    Since your wells would have no additional surface impact, 
why is BLM saying that they have an issue with your permit, as 
opposed to the others in the long history of BLM permitting?
    Ms. Hamsher. Right. Initially, we thought that we qualified 
for a categorical exclusion, due to the fact that it was a sub-
surface parcel with no Federal surface impacts.
    Their stance, I think, was that we were going to all move 
forward by including the BLM. But when some of the 
environmental NGOs came and put a suit against the BLM for 
leasing the Federal minerals, BLM changed their mind then and 
wanted to do a full-blown environmental review.
    Mr. Thompson. The entire purpose of the National Forest 
System, and we are very proud that was created by a 
Pennsylvania person, is to actually provide precious resources 
to the American public. After all, the public owns those 
forests.
    As NEPA continues to be weaponized, which leads to the 
decrease of responsible resource production, what are the 
impacts that you have seen on local communities?
    Ms. Hamsher. As you know, we are in that Appalachian Basin. 
It is quite an economically depressed area. This has been a 
godsend to the landowners in that area and the communities, the 
schools receiving tax money, a lot of the economic boom for 
this area, it has been great.
    Certainly, they are in a position to continue to have 
decreased unemployment rates, they have decreased substantially 
over the years, there have been a lot of studies done on that 
over the past couple of years with oil and gas development. So, 
it has been quite impactful.
    Certainly, for this particular area, and where the Wayne 
National Forest is, it has been really suffering. There was a 
plant that recently closed down and a lot of people lost jobs. 
A lot of the area suffered tax revenues not being delegated to 
them anymore. So, having oil and gas in this area, our 
landowners being able to benefit, has been great.
    Mr. Thompson. Yes. Thank you very much, and I yield back 
the balance of my time.
    Ms. Hamsher. Thank you.
    Mr. Thompson. I am pleased to recognize Mr. Lowenthal for 5 
minutes of questions.
    Dr. Lowenthal. Thank you, Mr. Chair. Of all the issues that 
we cover in this Committee, I continue to think that NEPA may 
be the most important issue in my congressional district.
    Let me tell you about the district. It includes what the 
locals in my district, or people in my district, used to call--
although fortunately not as much anymore, if not any more--what 
used to be called the diesel death zone, which are the 
neighborhoods of low-income and minority communities that 
border the busiest port complex in the Nation.
    Historically, these communities have had above-average 
rates of asthma attacks, cancers, and other health issues that 
are associated with air pollution. NEPA has been the Federal 
tool that these communities in my district have used for 
weighing as major projects have been evaluated and finalized, 
and it has been very, very helpful to really changing the 
culture and enabling our ports to have the greatest economic 
growth and the development of the cleanest ports in the Nation, 
if not the cleanest ports now in the world. So, we cannot do 
away with this, one of the central tools for protecting public 
health.
    But my question is that one of the central aspects of the 
National Environmental Policy Act was the creation of the 
Council on Environmental Quality, or CEQ. The vision for CEQ is 
that it would be a central office for helping agencies deal 
with their commitments under NEPA, and would help protect 
communities and the environment, while helping the NEPA process 
move more smoothly and efficiently.
    Unfortunately, the current Administration has all but done 
away with CEQ. It has moved the Council out of its long-term 
home near the White House, it has reassigned career employees 
and all but shuttered its operations. As far as I know, there 
is no nominee for CEQ Director at this time, and there are no 
members of the Council. This is another way, I believe, that 
the Trump administration, President Trump, is knowingly 
shirking its legal responsibility to work toward policies that 
protect Americans' health and the environment. And I personally 
find it appalling.
    My questions are for Mr. Greczmiel.
    Mr. Greczmiel, can you please explain to us the type of 
activities you undertook when you worked for CEQ, and how CEQ 
helped the NEPA process go smoothly?
    The second part of that question is, is CEQ able to operate 
without having any members of its Council?
    And in your opinion, is having an empty Council legal? The 
Council on Environmental Quality is mandated by law through the 
National Environmental Policy Act. Not having any Council, is 
this legal?
    So, those are my questions.
    Mr. Greczmiel. Thank you. I have retired from the practice 
of law.
    Dr. Lowenthal. All right.
    Mr. Greczmiel. Whether or not it is legal I think misses 
the point that it is important that it have leadership.
    CEQ, for the first time that I am aware of, has been going 
for a long period of time without someone at the helm who is 
recognized as leading the effort there.
    Dr. Lowenthal. Or a Council.
    Mr. Greczmiel. I might point out that when I retired at the 
end of 2015, there was one position in CEQ that was full-time, 
dedicated to NEPA. As you indicate, one of CEQ's key missions 
is to aid agencies in implementing the statute. Fortunately, 
after I left, there was a second position created. Two 
positions overseeing Federal agencies, all 85 of them, and 
their implementation of NEPA.
    I will just briefly touch on some of the initiatives that I 
was able to work on while I was there. And I think that they 
are beginning to show some progress, that being there is 
consensus in all the studies that have taken place, in all the 
task forces that have been held.
    I headed up one, Mr. Pombo headed up one, Ms. McMorris 
headed up one. They all found that if agencies started their 
reviews without engaging all of the other Federal agencies, or 
state or local agencies that had an interest in the matter, 
that they might likely overlook something. If they overlooked 
the local populous, they might not know which issues they 
should look at in depth, and which ones they shouldn't.
    So, rather than creating documents that are broad with the 
kitchen sink approach that we have heard about--and with all 
due respect, the current median time--not average, but median 
time--is about 3.7 years for an EIS--agencies have been able to 
sculpt their analyses more wisely. We have had inter-agency 
efforts that have focused on how to bring together all of the 
different interests.
    Mr. Thompson. I am sorry, the gentleman's time has expired.
    I will now recognize Mr. McClintock for 5 minutes of 
questions.
    Mr. McClintock. Great, thank you, Mr. Chairman.
    Mr. Coleman, first let me get your reaction to the 
principal point that we have heard from the Minority that there 
is nothing to see here, no big deal, there are only 200 
lawsuits filed every year, that is 1 percent of the total 
environmental reviews, and categorical exclusions are applied 
to 95 percent of them. Nothing to see here, folks. Move along.
    Mr. Coleman. Yes, there is no disagreement on the number, 
again, 95 percent of projects that would, in theory, require a 
permit are approved under a categorical exclusion.
    I would encourage you to look at what those categorical 
exclusions are for. Some common things would be if you wanted 
to build a bike lane, if you wanted to put some signage up on a 
highway, or if you wanted to do some landscaping on a highway.
    I think there is no danger of us falling behind other 
countries in landscaping on the size of our highways. And then 
I am glad it doesn't take 7 years of environmental review to 
figure out if we should put up a ``delays ahead'' sign.
    Mr. McClintock. How about forest managing, thinning a 
forest to assure that the timber has enough room to grow and 
resist disease, pestilence, drought, and ultimately 
catastrophic wildfire?
    Mr. Coleman. Yes, so each of those projects, if it is on 
the border, as Mr. Greczmiel said, you are going to have to do 
an environmental assessment. Those environmental assessments 
are, in theory, supposed to be substantially shorter than 
environmental impact statements, which are supposed to be 300 
pages, but typically are well over 1,000.
    Mr. McClintock. We have not been able to get a categorical 
exclusion for forest thinning.
    Mr. Coleman. Right.
    Mr. McClintock. I represent the Sierra Nevada, and the 
result is we now have four times the timber load that the land 
can support, and the timber is dying. We have lost well over 
1,000 square miles of forest land in my district alone over the 
past 5 years to catastrophic fire. The pine stock is pretty 
much completely wiped out at this point because the timber is 
so over-crowded it can no longer resist the stresses placed on 
it by drought, pestilence, and disease.
    We had a categorical exclusion signed into law, but only 
for the Tahoe Basin. The Region 5 manager at the Forest Service 
tells me that that has taken their environmental assessment 
from 800 pages down to 40. Does that sound about right?
    Mr. Coleman. Yes, absolutely. Typically, that is going to 
require a lot--yes, those environmental assessments can easily 
go 800 pages.
    Mr. McClintock. What I am hearing in my district is, once a 
fire has come through and killed off the timber, it still has 
enormous salvage value, but that value declines fairly rapidly. 
It now takes a full year under NEPA on a fast track just to do 
an environmental assessment to remove the dead timber. And by 
that time it has lost well over half of its value.
    If anybody files a lawsuit, they don't have to win it, they 
just have to file it, it will run out the clock on the 
remaining auction. The result is timber that we used to be able 
to harvest and then use the proceeds to replant now just sits 
there and rots. Meanwhile, brush builds up and a few years 
later you have 5 to 8 feet of brush. Those big, dead trees that 
we once were able to remove now topple on that brush and you 
have a perfect fire stack for a second generation fire.
    We have talked about thinning. I have a little district in 
my congressional district, a town called Forest Hill. They have 
been trying to get an 18-foot spillway gate added to the dam 
that provides for their water supply, $2 million for the 
spillway gate, this is a town of about 5,000 people. But on top 
of that, they have to budget at least $1 million for 
environmental reviews, $2 million for environmental 
mitigations, and then $6 million is the fee that the Forest 
Service has handed them to relocate a trail and a handful of 
campsites.
    What is that doing to our ability to provide water for our 
regions, as well as to maintain the health of our forests?
    Mr. Coleman. Well, it is certainly a problem, and I think 
we can all say in the abstract to agencies, be quicker to 
implement categorical exclusions, et cetera. But the reality is 
the agencies are constantly faced with the threat of 
litigation.
    Mr. McClintock. Well, it used to be we could thin out a 
forest, sell that excess timber, and the foresters would come 
and identify the timber, and we would actually generate money 
for the Treasury that could then be used for other forest 
management purposes.
    Now, they are telling me the environmental assessments cost 
far more than what we can get back as timber, so a lot of those 
operations simply no longer take place. Has anybody done a 
study on the environmental damage caused by NEPA, as calculated 
by habitats incinerated, acreage destroyed by fire, and the 
like?
    Mr. Thompson. The gentleman's time has expired.
    Mr. McClintock. Can I get a yes or no?
    Mr. Coleman. We don't have enough studies on that. There 
are a number of studies we should be doing on NEPA.
    Mr. Thompson. I am pleased to recognize Mr. Huffman for 5 
minutes.
    Mr. Huffman. Thank you, Mr. Chairman. And I do want to 
thank you for inviting a witness to talk about the Point Reyes 
National Seashore, one of the most amazing, awe-inspiring 
landscapes anywhere in the country. This is a place where 
historic dairies and ranches are an integral part of the fabric 
of this great national park unit, and also the surrounding 
Marin County agricultural community.
    And while I appreciate Dr. Watt's research, it is important 
to clarify that her testimony, at least in some elements, does 
not reflect what I believe to be the prevailing view of 
ranching families in Point Reyes today.
    Had the Majority invited a witness from the Point Reyes 
Ranchers Association, a group that I work with and meet with 
regularly, you would have heard some of the positive aspects of 
this unique relationship between the Park Service and the 
ranchers. It is not a perfect relationship. But in my 
experience, most ranchers regard the Park Service as a more or 
less decent landlord, not the capricious, heavy-handed, and 
anti-agriculture agency that is sometimes portrayed by its 
critics.
    Most ranching families in Point Reyes don't want to fight 
about the past. They don't want to re-litigate whether 
Secretary Salazar should have renewed the Drakes Bay Oyster 
Company lease, and they don't want to be at war with the Park 
Service. These ranchers are looking ahead, and they are 
actually working right now, together with the Park Service, as 
parties to a settlement that I hope will lead to long-term 
leases to keep our historic ranches and dairies as working 
landscapes in the Point Reyes National Seashore in perpetuity.
    I would like to ask unanimous consent to include in the 
record two recent letters, just as examples of this, from 
ranchers in my district making that point in more detail.
    Mr. Thompson. Without objection.

    [The information follows:]

Working with the park
    As ranchers in the Point Reyes National Seashore whose lives will 
be deeply affected by the ongoing general management plan amendment, we 
feel the need to step out of our comfort zone and make our views on the 
planning process clear. It is too important of a topic for us to remain 
silent. We want it to be known that we are in alignment with David 
Evans and Claire Herminjard's comments they made in a letter to the 
Light last week.
    We understand the value and importance of this planning process, 
and have positive and mutually respectful relations with National Park 
Service staff. We expect to work constructively with N.P.S. throughout 
the current planning process and beyond. We are actively engaged in the 
G.M.P.A. planning process and believe that through this work we can 
find solutions to various concerns affecting different stakeholders. 
Some topics at hand are complex and require the thoughtful approach 
established by the public planning process before us. The process can 
build mutual trust and consensus with different stakeholders and 
increase public confidence in the management of the seashore.
    We believe promoting exchanges between environmentalists, ranchers 
and the N.P.S. will lead to a better understanding of the issues around 
ranching and the environment in the seashore--resulting in a G.M.P.A. 
that will help the seashore become a model for productive agriculture 
on public lands throughout the United States, a long-term benefit for 
all.

                                              Bill and Nicolette Niman;
                                                  Bob and Ruth McClure;
                                                 Dan and Dolores Evans;
                                                        Julie Rossotti;
                                                           Betty Nunes;
                                                         Bob Giacomini;
                                            and Tim, Tom and Mike Kehoe
                                          Point Reyes National Seashore

                                 *****

A moderate rancher voice
    As current ranchers and leaseholders in the Point Reyes National 
Seashore, we feel the need to express our desire for a peaceful 
planning process that embraces cooperation with the National Park 
Service, our local environmental groups and the greater public with the 
goal of seeing a General Management Plan update that provides for 
optimal public use of our national park as well as long-term leases for 
the ranching families who steward these lands. We are proud to be a 
part of this process and trust our park service to understand not only 
the cultural and historical significance of ranching in the park, but 
also how our activities contribute ecological management services and 
enhanced ecosystems for our varied wildlife.
    We also feel the strong need to express our concern over recent 
activities by the newly formed Resilient Agriculture Group. We 
understand that these may be well-intentioned citizens and fellow 
ranchers and we appreciate their support of ranching in the seashore. 
That said, we are deeply concerned by their methods for expressing 
their support and believe their contentious actions are wholly counter-
productive to completing the management plan update and securing long-
term leases for ranchers.
    Additionally, it is critical for us to note that often in the 
media, the Point Reyes ranchers are lumped together as having one 
viewpoint. This is simply not the case, and a rather narrow scope of 
reporting. We, among several of our ranching peers, are not supportive 
of antagonistic tactics, such as those used by RAG, but rather trust in 
the park service process. We are also highly concerned that the Point 
Reyes Seashore Ranchers Association tends to have one voice in the 
media--that of Kevin Lunny. While we respect Mr. Lunny's right to his 
views, neither he nor the ranchers association speak for all ranchers.
    We are here to say that we hope the voice of the moderate rancher 
rings true through this process and that the park service, the general 
public and our community does not let the cry of conflict be the only 
echo in the chamber. To emphasize, we, as a ranching family on Point 
Reyes, support the park in their efforts to complete a fair and 
comprehensive general management plan update and look forward to 
proactively participating in any way we can in that due process.

                                      David Evans and Claire Herminjard
                                          Point Reyes National Seashore

                                 ______
                                 

    Mr. Huffman. Thank you, Mr. Chairman.
    Now, Dr. Watt, I appreciate that you started off your 
testimony with the caveat that you don't want to be associated 
with weakening environmental laws, and you have probably 
figured out from the title of this hearing, from the Chairman's 
opening comments, and some of the other discussion that that is 
really what this is all about. So, I was glad to hear your 
comment, that you don't support that general agenda. But I want 
to clarify a little more specifically, because this Committee 
does not just attack NEPA generally, it actually does some very 
specific things.
    For example, you don't support waiving or weakening NEPA 
reviews of timber harvesting or oil and gas drilling, as the 
Majority has repeatedly proposed, do you?
    Dr. Watt. No, I do not.
    Mr. Huffman. This Committee has approved legislation to 
basically take carbon pollution and climate change off the 
table in NEPA analyses. You don't support that, do you?
    Dr. Watt. Definitely not.
    Mr. Huffman. I appreciate that. Moving on, Dr. Watt, I do 
disagree with some of your testimony, such as your criticism of 
the consistency of the NEPA analysis by the Park Service, 
suggesting that it is driven by, basically, simply whether they 
like a project.
    I think that is an over-simplification, and I think it 
fails to recognize that the level of NEPA review depends on all 
sorts of different requirements in different circumstances. The 
significance of environmental impacts vary from one situation 
to another. And in some cases, there is caselaw that requires 
that, even though a use might be continuing, a NEPA process is 
required. I am thinking, for example, of long-term water 
contract renewals. You are continuing the same practice, but 
you have to do a full NEPA analysis. And that is just well-
established law.
    So, I don't think it is as simple as just the whims of an 
agency and whether or not they like a project. I think there 
are all sorts of constraints that dictate this.
    I do agree that we need to protect and preserve the 
historic ranches and dairies on the seashore, and I agree that 
the Park Service has shortcomings in their management of the 
tule elk, a very successful reintroduction of the tule elk, but 
it has created real challenges for some ranches and dairies, 
and this has to be addressed sooner, rather than later. Senator 
Feinstein and I are working on this, and pushing the Park 
Service, and we are going to continue to do that.
    I also agree that in a perfect world the enabling act of 
the seashore would be a little more direct about the 
preservation of the historic ranches and dairies, but I do want 
to clarify one thing in the limited time I have left.
    You suggested that, as a result of amendments to the 
enabling act, the statute no longer pays specific attention to 
agricultural lands. But isn't it true that there continue to be 
references to agricultural properties elsewhere in the 
legislation? I just want to clarify. You are not suggesting 
that Congress has somehow said they no longer want agriculture?
    Dr. Watt. No, not at all.
    Mr. Huffman. Thank you for that clarification. I also note 
that there are actually more acres grazed today than during the 
1980 general management plan. So, at least if you look at that 
time frame--my information is 28,000 acres versus 24,000, as 
well as report language Senator Feinstein and I have gotten 
into previous appropriation bills, all suggesting that there is 
neither congressional intent or Park Service intent to do away 
with these ranches.
    Mr. Thompson. The gentleman's time has expired. I am now 
pleased to recognize the gentleman from Colorado, Mr. Tipton, 
for 5 minutes.
    Mr. Tipton. Thank you, Mr. Chairman, and I thank the panel 
for taking the time to be able to be here.
    Dr. Watt, maybe just as a little bit of a followup to my 
colleague's questions, in your research of historic working 
landscapes at Point Reyes National Seashore, what is the impact 
and influence of litigation on the NEPA review process and on 
decision making by the Interior and National Park Service 
officials?
    Dr. Watt. Recent litigation has, as Representative Huffman 
just mentioned, resulted in a new settlement agreement that--
and this is unusual, in my experience of working with NEPA--has 
set out three alternatives that must be included in the new 
general management plan update and NEPA process that they are 
working on. So, that is a direct outcome of that litigation.
    Mr. Tipton. How does that really impact? I understand the 
policy end of it. What kind of impact is that going to have on 
a project?
    Dr. Watt. Well, all three of the required alternatives are 
either reducing or eliminating ranching. So, to me, that is 
setting up where the range of reasonable alternatives are. If 
not for that lawsuit, I don't believe that there would be so 
many alternatives considering reducing and/or eliminating 
ranching. So, it is having a direct outcome on what is being 
analyzed and how much is being analyzed.
    Mr. Tipton. So, it is not a matter of being able to 
preserve ranching in perpetuity, as much as reducing and, in 
some cases, eliminating?
    Dr. Watt. That is what the lawsuit has resulted in, three 
guaranteed alternatives that will analyze those possibilities.
    Mr. Tipton. Good. I appreciate that. I just wanted to be 
able to get some clarity.
    Dr. Watt. Sure.
    Mr. Tipton. And we would like to be able to also deal with 
some issues when we are looking at the title of the hearing. As 
a point of clarification, I think there isn't a person in this 
room that does not want clean air, clean water. But it is also 
about what is the real mission of NEPA. Is it to be able to 
establish policies, what is impacting it?
    I will give you an example that is currently in my 
district. We have one company right now that is in its 9th 
year. Not 3.7, as the average, but 9th year of going through 
NEPA. As soon as they are about to finish and think they see 
the light at the end of the tunnel to be able to move forward 
with a project, another lawsuit is filed, extending it out 
further.
    The cost ultimately to the consumers--and they want to be 
able to do that the right way. I think that is very important 
to be able to underscore this. It is a company that wants to 
make sure that they are dealing with the environment 
respectfully, but also creating jobs that are going to be 
necessary in our district.
    And I think, Mr. Coleman, maybe you could answer this for 
me. I would like to be able to get your thoughts today on what 
you are seeing, in terms of NEPA as a policy tool and some of 
the delays that are created. How do we get back on track with 
the original intent of NEPA, to be able to do what I think, as 
Americans, we all embrace: clean water, clean air?
    Mr. Coleman. Absolutely, environmental review is 
appropriate. And I think Mr. Greczmiel's written testimony had 
a bunch of examples of good situations where NEPA led to an 
improvement in what the agency's ultimate decision was, so 
there is no question.
    The question is should it take over 5 years to do that, on 
average, if we use the normal arithmetic average, like we 
would, which, by the way, is what a company thinks about when 
it is thinking about whether it wants to invest in a project. 
It wants to know how long does the average review take.
    So, I think, the question there, I think we could look to 
the experience of other countries. No other country has 
environmental reviews that average over 5 years. But if you 
look at Canada, Prime Minister Trudeau has recently proposed 
expanding the topics that are covered by their environmental 
reviews, but completing all of them in 300 days. That is a 
sixth of the time of the average review in the United States.
    So, I think it is very possible to set some time limits for 
NEPA reviews that allow us to carefully consider the 
environmental consequences of a Federal approval, but don't do 
so much to harm the United States' position for investors that 
are thinking about investing in major infrastructure projects 
here.
    Mr. Tipton. Great. Ms. Watt, would you have any comment on 
that?
    Dr. Watt. No, sorry.
    Mr. Tipton. OK. I do appreciate your comments. I think we 
need to be trying to move to a win-win, rather than a win-lose 
scenario.
    And some of the challenges that we have I think certainly 
need to be addressed, looking at some of the frivolous lawsuits 
that are put into place, and achieving the ultimate goal, but 
still allowing American business to be able to thrive and to be 
able to grow.
    Thank you, Mr. Chairman, and yield back.
    Mr. Thompson. The gentleman yields back. I am now pleased 
to recognize Mr. Sablan for 5 minutes of questioning.
    Mr. Sablan. Thank you very much, Mr. Chairman. I very well 
understand the power of the National Environmental Policy Act. 
In my district, the Northern Mariana Islands, our military 
proposes an expansion of activity on the island of Tinian, and 
probably on Pagan, where previously the military had little or 
no presence. If not for NEPA, the military might never have had 
to explain their plans to the public or estimate what the cost 
would be to our environment and way of life.
    And if not for NEPA, the public would have little or no 
opportunity to comment, criticize, or question the military's 
plans. The people I represent are likely to argue that NEPA 
should be even slower to allow more time for objective 
technical and scientific study. A lawsuit with local 
organizations as plaintiffs is now pending in the courts. NEPA 
empowers ordinary Americans like my constituents.
    And because I don't have too much time, I am going to ask 
each one of you for just a yes-or-no answer. If NEPA had 
existed in the 1950s, do you think that the U.S. Government 
would have conducted the atomic and hydrogen bombs on Bikini 
Atoll and Micronesia?
    Dr. Watts, yes or no?
    Dr. Watt. No.
    Mr. Sablan. Ms. Hamsher?
    Ms. Hamsher. No.
    Mr. Sablan. Mr. Greczmiel?
    Mr. Greczmiel. Most likely, no.
    Mr. Sablan. And counselor?
    Mr. Coleman. I am sorry. I should say I have no idea.
    Mr. Sablan. Yes. No idea?
    Mr. Coleman. No idea.
    Mr. Sablan. Atomic and hydrogen, over 50 that were tested 
and----
    Mr. Coleman. I think a lot would depend on if there were 
the kinds of exclusions that existed----
    Mr. Sablan. Would you like that in your backyard, sir?
    Mr. Coleman. Absolutely not.
    Mr. Sablan. That is exactly why they did it there.
    Mr. Greczmiel, are there examples of Federal actions--I 
just made one again--or projects implemented before NEPA's 
enactment in 1970 in which an impacted community's inability to 
participate in the decision-making process had adverse effects 
on them?
    Mr. Greczmiel. Yes. There are several examples. For 
example, I-94 in Minnesota, there were airport expansions that 
took place that impeded not only wetlands, but destroyed buffer 
areas between airports and communities. So, yes, there are a 
lot of examples there.
    And I might just point out as a point of clarification that 
there are outlier examples on both sides. For example, the 
proposed military relocation to Guam, which also impacted how 
Tinian and Pagan were being looked at, was one where the NEPA 
process did provide a lot of benefit to the local communities, 
in terms of shaping the military's relocation without impeding 
national security or preventing the Department of the Navy from 
pursuing its mission.
    Mr. Sablan. Thank you. Again, in your opinion, is the 
system of litigation as part of NEPA widely abused to block or 
prevent projects or government action?
    Mr. Greczmiel. I am sorry, say again.
    Mr. Sablan. In your opinion, is the system of litigation as 
part of NEPA widely abused to block or prevent projects or 
government action?
    Mr. Greczmiel. I don't believe that it is widely abused. I 
think that, as I mentioned earlier, it is a topic of last 
resort for communities that are going to be impacted.
    Mr. Sablan. Right. And say that an island is going to be 
used for amphibious landing live bomb training. That would be a 
NEPA, or an environmental impact study, it would be----
    Mr. Greczmiel. It would be subject to an environmental 
impact statement, most----
    Mr. Sablan. Right, and it is in the citizens' rights to 
demand their government to make a full study, full explanation 
of what damage, because that island will not be--it would be 
like one of the Hawaiian islands, and----
    Mr. Greczmiel. The environmental----
    Mr. Sablan. And maybe the counselor should read up on 
Bikini and the result of that, where children were born 
deformed. You certainly don't want to look at it in a picture, 
let alone in life. I come from that region, sir. Shame on us.
    Mr. Coleman, I don't have much time. I will submit my 
statements for the record, Mr. Chairman. Thank you.
    Mr. Thompson. The gentleman yields back. I now recognize 
the gentleman from California, Mr. LaMalfa, for 5 minutes.
    Mr. LaMalfa. Thank you, Mr. Chairman. Thank you, panelists, 
for coming here.
    Of course, NEPA has been a source for a lot of frustration 
for anybody trying to do a project, especially in my home state 
of California. We have our own CEQA, as well. It seems very, 
very simple projects that are a lot of times adding to already-
existing infrastructure are delayed, in my view, unnecessarily, 
because, oh, we have to do a NEPA. For what?
    What are we going to learn from this NEPA, when you are 
adding a lane to a highway, or repaving, or things of this 
nature that are really pretty simple? But we can say, oh, just 
might as well add 2 years to the time and cost of a simple 
project.
    In my district, grazing is a very key element of ranching 
life. But also, with fuels management in areas. And I think in 
the state of California, somebody came up with a shazam idea of 
studying how grazing can be an effective tool--I just read this 
the other day where they think that grazing could be a good 
fuel management on grasslands, et cetera.
    I am glad in the year 2018 that they are realizing this. 
But in an area of my district here we have grazing permits that 
would be offered by the Forest Service--have been, again, 
declining for a long time, forest management being a problem, 
and the NEPA process being a big, big delay of that, too.
    The grazing allotments within six national forests I have 
in my district are pushed back farther and farther on the 
burner, and the costs keep going up because of NEPA. Currently, 
there are 14 vacancies in just the one Shasta Trinity National 
Forest because the NEPA process has not been completed, they 
are still vacant.
    The Plumas National Forest--again, these are both Northern 
California--22 vacancies of grazing permits not fulfilled. So, 
Mr. Coleman, what reasonable measures could you think we can do 
to, again, alleviate the fear that ranchers, grazers, et 
cetera, are ever going to have a chance to use public lands for 
grazing with this type of attitude, with this type of delay 
going on?
    Because they don't seem to feel like there is a lot of hope 
to continue what has been a good practice in the past, where it 
has actually shown that grazing has been a good tool, not just 
for fuels management, but also in the pawing of the ground, the 
moving around, it actually has helped. What assurance or what 
ideas--please, go ahead.
    Mr. Coleman. Yes. I think, so far, we have had bipartisan 
majorities, presidents of both parties, and they have focused 
on the agencies, trying to urge agencies to move faster with 
this, to use more streamlining, et cetera.
    And I think, whatever one's criticisms are of current 
funding, funding has gone through all sorts of cycles for those 
agencies, but the one constant is that no matter what the 
funding, no matter how much we have asked agencies to 
streamline, the reviews continue to get longer, and delays 
continue to increase.
    Mr. LaMalfa. So, when you drill down on it, why are they 
getting longer? What additional information or what additional 
process has made it jump from 2 to 3 to now over 5 or 6 years?
    Mr. Coleman. Well, the more you dive into it, I wouldn't 
say that the review turns up completely useless information.
    The reality is you have a very good idea of what the 
environmental consequences are going to be after a year. But if 
you spend another 6 years studying it, do you learn some more 
things? Absolutely. There are just diminishing returns to each 
of those years. And I think if you looked at the environmental 
impact statement, you would be impressed with all the science, 
et cetera, that went into it.
    There are obviously benefits to environmental review, but 
the question is whether we are appropriately balancing those. 
And I think if Congress wants to do something about it, it is 
not going to make any--I mean you are going to have limited 
traction trying to ask the agencies to go further without doing 
something about the judicial review that is driving a lot of 
this agency gold-plating of the analysis.
    Mr. LaMalfa. So, the delay is obvious, what it causes to 
people doing projects. They are just giving up on them. What is 
a timeline that you think would be reasonable to actually learn 
that? And then using past precedent, it is like, when you do 
grazing, you kind of know what the concept is. When you are 
doing forest thinning or salvage after a fire, we kind of know 
what the idea is.
    So, how much can we compact it using past knowledge? 
Quickly.
    Mr. Thompson. The gentleman's time has expired.
    Mr. LaMalfa. Can we get a quick answer?
    Mr. Thompson. Real quick.
    Mr. Coleman. I think you could probably do it in 300 days. 
I wouldn't cut off judicial review that quickly.
    Mr. LaMalfa. Thank you.
    Mr. Thompson. I am pleased to recognize the gentleman from 
Virginia, Mr. Beyer, for 5 minutes.
    Mr. Beyer. Mr. Chairman, thank you very much. And thank you 
all very much. Fascinating hearing, and I confess it is really 
interesting to try to reconcile the two different narratives we 
hear.
    On the one hand, a number of examples about how incredibly 
long it takes, the 6 years, the whole notion of the courts 
essentially being so rigorous that the environmental review is 
going to take ever longer to have the documentation pass muster 
on the court.
    And on the other hand, Mr. Greczmiel's statistics that 
still show that out of 25,000 or whatever, you are getting less 
than 100, 4 percent EISs and maybe 100 of those being--so 
trying to reconcile those narratives is difficult. And it may 
be that the vast majority fly right through, and the handful 
that don't are attracting an awful lot of attention in a 
weaponization hearing.
    Dr. Watt, specifically, you had said that the 
inconsistencies in NEPA and the land management process, the 
inconsistent application of NEPA, and you pointed out a number 
of examples: the failure to update the general management plan; 
the failure to manage or control the tule elk population; 
pushing permittees to discontinue ranching. All of that seems 
to come back to what is the culture around NEPA in a given 
agency.
    Do you have an excellence in management and execution which 
would minimize it? How do you address that? How do you preserve 
all the good parts about NEPA in terms of the execution, and 
avoid the 6-year parts?
    Dr. Watt. I do think that there should be better training 
of agency staff, and better funding for agency staff to work on 
environmental review. We have heard a number of examples of 
agencies being cut back and even the CEQ itself being cut back, 
so I think that is an important piece.
    Another piece that is very important for a lot of these 
kinds of documents is to be collaborative in the process, to 
make sure that agencies are reaching out to other relevant 
agencies, but especially the affected community that is nearby. 
I think the more that this can be a collaborative process, it 
helps avoid lawsuits by bringing more participants on board, 
and participating in the process, and also, I think, makes for 
writing a plan that is more readable and understandable by the 
public.
    All too often these are documents that are highly, highly 
technical, and are almost impossible to read, especially when 
they are very long. One of the things that was noted in the one 
NEPA project that I won a national award for was how readable 
the document was and how useful for the local community.
    Mr. Beyer. A simple question to Mr. Greczmiel. Ms. Hamsher 
talked about her project was a mile underground, the tunnel 
going down, shaft going down, was on private land on an 
existing private platform with horizontal drilling to access 
the minerals.
    What is the rationale for not having a categorical 
exclusion on that, for invoking NEPA on Federal lands?
    Mr. Greczmiel. First of all, there are categorical 
exclusions for APDs. I might want to point out that those are 
established in each of the agency's own regulations, so they 
are different from agency to agency. Not every agency deals 
with forest management or with APDs.
    So, there are some, and the question would be--if I were 
sitting at CEQ and she were to come to see me, I would want to 
say, ``Who have we talked to at BLM and Interior to find out 
why they have determined the need to elevate this from a 
categorical exclusion to an EA?''
    On the other hand, 2 months to prepare an environmental 
assessment, as was the case, is not that bad. It is actually 
very good. The question I would then raise is why is it that, 
after the close of the comment period at the end of November, 
we haven't heard anything since then?
    Again, NEPA is fact-specific and case-specific, and it is 
very difficult to parse through why in one case an APD is not, 
and in another case it is.
    Mr. Beyer. Let me ask you another question. Mr. Coleman has 
suggested that it really takes, the company is forced to wait 
an unreasonable length of time for a permit, that permit should 
eventually be immunized from invalidation under NEPA, not be 
able to sue on. He says if they have already studied it for 6 
years, why do they need to sue in the years after that? How 
would you answer that?
    Mr. Greczmiel. One of the things that I would say is that, 
in my experience, rarely is NEPA the only basis for the lawsuit 
that is brought. Typically, it is joined with Clean Air Act, 
Endangered Species Act, or Clean Water Act issues. So, even if 
you were to do away with NEPA, we still have these other 
substantive laws that, thank goodness, we have to comply with. 
What NEPA does is bring them all together.
    We can have examples--with all due respect, there are 
outliers on both sides. I can give you outliers of an EIS that 
was done for an entire national forest in a year.
    Mr. Beyer. Great.
    Mr. Thompson. The gentleman's time has expired.
    Mr. Beyer. Thank you very much, Mr. Chair. I yield back.
    Mr. Thompson. Thank you.
    Mr. Westerman, you are recognized for 5 minutes.
    Mr. Westerman. Thank you, Mr. Chairman. Thank you to the 
witnesses for being here today. In Chairman Bishop's opening 
statement, he talked about EISs, the average time now is around 
5 years. But I know on Forest Service projects the average is 
5.1 years for an EIS.
    Mr. Greczmiel--I hope I said that close enough--you 
mentioned that NEPA was like the environmental Magna Carta for 
the United States. And I agree there have been very good things 
that have happened to our environment from NEPA, with the Clean 
Air and the Clean Water Act.
    I kind of have two hats from the private sector. I am an 
engineer and I am also a forester. From the engineering 
standpoint, I know how permitting for air discharge and water 
discharge, there have been great improvements on decreasing 
particulates and hazardous pollutants, both in the air and in 
the water, and that probably wouldn't have taken place without 
something like the Clean Air or the Clean Water Act.
    But now I want to put on the forestry hat for a minute. We 
all know that healthy forests are good for everyone, because of 
the photosynthesis. They clean the air, they take carbon 
dioxide out of the air, create food, store the carbon in the 
tree, and release oxygen. Trees are natural water purifiers. 
Healthy forests provide wildlife habitat. From an endangered 
species standpoint, healthy forests are good for that. We love 
to recreate on our forests. There is really no downside 
whatsoever to having a healthy forest.
    So, I want to look at the relationship between NEPA and 
healthy forests. And we are seeing on our Federal lands that 
fall under NEPA, there is no question that there are many 
unhealthy forests. The Forest Service says that 80 million of 
our 192 million acres are subject to catastrophic wildfires, 
whereas you look at private land or state-managed land or 
tribal-managed land, and we have these healthy forests that are 
not seeing near the destruction that we are seeing on Federal 
lands.
    Today, we were at the Joint Session of Congress with the 
French President. He made a lot of statements. Some he got 
standing ovations for, some people chose to sit. But he talked 
a lot about the environment. And one of his statements was, 
``We must find a smoother transition to a lower-carbon 
economy.'' And many of my friends across the aisle clapped, 
many of us on my side of the aisle clapped.
    He also mentioned that we should use science. And Mr. 
Chairman, for the record, I want to submit this paper that was 
written by Chad Oliver from Yale. It is called ``Carbon, Fossil 
Fuel, and Biodiversity Mitigation with Wood and Forests,'' and 
they talk about the best way to mitigate carbon is to manage 
our forests, healthy, to use more wood products.
    So, when I look at this cumbersome process of NEPA that is 
preventing us from managing our forests, I wonder, is it really 
the best tool to be used?
    And I want to just go down the table and ask. Do you 
believe that the current NEPA process promotes or hinders 
healthy forests? And should we be looking for a different model 
for forestry?
    Dr. Watt. I actually believe that it does help healthy 
forests by looking at all of the various possible environmental 
impacts. And, often, as new science comes along--like the paper 
that you cited incorporates that into our understanding of 
environmental review.
    Mr. Westerman. So, you think regulating so you can't manage 
the forest actually makes the forest healthier?
    Dr. Watt. I believe regulating in the sense of looking at 
and considering the environmental impacts and using all the 
best current science on that.
    Mr. Westerman. I would agree with that. Let's move on down 
the table.
    Ms. Hamsher. I am not a forester, but I am an engineer. In 
practice, in environmental engineering, certainly we would want 
to manage the forest appropriately. It has been perceived as 
unhealthy not to. But at the same time, I believe that there 
need to be environmental reviews and erosion and sediment 
control.
    Mr. Westerman. Let's move on.
    Mr. Greczmiel. I can point to several cases where 
environmental assessments done in a couple of months were used 
for hazardous fuel reduction projects throughout the United 
States, including in California and Texas. I can point to 
environmental impact statements done in less than a year, where 
healthy forest issues were taken----
    Mr. Thompson. The gentleman's time has expired.
    Mr. Westerman. Thank you, Mr. Chairman.
    Mr. Thompson. The Chairman now recognizes the gentleman 
from Florida, Mr. Soto, for 5 minutes.
    Mr. Soto. Thank you, Mr. Chairman. And we almost had a 
purely freshman-chaired hearing for a moment, with Congressman 
Bergman and I.
    I assumed by the title, ``The Weaponization of the National 
Environmental Policy Act and the Implications of Environmental 
Lawfare,'' that it is just hyperbole for let's have a wonderful 
bipartisan rational hearing on potential NEPA reform. And I 
look forward to having that.
    First, to Mr. Greczmiel, can you give me a breakdown of 
what this fraction of 1 percent of the cases that are highly 
litigated with these reviews are? What type of cases are we 
talking about?
    Mr. Greczmiel. The cases that are typically litigated 
involve either environmental impact statements or environmental 
assessments, where there are mitigated findings of no 
significant impact, meaning that mitigation is being applied to 
reduce the level of effect, so that an EIS would not be 
required. So, they are the cases that deal with significant 
environmental issues.
    Mr. Soto. Are they mostly oil and gas, or timber, or 
grazing? What is generally the most contentious use of 
resources that gets these challenges?
    Mr. Greczmiel. Those that you have mentioned plus water 
resource projects from the Corps of Engineers and Highways have 
always fluctuated over the years. But those have been the four 
that have had quite a bit of litigation.
    I might point out that the Forest Service, in its most 
recent year, had 3 percent of its cases challenged.
    Mr. Soto. So, with our economy increasing from the 1970s 
from $5 trillion to $17 trillion, have we seen funding keep 
pace over time, back when you were the Director of NEPA 
Oversight?
    Mr. Greczmiel. Funding with regards to the NEPA program, 
sir?
    Mr. Soto. Yes.
    Mr. Greczmiel. I would say that, over time, in my opinion, 
that has diminished. And the interest in maintaining those 
programs viably has diminished. When we have----
    Mr. Soto. So, when you have less funding and you have less 
people, then you would have longer reviews. Is that fair to 
say?
    Mr. Greczmiel. I would say that to be working as a NEPA 
professional in the Federal Government you are extremely 
dedicated.
    Mr. Soto. And has technology changed over time? Do we have 
more ways to analyze these things? Is that also part of, 
probably, the lengthiness of these things?
    Mr. Greczmiel. I would say yes, the technology has 
definitely raised more issues to the attention of more people 
over time, and that is a factor that has to be taken into 
account.
    The agencies need to use the new advances in technology----
    Mr. Soto. What do you think is a historically appropriate 
average review timeline? Looking over time, what do you think 
would be an appropriate review?
    Mr. Greczmiel. An appropriate review?
    Mr. Soto. On average.
    Mr. Greczmiel. On average, over time, for an environmental 
impact statement? If it is truly a huge one, like, for example, 
a military relocation to the Island of Guam would be 2, 3 
years.
    Mr. Soto. OK.
    Mr. Greczmiel. An environmental assessment is less than a 
year or 18 months, depending upon the facts and circumstances.
    Mr. Soto. And do you think there should be any changes to 
the categorical exclusions, any additions, anything we can make 
more clear?
    Mr. Greczmiel. I can attest to the fact that while I was at 
CEQ, the majority of work that the agencies did in revising 
their NEPA implementing procedures was to establish new 
categorical exclusions.
    Mr. Soto. OK. Mr. Coleman, do you think citizens should 
continue to be able to file these suits?
    Mr. Coleman. Yes, absolutely.
    Mr. Soto. You brought up an intriguing proposal with a 
certain time period to file, which seems fairly reasonable. 
What if there was a plan change, though? Under your proposal, 
would there be a time to refile, if the plan changed?
    Mr. Coleman. Yes. Undoubtedly, I think you would have to 
have some kind of requirement that if the company that is 
planning it changes its plans, potentially that restarts the 
clock.
    Mr. Soto. And how long do you think it would take for the 
public to digest a new project so that we would have an 
appropriate time period?
    Mr. Coleman. Again, I think it may seem like everything 
should end by 6 years, anyway. But I think it was----
    Mr. Soto. I am just talking about the filing period.
    Mr. Coleman. Oh, the filing? From the completion of the 
environmental impact statement, I think you should be able to 
file a challenge within 60 days. And most groups do.
    Mr. Soto. And with the D.C. Circuit, I think that is 
something that I was a little more concerned about. Wouldn't it 
be a chilling effect, because a lot of plaintiffs would have to 
travel across the country to DC to challenge these, rather than 
in their own backyard, in the backyard of that project. You 
think it could result in folks not filing simply because it is 
too inconvenient?
    Mr. Coleman. I don't think so. I don't think that is what 
we found with regulation under the Clean Air Act, et cetera, 
where those also have to be challenged. If you are a small 
business, you have to come to DC to challenge that.
    Mr. Soto. We heard a little bit from Mr. Greczmiel about 
categorical exclusions. What specifically would you add in, and 
what would you make more efficient?
    Mr. Coleman. I'm not sure. I think the puzzle for 
investment is about these really big projects, like solar farms 
is a big area, or transmission. And I do think it is 
appropriate that they have a full environmental review.
    So, I am not favoring, there may be specific examples, but 
I think the big issue is about speeding up the environmental 
impact statements for those big projects.
    Mr. Thompson. The gentleman's time has expired. Now I am 
pleased to recognize Mr. Hice for 5 minutes.
    Dr. Hice. Thank you, Mr. Chairman.
    Mr. Coleman, the Government Accountability Office had a 
report in 2014 in which they stated that a single NEPA lawsuit 
can affect numerous Federal decisions and have a far-reaching 
impact. I think that, in itself, is pretty obvious. But what is 
also obvious is not only the Federal impact, but the projects 
themselves, how many different projects are impacted by that 
type of thing.
    Have you, or do you know of someone or some group that has 
evaluated the economic impact of these projects sitting at the 
starting gate for a decade, or however long it may take?
    Mr. Coleman. No, I haven't. I think that kind of study 
would be very good. We have very few studies on either the 
economic costs or the economic benefits of the NEPA review 
process.
    Dr. Hice. So, would you say it would be beneficial, would 
you believe that prudence maybe in the permitting or licensing 
process, that there be some sort of economic study? I mean, we 
are already doing the environmental study, why not an economic 
study, particularly in light of--I mean during the project 
itself, after the project, and during the delay, what kind of 
impact is this having, economically?
    Mr. Coleman. I would favor doing a kind of overall review 
of the economic impact. I would not favor including that in 
individual permits, because I feel like adding another thing 
that everybody has to consider might just slow that permitting 
process down.
    Dr. Hice. Slow it down even more.
    Mr. Coleman. Yes.
    Dr. Hice. But the information would be pretty valuable, 
because, obviously, we are talking enormous impact that comes 
about. So, I mean that was just kind of off the cuff, a curious 
statement if that would be beneficial to know.
    Mr. Coleman. Well, let me tell you the way I think about 
it. If you are a very patient company, you might be willing to 
have a project that pays off after 10, 20 years. Most companies 
will want the project to pay off sooner than that. But if you 
are very patient, you might say, ``I can have this pay off over 
20 years.'' Well, if it takes you 6 years to get the permit, 
and then you might be caught up in litigation, the litigation 
goes 3 to 10 years beyond, that is half of your window for 
earning back.
    So, I think the impact on investors is very important, and 
I think that for investors, they would be reassured if they 
knew at some point there is light at the end of the tunnel. 
Maybe these reviews are going to continue being sort of long, 
but after 6 years it could cut off.
    Dr. Hice. Yes. And even 6 years, to me, seems like an 
awfully long time. The negative impact of that, from the 
project itself, let alone potential investors or whatever. You 
mentioned Canada a while ago, they are trying to get 300 days. 
And we also have Australia, Germany, some of these others that 
are 2 years or less.
    Mr. Coleman. Right.
    Dr. Hice. What are they doing right that we are not doing?
    Mr. Coleman. I think if you read those environmental impact 
statements, you would be impressed, like with ours, that they 
cover a variety of topics. I think the major difference that 
you see with the United States environmental impact statements 
is they do go into more depth on every topic that they cover.
    So, again, I think that is just where there are diminishing 
returns. We know most of the environmental impacts of a project 
pretty quickly, within a year of study, and it is after we are 
studying every last question, and these are great scientists 
working on it, good people working on it, but I question 
whether the benefits of that outweighs the cost.
    Dr. Hice. Would you agree that Australia and Canada are two 
top competitors for liquid natural gas?
    Mr. Coleman. Oh, yes. Undoubtedly, Canada is not quite 
there yet, but Australia is. And certainly in resources in 
general, those are two big competitors.
    Dr. Hice. OK. Yet, both of these countries routinely are 
completing the infrastructure projects in roughly 2 years?
    Mr. Coleman. Yes. Well, I have to say opposition to oil 
pipelines is now increasingly a global phenomenon. In some ways 
a lot of it started here, but it spread to Canada. And we could 
talk a lot about what Canada is going through right now, if we 
wanted to.
    Dr. Hice. So, I am assuming, then, that you would agree 
that the infrastructure project delays that we have here when 
it comes to LNG is a negative thing?
    Mr. Coleman. Yes, it is a negative, although I would say 
that the United States is doing pretty well in its LNG exports, 
again, compared to Canada.
    Dr. Hice. OK. Let me conclude. I see I only have about 30 
seconds. You are the only one that did not get to answer Mr. 
Westerman's question about is there a different or better 
system than NEPA for healthy forests.
    Mr. Coleman. If the question is, could it be improved, I 
think undoubtedly the project could be improved to do more to 
encourage healthy forests and the environmental benefits that 
that could provide.
    Dr. Hice. OK, thank you. With that, I will yield back, Mr. 
Chairman.
    Mr. Thompson. The gentleman yields back. I am pleased to 
recognize Ms. Barragan for 5 minutes.
    Ms. Barragan. Thank you, Mr. Chairman.
    Mr. Greczmiel, we hear a lot of complaints about NEPA, 
horror stories about the Act holding up economic development. 
Would you say that it is generally not true that these are 
really happening in less than 1 percent of the instances, where 
NEPA causes delays?
    Mr. Greczmiel. I would say that that is true. For example, 
there was a recent study the Treasury did on 40 projects that 
were critical to economic development, and it found that in 39 
of those it was a question of funding the projects, rather than 
any environmental review that was at issue.
    Ms. Barragan. So, it sounds like Congress has to continue 
to fund.
    Expediting reviews under NEPA, as some of my colleagues 
here would have us do, I believe does not address the 
underlying problem. Telling an agency to do something faster 
without giving them additional funding is not going to help 
them do that thing faster.
    Instead, we should be focusing today--and this is what I 
want to do--focus on some success stories that NEPA has 
provided us with, including highlighting the Act's role as an 
important environmental justice tool.
    One of those success stories is from Los Angeles. I 
represent the Los Angeles area. The Los Angeles County 
Metropolitan Transportation Authority's Crenshaw LAX Transit 
Corridor Project was one of the Federal Transit 
Administration's first pilot 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 
utilize a rarely used existing freight rail line corridor, 
instead of building new tracks in that section. The railroad 
agreed to abandoning the line and allowing the Authority to use 
it. That decision decreased project costs, it saved time, it 
reduced disturbances for the nearby community by using an 
existing right-of-way, while providing significant 
environmental benefits, economic development, and employment 
opportunities throughout Los Angeles County.
    Mr. Greczmiel, low-income and minority communities are 
disproportionately exposed to pollution and toxins at schools, 
on the job, and in their homes. I happen to represent one of 
those majority/minority districts, where you have about 86 
percent of the population is a minority, and it is actually one 
of the more heavily polluted districts in the country. My 
question to you is how does the NEPA process help protect these 
types of communities?
    Mr. Greczmiel. NEPA provides the opportunity for those 
communities to actively comment and engage in the NEPA process 
by pointing out the fact that there are impacts that are 
disproportionate to them, something that is often overlooked or 
not recognized. It gives them the opportunity to sculpt or help 
sculpt other alternatives that might not have as much impact on 
their communities.
    There are countless examples, both in the environmental 
justice arena with toxins, as well as enforced management, and 
in other areas where, when agencies talk to the local people, 
as well as the local agencies, they are able to come up with 
alternatives that have less of an impact on the environment and 
don't segregate communities, don't cut them in half, and don't 
put them next to facilities that are harmful.
    Ms. Barragan. Thank you. In 2008, over 120 million people 
lived in counties that exceeded national air quality standards. 
I believe NEPA is a critical tool to ensure that the voices of 
these communities, ones like the ones I represent in Wilmington 
and Compton, are heard.
    If we didn't have NEPA, and let's say a corporation tried 
to put a coal-fired power plant next to a school, how would 
local communities be able to share their concerns with the 
decision makers?
    Mr. Greczmiel. They would be hard pressed, unless they were 
able to mobilize and somehow get the attention, through the 
political process, of those individuals who were leading the 
agencies.
    Ms. Barragan. Right. Well, that is already a challenge in 
my district, where people are living below the poverty line, 
they are working two jobs, and trying to navigate the system. 
This can be challenging.
    Mr. Greczmiel, my last question is, in your experience, 
when NEPA is implemented correctly, does the law lead to delays 
of projects without serious adverse environmental and community 
impacts?
    Mr. Greczmiel. It does not. And there is a recent study 
that deals with oil and gas in the West written by a professor 
from the University of Utah and another colleague, who found 
that, because of NEPA, the typical advances that would have 
been made in designing a project based on the Clean Air Act or 
the Clean Water Act are actually enhanced and improved even 
further because of the NEPA process and the inputs that are 
received from local communities.
    Ms. Barragan. Great, thank you. I yield back.
    Mr. Thompson. The gentlelady yields back. I am now pleased 
to recognize Mr. Johnson for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman, and thank you all for 
being here.
    One of the impacts litigation has on NEPA reviews is that 
Federal agencies will attempt to bulletproof their 
environmental reviews in anticipation of the potential legal 
challenges, and we discussed that, and you all know.
    Mr. Coleman, can you briefly explain this concept for us, 
and what the on-the-ground impacts are for project proponents 
who are undergoing NEPA review?
    Mr. Coleman. I think the main effect is that it simply 
takes longer to do these reviews. And every time a new decision 
comes out that strikes down a NEPA review, you have agencies 
scrambling to meet a new standard. And those standards just 
pile up over time with each case, where an environmental impact 
statement is struck down and requires longer and longer 
reviews.
    Mr. Johnson. Dr. Watt, would you take a swipe at that? Tell 
us what the on-the-ground NEPA experiences are like for 
ranchers at Point Reyes with regard to this bulletproofing 
concept.
    Dr. Watt. I think it creates more uncertainty for 
permittees, in terms of the long time frames that they are 
dealing with. In the case of Point Reyes, they started a 
general management plan update with the associated NEPA review 
back in 1997, and over 20 years later, they still haven't 
produced the actual plan. So, that kind of delay, that is not 
specific to litigation, but I believe there is probably 
stretching out, constant rechecking, and going back through, 
and revising, and then never actually even getting the plan 
completed.
    Mr. Johnson. Thank you.
    Ms. Hamsher, how about you? Have you seen this 
bulletproofing in any Federal environmental reviews Eclipse has 
been involved in? And what has been the impact on your company 
and its projects?
    Ms. Hamsher. There is a misconception that we are against 
environmental reviews. We are certainly not against 
environmental reviews. It is the weaponization of the NEPA 
itself that actually changes BLM's mind on what they want to 
do, at what time.
    So, that is what we have seen. Certainly, I don't want 
anyone to think that we are comparing a 10-acre well site that 
is the max of the surface impact to the Bikini Atoll. It is a 
totally different thing, so it has been very impactful.
    When the BLM gets sued, they slam on the brakes and change 
their mind, and that is what has been happening. We have had 
robust environmental reviews as we have been going along, and 
we did that thinking that we were having the categorical 
exclusion.
    The states have requirements that are quite robust, and we 
have met all those. And then, when we are applying for the 
Federal side, BLM gets sued and basically stops progress. So, I 
don't think anybody here is against environmental reviews. It 
is just the process of what has been happening to us.
    Mr. Johnson. And this bulletproofing--I mean for either of 
you, I see you nodding your head vigorously--does all of this 
improve the quality of the review in any way, or does it merely 
serve as building a thicker and thicker shield against 
litigation?
    Ms. Hamsher. It does not, actually. We provided the 
information to them, because we voluntarily did the studies and 
cultural assessments, et cetera, that go into that. They didn't 
add anything new to that except for just get tribal consent, 
which they must have anyway to be able to dole out the drilling 
permit for the sub-surface parcel.
    Mr. Johnson. Thank you.
    Mr. Greczmiel, you acknowledge that fear of litigation 
drives agencies to create what you euphemistically called 
excessive documents. But you didn't propose how to remedy the 
phenomena. So, the question is, how do we get the agency folks 
in the trenches who understandably don't want to be dragged 
into courts to move away from this defensive bulletproofing of 
the EISs?
    Mr. Greczmiel. I think one way that I successfully used 
when I was at CEQ was the training of those individuals on the 
ground who are doing the NEPA work. Because once they recognize 
that they don't need to throw in the kitchen sink, but focus 
their reviews on the issues that really matter, the document 
comes way down in size.
    And it becomes defensible, as well, because the court is 
not going to require, and has not required in the past, that 
agencies examine issues that are not going to be potentially 
significant or important.
    Mr. Johnson. In terms of providing the training, is that 
about focusing on clarity, so that they can focus on minimizing 
impacts and realistic alternatives, and actually moving forward 
with projects? Is that a component of it?
    Mr. Greczmiel. That would be a component of it. OJT 
training does not work because they look at how things have 
been done in the past. We need to train people to take 
advantage of the efficiency of the process, the lessons 
learned, and the initiatives that have advanced it.
    Mr. Johnson. I am out of time, I yield back.
    Mr. Thompson. The gentleman's time has expired. I am now 
pleased to recognize Mr. Gallego for 5 minutes.
    Mr. Gallego. Thank you, Mr. Chair.
    Mr. Greczmiel--and I apologize if I destroyed your last 
name, people do the same to mine--Gallego, Gallego.
    [Laughter.]
    Mr. Thompson. We are going to have to practice.
    Mr. Gallego. That is OK.
    Could you give me some good examples of how the NEPA 
process has been used to help minimize the negative impacts of 
rushed, dangerous, or just poorly planned Federal projects, in 
general?
    Mr. Greczmiel. I would refer to my written testimony, where 
I gave four examples, four cases where, as a result of 
litigation, the project was actually improved. There are 
numerous others that I can point to in the oil and gas arena, 
as well.
    And in that forced management, which has come up here in 
several of the questions, the Siskiyou National Forest 
Watershed Protection Project, the Hell's Canyon Comprehensive 
Management Plan, these are all examples of where very difficult 
NEPA processes worked with the communities.
    Mr. Gallego. Can you give us some details in regards to 
what you saw, what occurred there that basically highlights the 
importance of NEPA, especially in some of these communities?
    Mr. Greczmiel. In each of those, the communities were 
finally brought to the table and able to express their 
concerns, whether it was water, whether it was access to their 
lands, whether it was air issues.
    And, as a result of that, they worked with the agencies to 
come up with alternatives. And each of those examples I gave, 
at the end of the day, the Federal agency ended up accepting, 
reviewing, and approving a project that was based on an 
alternative that had been developed in conjunction with the 
local communities and the local resource agencies that had to 
provide local permits, so that the projects could proceed.
    Mr. Gallego. You mentioned something about an oil facility, 
I didn't catch it. If you could just go into detail with that, 
or what you were trying to say.
    Mr. Greczmiel. I simply referred to the fact that in the 
oil and gas industry we see a lot of that, as well. County 
commissioners have gotten very engaged in land management 
plans, in oil and gas development plans. And as a result of 
that, those plans have been improved over time.
    A lot of it is location. And people who want to advance 
projects, the proponents and the developers know that if they 
talk to the people and figure out where the pressure points are 
going forward, they have a much better concept of how to route 
a pipeline, where to put an oil and gas development project, 
where to approve the APDs. It is that up-front communication 
that has to take place that hasn't been, but is now slowly 
beginning to.
    And I would also point out that when we measure time, we 
start and we end. A lot happens in between. And I would commend 
to the Committee to take a look at the permitting dashboard 
that is now up. Granted, it doesn't cover every Federal 
project, but it will give a good picture of just exactly what 
are the things that happen during the development of a project. 
Does it add time just because NEPA exists, or does it add time 
because the project has changed, and the analysis has to go 
back and take a look at a new aspect of it?
    So, there are a lot of things that could merit further 
study. And I would submit one of the things that would is to 
take a look at those results that are going to start coming in 
when the agencies implement that transparent dashboard and we 
see what is actually happening during the development of those 
projects.
    Mr. Gallego. Mr. Chair, I yield back.
    Mr. Thompson. Mr. Gallego yields back.
    Mr. Gallego. Getting better.
    [Laughter.]
    Mr. Thompson. Now I am pleased to recognize the gentleman 
from Michigan, Mr. Bergman, for 5 minutes.
    Mr. Bergman. Thank you, Mr. Chairman. Thank you to all of 
you for your testimony today.
    When you live in the middle of a million-acre national 
forest, you have a slightly different view of what boots on the 
ground or trees on the ground mean, because you, in some cases, 
work around them, or you have to sometimes pull your chainsaw 
out as you drive down a road, because it has been blocked by a 
tree that should have been cut a while ago, but was not healthy 
any more, and what happens when you lose your vibrancy, you 
fall down.
    So, in our neck of the woods--and that is a literal 
statement--when you think about the stakeholders, whether it be 
the property owners who have private lands there, whether it be 
the tribes who have tribal lands, whether you have the Federal 
or the state lands, in forestry it is about partnerships that 
do several things.
    Number one, maintain the health of your forests and your 
environment. Far and above everything else.
    Number two, do it in a collaborative way that takes the 
inevitable acts of God in a lot of cases--lightning strikes 
creating fires, different things, floods--and work through 
those differences to optimize results, but also move forward in 
how we do our assessment of results.
    So, having said that, in working in those multiple layers, 
those local boots on the ground, no matter who they might 
represent, are the best stewards of that environment, and also 
the best assessors, based on their local history.
    Ms. Hamsher, using the project you talked a little bit 
about in the Wayne National Forest, are there any specific 
differences that you observed in how the state of Ohio 
conducted their state environmental review process versus the 
BLM's environmental review? Were we stepping on each other? 
Were we totally separate? Was it complementary?
    Ms. Hamsher. There are many duplicative things. Extensive 
requirements on the state side are up front of building the 
well site, getting the permits, et cetera. I found that in 
doing the state requirements it was easy then to give the BLM 
the materials that they needed to be able to write the 
environmental assessment.
    Mr. Bergman. When you said ``duplicative,'' could those in 
an honest, after-action report of this particular project, and 
doing lessons learned, is there an atmosphere to reduce the 
duplicative nature, or just keep your checklists duplicative 
and still waste time and money?
    Ms. Hamsher. Right. And, certainly, with the way that the 
Wayne National Forest is broken up, there are a lot of private 
surface owners that are not realizing their own property. 
Through the Ohio version of the permitting process, everything 
has been done the same as it would have been with the BLM.
    Mr. Bergman. Thank you.
    Mr. Coleman, in your testimony you explain how the average 
time for NEPA environmental reviews keeps growing, expanding. 
How have separate state and Federal reviews on the same project 
contributed to the growing delay? And is there a benefit to 
conducting one environmental review that satisfies both state 
and Federal requirements?
    In other words, as we are talking about getting rid of 
duplicative time-wasting, dollar-consuming processes.
    Mr. Coleman. Well, that is a particular problem for energy 
transport, where we have all these new, lower-cost, cleaner 
resources, we have lowered the cost of wind production, we have 
lowered the cost of solar production, oil, natural gas.
    And increasingly, for the projects that are regulated 
typically by the states, which is the oil and power projects, 
we see a push to have the Federal Government do a full review 
on top of that. And for the projects that are regulated by the 
Federal Government, which is natural gas, you see the states 
trying to do their own environmental review on top of that.
    And I would say that there is a need to have just one 
decision maker. The issues are important, but they should only 
be resolved once, whether that is the Federal Government or the 
states.
    Mr. Bergman. Thank you, Mr. Chairman. I yield back.
    Mr. Thompson. The gentleman yields back. I think we have 
all of our questions in.
    I want to thank the witnesses for your valuable testimony, 
and the Members for their questions. The members of the 
Committee may have some additional questions for the witnesses, 
and we ask you to respond to these 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 open for 10 business days 
for these responses.
    If there is no further business, without objection, the 
Committee stands adjourned.
    [Whereupon, at 4:00 p.m., the Committee was adjourned.]

            [ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]

Rep. Bishop Submissions

  Three Benefit/Cost Biases and Reform of the National Environmental 
                               Policy Act

              Statement for the Record by Benjamin Zycher

        American Enterprise Institute for Public Policy Research

             [The views expressed are the author's alone.]

                                May 2018

    On April 25, 2018, the Committee on Natural Resources, U.S. House 
of Representatives, held a hearing on ``The Weaponization of the 
National Environmental Policy Act and the Implications of Environmental 
Lawfare.'' This submission for the record discusses the need for reform 
of that law in the context of standard benefit/cost analysis and the 
obstacles to such analysis created by the law as now implemented.
    The National Environmental Policy Act of 1969 is the basic law 
under which federal reviews of the environmental impacts of proposed 
construction projects and the like are conducted. NEPA is in need of 
substantial reform by Congress, because it has created a heavy bias in 
favor of the infrastructure status quo, and against new projects even 
if the latter would yield important environmental improvements compared 
with the existing state of affairs, in particular in terms of the 
likelihoods or levels of damage, accidents, and the emission of various 
effluents. This status quo bias is exacerbated by the ``completeness'' 
requirement and by a crucial cost-shifting problem, the combination of 
which prevents sound benefit/cost analysis of proposed projects and 
other environmental concerns under NEPA.
    All environmental policy both in principle and as applied is (or 
should be) an exercise in benefit/cost analysis: Are the benefits of a 
given policy or project prospectively larger or smaller than the 
potential adverse effects, when the environmental effects of relevant 
alternatives are included in the analysis. This general point is 
obvious: There is no such thing as a project or, indeed, other human 
endeavor that does not create some adverse environmental effect, 
however broadly defined. Clearly, we are not willing to reject all new 
projects--an extreme outcome even among extreme outcomes--in 
substantial part because a growing population demands more physical 
capital, because shifts in demand and cost conditions across sectors 
implies resource flows among those sectors including capital 
investment, and because the inexorable physical depreciation of the 
existing capital stock means that a rejection of all new investment 
would return humanity to a state of nature.\1\ In short: At some point 
the marginal costs of environmental protection exceed the marginal 
benefits, which is why virtually no one chooses to live in a pristine 
state of nature.\2\
---------------------------------------------------------------------------
    \1\ Note that a proscription of all projects--capital investments--
on environmental grounds would yield a sharp reduction in aggregate 
wealth, and thus a decline in the aggregate willingness and ability to 
preserve environmental quality. For a discussion of this relationship 
between aggregate wealth and environmental conditions, see e.g. 
Soumyananda Dinda, ``Environmental Kuznets Curve Hypothesis: A 
Survey,'' Ecological Economics, Vol 49 (2004), pp. 431-455, at ftp://
ftp.soc.uoc.gr/students/aslanidis/My%20documents/papers/
Dinda%20%282004%29.pdf.
    \2\ Consider a homo sapiens baby borne in a cave some tens of 
thousands of years ago, in a world with environmental quality 
essentially untouched by man. That child at birth would have had a life 
expectancy of about ten years. Had it been given the choice it 
obviously would have opted for a certain decline in environmental 
quality in exchange for better housing, food, water, medical care, ad 
infinitum. In other words, that child would accept, eagerly, a massive 
investment program in infrastructure at the expense of some 
environmental quality, which is to say that environmental quality is 
one important dimension of the capital stock among many, and across 
which there are tradeoffs.
---------------------------------------------------------------------------
    Accordingly, modern societies evaluate tradeoffs among capital 
investments and other such projects and environmental effects, using a 
broad range of approaches and applications of various parameters. This 
explicit or implicit benefit/cost analysis properly considers the 
effects of a given project compared with the status quo, and not only 
on its own terms. And such proper benefit/cost analysis should balance 
the adverse effects of both insufficient review (too little attention 
to the potential adverse effects of the proposed project) and those of 
excessive delay (too little attention to the potential benefits of the 
proposed project). This latter tradeoff is similar to the standard 
``type 1/type 2'' error problem in statistics, in which the type 1 
error is rejection of the null hypothesis when it is true, while the 
type 2 error is acceptance of the null hypothesis when it is false.

    The status quo bias. NEPA reviews concentrate only on the potential 
adverse effects of the proposed project under consideration, even if 
that project, whatever its attendant asserted problems, would yield a 
clear and significant reduction in the likelihood of environmental 
damage, or reductions in the costs of achieving lower levels of risks. 
Consider for example a proposed pipeline that would transport petroleum 
products currently moved by railroad or by trucks. The following table 
summarizes this comparison of adverse incidents for the U.S. during 
2005 through 2009.

            Petroleum Transport Adverse Incidents, 2005-2009
------------------------------------------------------------------------
                 Average ton-miles/ Average incidents/ Incidents/billion
      Mode        year (billions)          year            ton-miles
------------------------------------------------------------------------
Trucking                      34.8              695.2              19.95
Railroad                      23.9               49.6               2.08
Liquid pipeline              584.1              339.6               0.58
Natural gas                  338.5              299.2               0.89
 pipeline
 
------------------------------------------------------------------------
 ASource: Diana Furchtgott-Roth and Kenneth P. Green, ``Intermodal
  Safety in the Transport of Oil,'' Fraser Institute, October 2013, at
  Table 8, at https://www.fraserinstitute.org/sites/default/files/
  intermodal-safety-in-the-transport-of-oil-rev3.pdf.


    The vastly greater safety of pipelines over trucking and rail 
transport of petroleum products is manifest; but NEPA reviews of 
proposed pipeline projects shunt this larger context aside, focusing 
only on the environmental effects of the proposed pipeline itself. This 
myopia is inconsistent with the larger goals of improved safety and 
reduced environmental risks, but is a direct consequence of the 
implementation of NEPA as written.\3\ This is particularly the case as 
technological improvements and other such advances enhance the 
environmental performance of new infrastructure projects relative to 
existing ones. A reform of this law by the Congress would yield 
environmental improvement and reduced costs for capital investment.
---------------------------------------------------------------------------
    \3\ See Benjamin Zycher, ``The Environmental Left and Keystone 
XL,'' The National Interest, January 27, 2017, at http://
nationalinterest.org/feature/the-environmental-left-keystone-xl-
19216?page=show.

    The ``completeness'' requirement. Under Scenic Hudson Preservation 
Conference v. Federal Power Commission, the second circuit held that 
the project under consideration could be approved only if ``the record 
on which it bases its determination is complete.'' \4\ The need for a 
``complete'' record is an obvious route toward endless litigation and 
delay, in that there is no limiting principle that would exclude 
consideration of any given potential environmental impact, regardless 
of how trivial or speculative.\5\ Such delay is inconsistent with the 
need for any modern economy to improve and replace infrastructure as it 
depreciates or becomes obsolete, whether economically or physically. 
And, again, it is inconsistent with the increased aggregate wealth 
needed for a growing population to maintain and improve environmental 
quality.
---------------------------------------------------------------------------
    \4\ 354 F.2d 608, 1 ERC 1084 (2d Cir. 1965). The decision can be 
found at http://elr.info/sites/default/files/litigation/1.20292.htm.
    \5\ For a very useful discussion of the relationship between NEPA 
and the traditional common law, see Richard A. Epstein, ``The Many Sins 
of NEPA,'' forthcoming, Texas A&M Law Review, Vol. 6, Issue 1.
---------------------------------------------------------------------------
    Epstein makes the obvious and correct point that for any project 
there is a hierarchy of potential effects, from the large and 
significant, to the small and insignificant, to the trivial.\6\ This 
list of potential effects, almost literally, is endless. Any reasonable 
review of a major proposed capital investment, intended to provide 
services and pose some environmental risks for many years under 
conditions of uncertainty, cannot do much better in terms of 
environmental protection than to focus on major impacts while insisting 
on lower-risk designs, ongoing inspections, and other procedures 
intended to avoid and to mitigate risks and adverse events as they 
emerge.
---------------------------------------------------------------------------
    \6\ Ibid.
---------------------------------------------------------------------------
    Ex ante examination of any and all risks--``completeness''--is 
preposterous in an economy in which capital investments must be made so 
as to avoid impoverishment and, indeed, environmental degradation.\7\ A 
reform of NEPA in this context would require that the Congress define 
the nature and magnitude of significant risks and environmental 
impacts, with less rather than more interpretive flexibility for the 
administrative agencies, under the reasonable assumption that the vast 
array of less-significant, small, and trivial risks are too lengthy to 
examine in detail, and that the very large number of such factors will 
tend to cancel them out as a whole, in particular when such less-
important impacts are viewed across the vast array of proposed 
projects.
---------------------------------------------------------------------------
    \7\ This raises the interesting issue of the precise goals of the 
mainstream environmental movement. As a rough generalization, is it 
environmental protection or simple obstructionism? This question is not 
addressed here.

    The cost-shifting problem. Not all environmental impacts are worth 
avoiding. That is, the benefits of a given project may outweigh any 
adverse environmental impacts, however defined, a truism that is the 
beginning of sensible benefit/cost analysis in this context.\8\ In 
order for decisionmakers systematically to achieve that end, they must 
receive the benefits and bear the costs of their decisions. Because the 
NEPA regulatory approach does not require compensation for asset 
owners--unlike the case under a takings approach--the law in effect 
allows Congress to demand a maximalist protection of environmental 
values without bearing any of the costs of doing so, in this case in 
terms of some sort of required budget outlay. NEPA demands that 
regulators
---------------------------------------------------------------------------
    \8\ For the classic discussion of this point, see Ronald H. Coase, 
``The Problem of Social Cost,'' Journal of Law and Economics, Vol. III 
(October 1960), pp. 1-44, at https://www.law.uchicago.edu/files/file/
coase-problem.pdf.

        ``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.'' \9\
---------------------------------------------------------------------------
    \9\ See section 101 (a) of NEPA, at https://www.energy.gov/sites/
prod/files/nepapub/nepa_documents/RedDont/Req-NEPA.pdf.

    Note the absence of any cost considerations or benefit/cost 
balancing parameters. This means that regulators are empowered--indeed, 
that they have a duty--to regulate projects in such a way that marginal 
costs are guaranteed to exceed marginal benefits, because government is 
instructed in effect to ``protect the environment'' without 
consideration of the explicit or implicit costs of doing so. As an 
aside, this system provides perverse incentives for private parties as 
well, because they bear all of the costs of environmental protection 
while most of the favorable effects accrue to the benefit of others. 
Hence, the ``shoot, shovel, and shut up'' phenomenon.
    An economy in need of constant capital investment in the face of a 
growing population, economic shifts, technological advances, 
depreciation of existing capital, and growing demands for environmental 
improvement should strive to balance such needs with the imperative of 
environmental concerns. The NEPA as currently written and enforced is 
inconsistent with that basic benefit/cost goal, a condition that should 
induce the Congress to reform this law so as to eliminate the three 
central problems discusses above.

                                 ______
                                 

               A Critique of Current Practices Under NEPA

                   Statement Submitted for the Record

                           Richard A. Epstein

                              May 10, 2018

Dear Chairman Bishop & Ranking Member Grijalva:

    I am writing this short Memorandum to outline what I think to be 
some serious difficulties in current administration of the National 
Environmental Protection Act (NEPA), both in its conception and 
execution. In so doing, I am taking issue with two earlier letters that 
you have received. The first is from 117 law professors, writing under 
the Auspices of the Center for Progressive Reform, who specialize in 
environmental law and related issues, which was sent to this Committee 
on April 24, 2018. The other is from Horst Greczmiel, which was 
delivered to this Committee of April 25, 2018.
    By way of background, I am familiar with the basic structure of 
NEPA from my past involvement in the area of environmental law. More 
recently, my involvement with NEPA was first hand because of the work 
that I did as a consultant for the GAIN Coalition--Grow America's 
Infrastructure Now. GAIN was in no way involved in the preparation of 
this Memorandum. But my work for GAIN has given me a greater 
appreciation of the difficulty and complexity of many of the issues 
that have arisen in connection with the ongoing litigation over the 
completion of the Dakota Access Pipeline (DAPL) and the Bayou Bridge 
Pipeline (BBP). These are two massive projects whose completion has 
been delayed by the sustained opposition from a variety of 
environmental groups. At the end of this Memorandum. I list some of the 
short articles that I wrote addressing these and other issues under 
NEPA.
Big Cases and Technological Progress
    At the outset, it is important to note that it is these big cases 
that in many ways determine the success or failure of the NEPA regime. 
It is of course the case that most proposed projects receive 
``categorical exclusions'' from NEPA. But the cases that count are 
those larger projects that trigger full scale opposition, not those 
that are no consequence under any environmental regime. As the 
environmental law professors note in their submission, in these cases 
the average duration has rise to 4.6 years in 2012 to 5.1 years in 
2016. The costs of these delays are measured not only in the carrying 
costs of running large projects, but often in the delay of getting new 
projects into service which present far lower environmental risks than 
the projects that they displace. Yet it is striking that neither of 
these letters look at all at the pipeline cases to see whether they 
represent a process that has worked effectively or one that needs 
serious revisions. Indeed, the issue is especially important because 
the passionate and misguided opposition was harmful to both key 
environmental values on the one hand and to the overall level of growth 
and prosperity on the other. In short, new pipelines seriously reduce 
the risk of the major damage that can result from the shipment of crude 
oil or natural gas by truck, rail, or even older pipelines as point 
properly stressed by Benjamin Zycher in his submission to this 
committee, The Status Quo Bias and Reform of the National Environmental 
Policy Act, May 2018. The advances in pipeline technology are 
substantial, so that it is imperative to get new facilities and 
equipment in place as soon as is possible. Any favorable evaluation of 
NEPA that ignores these major issues is necessarily inaccurate and 
incomplete.
    In stating my criticism of NEPA, I want to make it crystal clear 
that I am not in favor of eliminating either federal or state 
regulation (much of which takes the form of local NEPA programs) of new 
projects that have potential environmental impacts. Instead the issue 
is setting the appropriate framework in which the analysis should take 
place. In dealing with this issue, several caveats should be noted. The 
first is the major shift in technological advances since NEPA went into 
effect on January 1, 1970. To read these two defense of NEPA, it is as 
though the world of technology has not changed since the catastrophic 
Santa Barbara oil spill took place in 1969, when the technology for 
both drilling and clean-up were in their infancy. As technology in both 
these areas has improved markedly in the last 48 years, we should 
expect that the potential levels of danger should go downward, not 
upward. It is therefore something of a disturbing anomaly that the 
larger capital prospects now take longer to evaluate than earlier, even 
though they are safer than older projects on virtually every relevant 
dimension.
    The enormous strides in technology and engineering have transformed 
the environmental landscape, so that in virtually every area the 
design, construction, maintenance and operation of various projects are 
far safer and more reliable than they have ever been before. This issue 
is most evident in connection with the shipment of crude oil and 
natural gas through pipelines, which are markedly safer in every 
respect than they were even a decade ago, let alone the nearly 50 years 
since President Nixon signed NEPA into law on January 1, 1970. These 
pipelines are engineered to very high safety standards. They are far 
safer for the transportation of crude oil than the railroad cars and 
trucks that are commonly used for this purpose. The pipelines operate 
in controlled environments. These systems are equipped state-of-the-art 
monitoring devices that allow them to be shut down quickly in the event 
that any malfunction is detected. The newer pipelines are buried deeper 
in the ground than older pipelines, which necessarily suffer from some 
degree of wear and tear. Yet unfortunately, the dangers from keeping 
the status quo ante in place were never once discussed in two 
exhaustive decisions by Judge James Boasberg, here \1\ and here,\2\ in 
the District Court for the District of Columbia, and the single 
decision \3\ issued by Judge Shelly Dick in the District Court of 
Middle District of Louisiana on February 27, 2018.
---------------------------------------------------------------------------
    \1\ https://scholar.google.com/
scholar_case?case=11177895659901541796&q=standing+rock+sioux 
+tribe&hl=en&as_sdt=6,33.
    \2\ https: / / scholar.google.com / 
scholar_case?case=15125037573949037207&q=Standing+Rock+ 
Sioux+Tribe+v.+U.S.+Corps+of+Engineers+Civil+Action+No.+16-
1534+(JEB)&hl=en&as_sdt= 400006.
    \3\ https://earthjustice.org/sites/default/files/files/ABK-et-al-v-
Corps-Ruling.pdf.
---------------------------------------------------------------------------
Political Resistance to Infrastructure Improvement
    More regrettably, the major technological advances have been 
ignored by the opponents of both DAPL and the BBP instances. In 
connection with these pipelines, the term ``Lawfare'' accurately 
describes the full scale opposition to the completion of both these 
pipelines. Even though the DAPL pipeline is complete, and the BBP 
nearly so, there is still the possibility that they might be shut down 
on the grounds that there is some legal hurdle that they have not yet 
cured--even though it is far more dangerous to let a complex facility 
sit idle than it is to use it in the way in which it is intended. It 
should be perfectly clear that the NEPA proceedings on pipelines should 
address their compliance under the various substantive statutes, such 
as the Clean Water Act. They should not be used as an indirect means to 
attack the use of fossil fuels on the ground that they contribute to 
global warming or for the rectification of past injustices. But this is 
exactly the terms in which the opponents to the DAPL pipeline continue 
to express their concern. Here is one explicit acknowledgement of the 
difficulty from a prominent environmental group.

        When environmental groups coalesce against a pipeline project 
        today, they are doing so because further fossil fuel 
        development that ignores the accumulated legacy costs is simply 
        unfair to future Americans (let alone the average Pacific 
        Islander). It is an injustice, pure and simple. But it is both 
        a national and a local injustice and that compound context 
        complicates any analysis immensely.

        Opposing the Dakota Access Pipeline's crossing the Missouri 
        River directly upstream of the Sioux Indian Nation's water 
        intakes was justified both because it was an affront to the 
        Standing Rock people and as a symbolic gesture against still 
        more generations of Americans made to depend on `cheap' fossil 
        fuels.

Jamison Colburn, The `Weaponization of NEPA: A Hyper-Partisan Time for 
Bi-Partisan Solutions, April 30, 2018, available at http://
www.nepalab.com/?p=1601.

    I put aside that these sweeping generalizations are offered as if 
they were self-evident truths, to make this simple procedural point. 
Debates over these contentious issues are perfectly appropriate for 
Congress, where they can, and should be, met by opposition from those 
who take different view. But they have no role to play in the 
determinations that are made in the case of individual applications. 
The admission that NEPA is a vehicle through which to raise these 
issues shows the serious risk of abuse of the NEPA project. It may well 
be that environmental groups like the Sierra Club and EarthJustice 
oppose on pipeline construction on these political grounds. But 
objections raised under NEPA should not be turned into a proxy war 
against the completion of DAPL or the BBL which, as the Army Corps of 
Engineers has demonstrated, presents no serious environmental risks. 
The risk of stranding billions of dollars in infrastructure investments 
from one or two projects is not something that Congress should 
overlook. Nor should it turn a blind eye to the massive dislocation 
that closing down pipelines has both in the production and distribution 
of fossil fuels.
The Expansion of NEPA
    The next question is why NEPA has in many large cases turned out to 
create these long and complex disputes. Much of the explanation lies in 
a key 1971 decision by the late Judge J. Skelly Wright in Calvert 
Cliffs' Coordinating Committee v United States Atomic Energy 
Commission, which authorized private rights of action by any private 
individual or group that sought to set aside any permit that had been 
issued by the applicable Federal agency--in this instance the United 
States Atomic Energy Commission. Indeed, one of the major factors that 
led to the implosion of the nuclear power industry in the 1970s was the 
string of successful lawsuits that were brought against the 
construction of new nuclear power plans. Yet in 1971 Judge Wright 
welcomed a development that in his words marked ``only the beginning of 
what promises to become a flood of new litigation--litigation seeking 
judicial assistance in protecting our natural environment.''
    Before Calvert Cliffs, NEPA was a statute that was intended to 
allow an agency to collect relevant information. This one decision 
marked a huge transformation in NEPA. What was once a statute that 
sought to allow the agency to consider all relevant issues from all 
points of view before making its own final decision of how any statute 
should be applied. But once judicial review was allowed, the parties 
who were most opposed to the new project could dominate the judicial 
examination as to whether and if so how, project should proceed. It has 
often been said that NEPA is only a ``procedural'' statute, as if that 
designation somehow minimizes its impact on project development. But 
issuing a blanket injunction when there is not actual or threatened 
harm is an extraordinarily powerful remedy that can inflict great 
hardship on any private or public project which can find large 
investments tied up for years until endless list of disclosures is 
finally made, at which point the project in question may have to be 
abandoned or modified because it is over budget or no longer needed.
    It is even more unfortunate that since the key 1983 Supreme Court 
decision \4\ in Motor Vehicle Manufacturers Association v. State Farm 
Mutual Automobile Insurance Co, NEPA and the Administrative Procedure 
Act often read together, such that the ``arbitrary and capricious'' 
standard contained in Section 706(a) of the APA is read to require 
``hard look'' review by a court. That hard look standard is often read 
to mean that the omission of any relevant issue under the applicable 
substantive standard, or the consideration of any irrelevant issue is 
enough to bring the approval process to a halt. No complex 
Environmental Assessment or Environmental Impact Statement can meet 
that standard, if it has to cover thousands of issues and disregard 
thousands of others. The correct interpretation of arbitrary and 
capricious as it applies to the overall agency determination is whether 
it makes a good faith effort to balance what it considers the relevant 
factors. On this view, rarely if ever would a determination be set 
aside because it considers something that a court regards as irrelevant 
or regards disregards something that is relevant. So long as the 
overall effort is conscientious and in good faith, the determination 
should stand, even if a court disagrees with the factors that should be 
weighed, and the weight to be attached to each of them.
---------------------------------------------------------------------------
    \4\ https://scholar.google.com/
scholar_case?case=759595841034114890&q=State+Farm+Insurance 
+v.+1983&hl=en&as_sdt=6,33.
---------------------------------------------------------------------------
    The situation in NEPA cases can easily get worse because the 
standard judicial remedy in these cases is ``vacatur,'' such that the 
permission given for the EA or EIS is revoked, and the process has to 
start over again, where yet another round of hearings can be required, 
so that delay become institutionalized. The defenders of NEPA point out 
that there are often multiple sources of delay that do not directly 
implicate NEPA, but that observation offers no excuse for the delays 
that are introduce whenever a court or an administrative agency decides 
to turn up the heat on any proposed project subject to NEPA review. 
Indeed, one of the conspicuous forms of political misbehavior in 
connection with the DAPL pipeline were the decisions of high officials 
in the Obama administrative to impose additional delays that overrode 
decisions of the Army Corps of Engineers and Judge Boasberg, both of 
which had allowed these projects to go forward. NEPA has too much play 
in the joints if allows political appointees to override the technical 
decisions that have approved various projects.
What Should be Done?
    Plainly something should be done to address the NEPA logjam in 
major cases. Here are two key paths to improvement.
    First, one important recent step was taken in Executive Order 
13807, of August 15, 2017, which requires the review of ``major 
infrastructure projects'' as One Federal Decision, which was followed 
up on March 20, 2018, with a Memorandum for Heads of Federal 
Departments and Agencies. The more linear the process, the fewer the 
delays and inconsistently.
    Second, in dealing with the appropriate cost/benefit analysis in 
major cases, several changes in approach are needed. Any NEPA review 
should always include an explicit discussion of the environmental harms 
that will be averted or alleviated by prompt completion of the existing 
project. Where those are overwhelming, as is the case with new 
pipelines, the appropriate response is to begin construction as soon as 
possible once the basic plans have been approved. Thereafter as 
problems emerge, these should be addressed onsite by both the project 
developers and government oversight, with a view to stopping serious 
problems before they emerged. By delaying the review process, until 
these concrete issues arise, both time and money can be saved by not 
addressing remote contingencies that may never occur. In response, the 
defenders of NEPA often say that it is important to ``look before you 
leap.'' But in a NEPA review, there should never be any leaps at all. A 
far sounder procedure is not to front-load the review process so that 
everything is discussed ad nauseam before anything constructive can be 
done. With improved technology the correct approach is to stagger the 
inspection program in a timely fashion.
    Third, concerns with safety issues are, moreover, should not only 
be addressed by the NEPA process. It is important to insist that the 
developer of any new project be held strictly liable for the damages 
inflicted by leaks and discharges of all kinds and descriptions. It is 
also wise in most cases to insist that the project developer take out 
liability insurance against these risks so that a second pair of eyes 
can be brought to bear on the development of the project.
Conclusion
    The success or failure of NEPA reform requires that Congress and 
the agencies understand that the object of these reviews is to 
facilitate technical progress that will both help the environment and 
spur economic growth. It is not to stifle needed development. The 
letters written by the law professors and Mr. Greczmiel never own up to 
the important implications that follow from this simple observation. 
The status quo for major projects should not be allowed to stand.
References
Richard A. Epstein, Why The DOJ Order To Shut Down Construction On the 
DAPL Pipeline is Legally Indefensible, Forbes.com, September 14, 2016, 
available at https: / / scholar.google.com/
scholar_case?case=15125037573949037207&q=Standing+ 
Rock+Sioux+Tribe+v.+U.S.+Corps+of+Engineers+Civil+Action+No.+16-
1534+(JEB)& hl=en&as_sdt=400006.

Richard A. Epstein, Lawless Bureaucratic Obstruction Is No Substitute 
For the Rule of Law in The Dakota Access Decision, December 9, 2016, 
available at https: / / www.forbes.com/sites/richardepstein/2016/12 /09 
/lawless-bureaucratic-obstruction-is-no-substitute-for-the-rule-of-law-
in-the-dakota-access-decision/#244253b1b9d8.

Richard A. Epstein, The Environmental Permit Menace, Hoover Defining 
Ideas, December 12, 2016, available at https://www.hoover.org/research/
environmental-permit-menace.

Richard A. Epstein, Next Steps for Jude Boasberg in Dakota Access: Let 
DAPL remain In Operation, Forbes.com, July 17, 2017, available at 
https://www.forbes.com/sites/richardepstein/2017/07/17/the-next-steps-
for-judge-boasberg-in-dakota-access-let-dapl-remain-in-operation/
#48df5fe52d6b.

Richard A. Epstein, complete the Bayou Bridge Pipeline Now, March 9, 
2018, available at https: / / www.forbes.com/sites/richardepstein/2018/
03/09/complete-the-bayou-bridge-pipeline-now/#10e0d2881a1b.

Richard A. Epstein, Environmental Protectionism Run Amok, Hoover 
Defining Idea April 16, 2018, available at https: / / www.hoover.org/
research/environmental-protectionism-run-amok.

                                 ______
                                 

                         Osage Minerals Council

                   Statement Submitted for the Record

                              May 9, 2018

    Thank you Mr. Chairman and Members of the Committee for the 
opportunity to share with you the Osage Mineral Council's (``OMC'') 
concerns and recommendations regarding the National Environmental 
Policy Act (``NEPA''). The OMC is the tribal governmental body 
recognized under the Osage Allotment Act of June 28, 1906, 34 Stat. 
539, as amended (``1906 Act'') and by the Osage Nation Constitution, 
Article XV Section 4, to administer, develop, and protect the Osage 
Mineral Estate.
    The Osage Nation is the beneficial owner of the Osage Mineral 
Estate, which consists of all mineral interests below the surface of 
Osage County, Oklahoma. The 1906 Act lays the framework for regulation 
of oil and gas activities on the Osage Mineral Estate. Pursuant to the 
1906 Act, the Bureau of Indian Affairs (``BIA'') is required to 
regulate the Osage Mineral Estate in such a way ``that the highest 
percentage of ultimate recovery of both oil and gas may be secured.'' 
34 Stat. 539. This includes the BIA's implementation of NEPA. However, 
new development of the Osage Mineral Estate is currently stagnant, due 
primarily to the unnecessary imposition of NEPA requirements on any and 
all development of the Estate.
    Development of the Osage Mineral Estate has been ongoing since 
1895. The OMC is aware of no serious environmental effects of oil and 
gas development on the Osage Mineral Estate that warrant preparation of 
repetitive environmental assessments (``EA'') or an environmental 
impact statement (``EIS''), yet the BIA is requiring an EA for every 
lease, every workover, and every new drilling permit it approves. In 
fact, the OMC has no knowledge of an EA for oil and gas activities on 
the Osage Mineral Estate resulting in anything other than a ``Finding 
of No Significant Impact.'' Most of the wells on the Osage Mineral 
Estate are ``stripper wells'' that produce marginal oil and gas--less 
than 10 barrels per day. The BIA's NEPA procedures are critical to the 
income of the Osage Mineral Estate shareholders, known as headright 
holders, because they affect the cost, lead time, and even attitudes of 
oil and gas operators whose discretionary investments sustain 
production. The exorbitant costs entailed in preparation of an EA for 
activities to develop a mineral estate such as ours inhibit growth 
because it is simply not economically feasible to undertake these 
environmental studies.
    The stagnation of Osage Mineral Estate development can be traced to 
the Office of the Special Trustee (``OST'') and the Solicitor's Office. 
Following the $3.4 billion Cobell Trust Settlement in December of 2010, 
the OST maneuvered its way into the management of the Osage Mineral 
Estate and the results have been disastrous. OST frequently influences 
BIA management of the Estate, not for the benefit of the Osage or to 
maximize oil and gas production, but in furtherance of OST's mission--
to limit the liability of the U.S. to Indians. The result has been a 
significant stifling of oil and gas production, as well as other 
minerals, within Osage County. The Osage Mineral Estate has been 
developed for over 100 years, and only recently have these problems 
arisen. Private, non-Indian land owners challenged NEPA compliance, and 
the BIA has overreacted to these challenges due to the involvement of 
the OST and Solicitor's Office. The same thing happened during the 
negotiated rulemaking ``neg reg'' process, where OST and BIA tried to 
overtake responsibilities of the Tribe in an effort to avoid liability. 
The actions of the BIA and OST in the neg reg process were overturned 
in court. The OST and Solicitor's Office are now responsible for 
enforcing unnecessary NEPA requirements because of their concerns with 
potential breach of trust litigation and the potential liability of the 
United States for damages. The OST is requiring excessive NEPA 
compliance that makes the development of the Osage Mineral Estate cost 
prohibitive. Consequently, operators are not developing in Osage 
County, which harms the Osage Nation and its members and headright 
holders.
    Following the Cobell settlement and the remedial actions taken by 
the federal government, there is no longer a need for the OST. One 
positive result of the Cobell settlement is that it created and 
implemented good trust management systems. Now, OST has outlasted its 
purpose and needs to be sunsetted as Congress directed in the Indian 
Trust Asset Reform Act of 2016, 130 Stat. 432, and all of its staff and 
funding returned to the BIA so that it can manage the non-monetary 
trust assets of Indian tribes in a manner that allows for maximum 
development and revenue. Overall, the OST and its solicitors are 
breaching their trust responsibility in the name of NEPA compliance and 
putting the liability of the United States before and above its trust 
responsibility. The OST needs to be sunsetted because the Cobell and 
other tribal breach of trust cases are over, better trust management 
practices have been instituted, and the BIA should now manage the 
nonmonetary trust assets as required by Congress and federal common 
law. Post-Cobell, the BIA is able to properly manage the IIM accounts, 
and resources can be redirected from the OST to the BIA to properly 
serve and assist tribes.
    A threshold issue regarding Indian tribes and NEPA is whether NEPA 
should apply to Indian lands at all. Although it is well established in 
caselaw and regulations that NEPA applies to major federal action on 
Indian lands, typically triggered by approval of leases by the Bureau 
of Indian Affairs, this was not always the case. In fact, the 
legislative history of the NEPA gives no indication of whether Congress 
considered NEPA's application to Indian lands or whether Secretarial 
approvals of Indian leases constitute major federal actions.
    Absent any evidence to the contrary, it is logical that Congress 
did not intend to subject the discretionary execution of fiduciary 
duties imposed on the government by the trust responsibility and 
various federal statutes to the procedural and bureaucratic 
stranglehold that NEPA imposes on development. To impose the burden of 
NEPA on private Indian land places the Indians at an economic and 
competitive disadvantage when compared to non-Indian competitors not 
subject to NEPA, and subjects the development to their property and 
resources to judicial challenge by those with no connection to the land 
or affected community.
    Put another way, subjecting development on Indian lands to NEPA 
places Indian landowners in a uniquely disadvantageous position, where 
they not only must secure federal approval for almost any transaction 
involving the development of their lands, but then they must also wait 
months, and in some circumstances years, for federal government 
administrators to comply with NEPA before approval for development can 
be obtained. This scenario directly undermines the role of the 
government as trustee, where the government's duty to approve leases of 
Indian land if they are in the best interest of the landowners is 
directly supplanted by the requirement to burden the lease with 
competitive disadvantages of the administrative costs and delays 
associated with NEPA.
    For example, in 2013, the Commission on Indian Trust Administration 
and Reform reported that the Department of Interior does not have 
adequate resources to meet Indian leasing demands for oil and gas 
development, including the resources to analyze and approve NEPA 
documents.\1\ Additionally, according to a report from the Governmental 
Accountability Office (``GAO''), stakeholders, including Interior 
officials, have also highlighted this concern and ``further identified 
inadequate staff resources as a contributing factor in lengthy review 
times and a hindrance to development of Indian energy resources.'' \2\
---------------------------------------------------------------------------
    \1\ Report of the Commission on Indian Trust Administration and 
Reform, Approved December 10, 2013.
    \2\ GAO-15-502 Indian Energy Development, June 2015 at 24.
---------------------------------------------------------------------------
    In addition to delays caused by the willful understaffing and 
underfunding of the BIA, the involvement of other federal agencies in 
the NEPA process also works against tribes in their efforts to develop 
their land and resources. During the NEPA process, a number of other 
federal agencies may become involved in review of the document, 
increasing both the number of approvals needed for authorization and 
overall delay of the project. These administrative inefficiencies cost 
tribes time and money related to potential projects. Specifically, as 
noted in the GAO report, industry stakeholders have:

        [H]ighlighted the additional costs required for NEPA compliance 
        and the uncertainty associated with public opposition and 
        comments received during the NEPA process as factors that can 
        cause a developer to avoid Indian energy resources and choose 
        to develop non-Indian resources that do not require federal 
        agency action.\3\
---------------------------------------------------------------------------
    \3\ Id.

    In the same GAO report, officials from the Department of Interior 
validated industry's claim, stating that ``NEPA compliance reviews 
significantly increase the cost of conducting operations on Indian 
lands and, as a result, projects are moved to adjoining state or 
private lands where NEPA compliance is not required.'' \4\
---------------------------------------------------------------------------
    \4\ Id. at 26.
---------------------------------------------------------------------------
    From this evidence it is clear that the imposition of NEPA on the 
development of Indian lands has worked to increase the costs and delay 
of projects on Indian lands, driving developers away from Indian lands 
to lands that are not similarly burdened with NEPA's bureaucratic 
hurdles.
    As such, the application of NEPA to Indian lands is antithetical to 
the duty of the United States owed to Indian tribes under the federal 
trust responsibility. It was on this basis that the United States 
initially resisted the application of NEPA to Indian lands in Morton v. 
Davis,\5\ and it is on this same basis that the OMC continues to object 
to the applicability of NEPA to development on tribal lands.
---------------------------------------------------------------------------
    \5\ 469 F.2d 593 (10th Cir. 1972).
---------------------------------------------------------------------------
    While the OMC appreciates the need for environmental protections, 
such protections must be no more onerous than necessary and must not 
infringe upon a tribe's right to develop its minerals and its economy. 
To that end, we recommend the following:
1.  NEPA Should Limit Comments on On-Reservation Proposed Actions to 
        Tribal Members and Immediately Surrounding Communities.
    NEPA itself does not mandate agency consideration of public 
comments, but it does require that an EA or EIS be made available to 
the public. 42 U.S.C. Sec. 4332(C). NEPA's implementing regulations, 
however, currently contain a number of commenting requirements that 
allow the entire public to provide input to the NEPA process for a 
proposed action. 40 C.F.R. Sec. Sec. 1500.2(d), 1501.7(a), 1506.6; 43 
C.F.R. Sec. Sec. 46.235, 46.305, 47.435. These regulations speak 
broadly about involving and seeking comment from ``the public'' and 
exceed the requirements of NEPA itself.
    There are no reasonable constraints on who may comment on a 
particular proposed action, and often an agency will receive voluminous 
comments from individuals and organizations far removed from any 
potential or purported impacts of the activity. This does not benefit 
the NEPA process, and it actually impedes the agency by creating the 
additional work of reviewing the generally irrelevant comments. Simply 
put, if an individual or organization is not in close enough proximity 
to a project to be impacted by it, the agency should not expend federal 
resources considering and responding to that individual's or 
organization's comments.
    With respect to proposed actions in Indian country, public comment 
and involvement should be limited to tribal members and residents of 
immediately surrounding communities. This will greatly reduce agencies' 
time and resource expenditures and prevent outside influences from 
muddying the issues and injecting controversy into matters where none 
exists.
2.  NEPA Should Allow Categorical Exclusions when Proposed Activities 
        will Occur in Proximity to Existing Similar Activities that 
        have Resulted in No Significant Environmental Effects for Five 
        Years.
    NEPA should be amended to include a provision categorically 
excluding activities when substantially similar activities have already 
been permitted in the area and those permitted activities have shown no 
significant environmental effects for the past five years. The 
regulations implementing NEPA currently permit agencies to develop 
categorical exclusions that exempt certain activities from NEPA's EA 
and EIS requirements. 40 CFR Sec. Sec. 1500.4(p), 1500.5(k), 1501.4(a), 
1508.4; 43 C.F.R. Sec. Sec. 46.205, 46.210.

    A new statutory categorical exclusion should be created to exempt 
proposed actions from NEPA's EA and EIS requirements if

  1)  the proposed action is a feature of, or substantially similar to, 
            the already-approved action;

  2)  the proposed action would take place within the same analysis 
            area as the already-approved action; and

  3)  the already-approved action has had no significant environmental 
            impacts for the previous five years.

    The Council on Environmental Quality encourages the use of 
categorical exclusions because they 1) reduce paperwork (40 C.F.R. 
Sec. 1500.4(p)) and 2) reduce delay (40 C.F.R. Sec. 1500.5(k)). 
Categorical exclusions also reduce the resources spent analyzing 
proposals which generally do not have potentially significant 
environmental impacts and enable an agency to direct resources to 
proposals that may have significant environmental impacts. 83 FR 9535. 
The same justifications for categorical exclusions support this new 
categorical exclusion the OMC proposes.
    If an activity has been conducted for years without significant 
environmental impacts, it logically follows that conducting the same or 
substantially similar activities in close proximity to that existing 
activity, such that the environmental conditions are the same and have 
already been studied, will likewise produce no significant 
environmental impacts. It is therefore a waste of resources to expend 
time and money on EAs for those subsequent activities that, logic 
dictates, will not have significant environmental impacts. Codifying 
this categorical exclusion would substantially increase agency 
efficiency in complying with NEPA while relaxing the unnecessary 
restraints currently placed on oil and gas development on the Osage 
Mineral Estate and elsewhere where tribes rely heavily on natural 
resource development to support themselves and their citizens.
3.  NEPA Should Permit Tiering to Existing NEPA Documents when Proposed 
        Activities will Occur in Proximity to Existing Similar 
        Activities.
    Finally, NEPA should be amended to include a provision allowing an 
agency to ``tier'' to an existing NEPA document when the proposed 
activity is substantially similar to the activity assessed in the 
existing NEPA document and when the proposed activity would occur in 
the same analysis area studied by the existing NEPA document.
    The regulations implementing NEPA currently allow an agency to tier 
to an existing broad EIS from a subsequent narrower EIS or EA. 40 
C.F.R. Sec. 1508.28. This makes sense because there is no need for the 
subsequent narrower EIS or EA to duplicate analysis already conducted 
in the broad EIS. Likewise, NEPA should allow an agency to tier to an 
existing NEPA document when the environmental conditions are the same. 
Those environmental conditions have already been studied and assessed 
in the existing EA, as have the impacts of the activity on the 
environment. As with the categorical exclusion described above, tiering 
in this manner would reduce delay and paperwork and conserve resources, 
all of which will level the playing field for the development of Indian 
trust resources and make energy development of Indian resources 
consistent with the broader regional norms of development.
4.  The BIA should Adopt and Utilize Determinations of NEPA Adequacy 
        (DNAs).
    Determinations of NEPA Adequacy (``DNA'') are a NEPA compliance 
tool that is frequently used by the Bureau of Land Management (``BLM'') 
and should be equally utilized by the BIA. In accordance with the BLM's 
NEPA Handbook, a DNA is simply a form of NEPA documentation that 
confirms that an action or actions have already been adequately 
analyzed in existing NEPA documentation and that, therefore, no further 
NEPA compliance is necessary. The benefit of utilizing DNAs is that the 
BIA would not need to conduct new NEPA analysis every time a new action 
is proposed or a new well drilled. Instead, as an alternative to 
categorical exclusions or in addition to categorical exclusions, the 
BIA could avoid conducting new NEPA analysis by relying upon existing 
NEPA analysis of oil and gas development in Osage County.
    As noted above, oil and gas development has been occurring in Osage 
County for over 100 years and NEPA analysis has been completed 
innumerous times over many decades. No significant environmental damage 
or impacts from Osage oil and gas development have occurred in that 
time and no NEPA analysis has concluded with anything other than a 
FONSI. Despite this, an undue amount of NEPA analysis and compliance 
has taken place regarding production and development of the Mineral 
Estate. DNAs would be an easy solution for the BIA to avoid the 
burdensome, time-consuming, and costly NEPA processes while still 
complying with the mandates of NEPA and allowing for the maximum 
development of the Mineral Estate in furtherance of its trust duties. 
The BIA should adopt a procedure for the use of DNAs. These DNAs would 
confirm adequate analysis has been completed under NEPA and allow the 
Osage people to realize economic development and prosperity from the 
Mineral Estate.
    Thank you for the opportunity to provide the testimony of the Osage 
Minerals Council on the problems we face under NEPA, the obstructions 
it currently places on development of the Osage Mineral Estate, and how 
NEPA can be amended to remedy these issues. I hope that these 
recommendations will be duly considered and that positive changes can 
be made to minimize the unnecessary constraints NEPA places on tribal 
economic development and, specifically, development of the Osage 
Mineral Estate. Furthermore, it is the position of the OMC that the OST 
and its solicitors need to be sunsetted so that the BIA can function as 
a trustee without the undue pressure of OST on BIA for fear that 
activity may result in damages to the Indian beneficiary if they take 
action in furtherance of their trust responsibility. The BIA does not 
need a watch dog agency that curtails its ability to meet its trust 
obligations. The BIA needs to have all the Full Time Equivalent 
employees and the other budgetary outlays that have been taken from 
them by the OST so that the BIA can hire the appropriate trust 
management staff for the non-monetary trust assets of Indian country. 
Only then will the hard assets of the Tribal nations and their citizens 
be adequately developed and protected.

                                 ______
                                 

          Ute Indian Tribe of the Uintah and Ouray Reservation

                   Statement Submitted for the Record

                              May 8, 2018

    The Ute Indian Tribe of the Uintah and Ouray Reservation 
appreciates the opportunity to provide this testimony to the House 
Committee on Natural Resources' Subcommittee on Energy and Mineral 
Resources for its Oversight Hearing entitled the ``The Weaponization of 
the National Environmental Policy Act and the Implications of 
Environmental Lawfare.''
    The Ute Indian Tribe is a major oil and gas producer and uses 
revenues from that energy development as the primary source of funding 
for our tribal government and the services we provide our members. We 
use these revenues to govern and provide services on the second largest 
reservation in the United States. Our Reservation covers more than 4.5 
million acres, where the majority of our approximately 3,000 members 
reside.
    Our tribal government provides services to our members and manages 
the Reservation through 60 tribal departments and agencies including 
land, fish and wildlife management, housing, education, emergency 
medical services, public safety, and energy and minerals management. 
The Tribe is also a major employer and engine for economic growth in 
northeastern Utah generally. Tribal businesses include a supermarket, 
gas stations, a feedlot, an information technology company, a 
manufacturing plant, Ute Oil Field Water Services, and Ute Energy. Our 
governmental programs and tribal enterprises employ approximately 450 
people, 75% of whom are tribal members. Each year the Tribe generates 
tens of millions of dollars in economic activity in northeastern Utah. 
The Tribe takes an active role in the development of its resources as a 
majority owner of Ute Energy and owns numerous oil and gas wells on the 
Reservation.
    Despite the progress we have made, our ability to fully benefit 
from our resources is limited through the application of the National 
Environmental Policy Act ``NEPA'' by federal agencies overseeing oil 
and gas development on the Reservation. As it stands, the application 
of NEPA is causing energy companies to limit their activities on the 
Reservation hampering the Tribe's economic development and the economic 
incentive for producers to operate on the Reservation. As a result, the 
Tribe is not able to fully develop its resources and revenues available 
for tribal operations are limited.
I. NEPA Should Not Apply to Secretarial Approvals on Indian Lands
    A threshold issue regarding Indian tribes and NEPA is whether NEPA 
should apply to Indian lands at all. Although it is well established in 
caselaw and regulations that NEPA applies to major federal action on 
Indian lands, typically triggered by approval of leases by the Bureau 
of Indian Affairs, this was not always the case. In fact, the 
legislative history of the NEPA is silent of any indication of whether 
Congress considered NEPA's application to Indian lands or whether the 
Secretarial approval of Indian leases are major federal action.
    Absent any intent to the contrary, it is logical that Congress did 
not intend to subject the discretionary execution of fiduciary duties 
imposed on the government by the trust responsibility and various 
federal statutes to the procedural and bureaucratic stranglehold that 
NEPA imposes on development. To impose the burden of NEPA on private 
Indian land places the Indians at an economic and competitive 
disadvantage when compared to non-Indian competitors not subject to 
NEPA, and subjects the development to their property and resources to 
judicial challenge by those with no connection to the land or affected 
community.
    Put another way, subjecting development on Indian lands to NEPA 
places Indian landowners in a uniquely disadvantageous position, where 
they not only must secure federal approval for almost any transaction 
involving the development of their lands, but then they must also wait 
months, and in some circumstances years, before the federal government 
administrators comply with NEPA before approval for development can be 
obtained. This scenario directly undermines the role of the government 
as trustee, where the government's duty to approve leases of Indian 
land if they are in the best interest of the landowners is directly 
supplanted by the requirement to burden the lease with competitive 
disadvantages of the administrative costs and delays associated with 
NEPA.
    For example, in 2013, the Commission on Indian Trust Administration 
and Reform reported that the Department of Interior does not have 
adequate resources to meet Indian leasing demands for oil and gas 
development, including the resources to analyze and approve NEPA 
documents.\1\ Additionally, according to a report from the Governmental 
Accountability Office ``GAO,'' stakeholders, including Interior 
officials, have also highlighted this concern and ``further identified 
inadequate staff resources as a contributing factor in lengthy review 
times and a hindrance to development of Indian energy resources.'' \2\
---------------------------------------------------------------------------
    \1\ Report of the Commission on Indian Trust Administration and 
Reform, Approved December 10, 2013.
    \2\ GAO-15-502 Indian Energy Development, June 2015 at 24.

    In addition to delays caused by the willful understaffing and 
underfunding of the BIA, the involvement of other federal agencies in 
the NEPA process also works against Tribe's in the efforts to develop 
their land and resources. During the NEPA process a number of other 
federal agencies may become involved in review of the document, 
increasing both the number of approvals needed for authorization and 
overall delay of the project. For operations on the Uintah and Ouray 
Reservation, the United States Fish and Wildlife Service will consult 
on the document under Endangered Species Act Section 7 authority and 
the Environmental Protection Agency will often consult on air and water 
quality issues. These administrative inefficiencies cost the Tribe time 
and money related to potential projects. Specifically, as noted in the 
---------------------------------------------------------------------------
GAO report, industry stakeholders have:

        [H]ighlighted the additional costs required for NEPA compliance 
        and the uncertainty associated with public opposition and 
        comments received during the NEPA process as factors that can 
        cause a developer to avoid Indian energy resources and choose 
        to develop non-Indian resources that do not require federal 
        agency action.'' \3\
---------------------------------------------------------------------------
    \3\ Id.

The same GAO report, officials from the Department of Interior 
validated the claim of industry in stating that ``NEPA compliance 
reviews significantly increase the cost of conducting operations on 
Indian lands and, as a result, projects are moved to adjoining state or 
private lands where NEPA compliance is not required.'' \4\
---------------------------------------------------------------------------
    \4\ Id. at 26.

    From this evidence it is clear that the imposition of NEPA on the 
development of Indian lands has worked to increase the costs and delay 
of projects on Indian lands, driving developers away from Indian lands 
to lands that are not similarly burdened with NEPA's bureaucratic 
hurdles. As such, the application of NEPA to Indian lands is 
antithetical to the duty of the United States owed to Indian tribes 
under the federal trust responsibility. It was on this basis which the 
United States initially resisted the application of NEPA to Indian 
lands in Morton v. Davis,\5\ and it is on this same basis that the 
Tribe continues to object to the applicable of NEPA to development on 
tribal lands.
---------------------------------------------------------------------------
    \5\ 469 F.2d 593 (10th Cir. 1972).
---------------------------------------------------------------------------
    However, to the extent NEPA currently applies to development on 
tribal lands, there are a number of actions that can be taken to 
minimize the regulatory burden imposed on developers and Tribes, and in 
doing so, promote tribal sovereignty.
II. NEPA Should Limit Comments on On-Reservation Actions to Tribal 
        Members and Immediately Surrounding Communities
    NEPA boldly proclaims that ``each person has a responsibility to 
contribute to the preservation and enhancement of the environment.'' 
\6\ In doing so, it expressly contemplates input from the general 
public to help realize national environmental policies. The public is 
brought into the NEPA process in many ways. For example, major projects 
are required to prepare an EIS which must be published in the Federal 
Register for public review and notice and comment procedures are 
mandated in various circumstances throughout the NEPA process. 
Moreover, NEPA's implementing regulations stress public involvement by 
containing a number of commenting requirements to allow public input in 
the implementation of NEPA.\7\
---------------------------------------------------------------------------
    \6\ See 42 U.S.C. Sec. 4331(c).
    \7\ 40 C.F.R. Sec. Sec. 1500.2(d), 1501.7(a); Sec. 1506.6; 43 
C.F.R. Sec. Sec. 46.235, 46.305, 47.435.
---------------------------------------------------------------------------
    These regulations speak broadly about involvement from ``the 
public'' and in doing so exceed the statutory requirements of NEPA 
itself. The regulations provide no limitations on who may comment on a 
particular project, opening up agencies to dutifully receive comments 
from individuals and special interest organizations that are often 
outside of the projects geographically impacted area. This regime does 
not serve the goals of the NEPA process and actively inhibits agencies 
by requiring them to review, and in many cases respond, to comments 
that are generally inapplicable or at the very least not representative 
of localized concern.
    A one-size-fits-all approach to public participation in 
environmental decision making is not acceptable in the context of 
Indian lands. A system that was meant to promote inclusiveness and 
flexibility now runs amok with involvement from disinterested parties 
who have no real stake in the outcome other than their ability to 
impute their own values on actions that exclusively implicate local 
concerns. This broad implementation of public participation as it 
relates to development in Indian country has rendered it unwieldy, 
incoherent, and ad hoc.
    Moreover, subjecting Indian energy development to NEPA's public 
participation regime by allowing the public to present concerns for 
consideration before BIA approves leases and permits has had a negative 
impact on overall development. In the same GAO Report referred above, 
it is noted that stakeholders highlighted the ``uncertainty associated 
with public opposition and comments received during the NEPA process as 
factors that can cause a developer to avoid Indian energy resources and 
choose to develop non-Indian resources that do not require Federal 
agency action.'' \8\
---------------------------------------------------------------------------
    \8\ GAO-15-502 Indian Energy Development, June 2015 at 26.
---------------------------------------------------------------------------
    To illustrate the problems associated with NEPA's current public 
participation regime, one needs only to look at the example provided by 
the recent attempts to close the Bonanza Power Plant located within the 
exterior boundaries of the Tribe's Uintah and Ouray Reservation. The 
Plant is a five hundred (500) megawatt power plant that burns 
approximately 2 million tons of coal annually, contributing untold 
amounts of air pollution on the reservation and destroying local flora 
and fauna within a vast swath of land surrounding the Plant. Because of 
these environmental consequences and the plant's location on the 
Reservation, the Tribe was steadfast in support of the Plant's closure 
when both the lease supporting the Plant and the Plant's operating 
permit were up for review.
    However, during the ensuing meetings and hearing on the renewal of 
the Plant's coal lease and operating permit, the focus and attention 
was diverted from the inhabitants of the land who live with the 
consequences of the Plant on a daily basis, and was instead placed on 
the Coal mining company and various national public interest groups. In 
doing so, industry and public interests groups successfully hijacked 
the NEPA public participation process to realign the discussion to 
address their concerns and impose their individual ethics on decisions 
exclusively impacting tribal lands.
    In sum, the reality is that certain individuals or organizations 
participate in NEPA's public participation regime regardless of their 
proximity to a project or its impacts. In these cases, agencies can 
expend untold federal resources considering and responding to comments 
that only detract from the views that matter most, those of local 
concern.
    As such, with respect to NEPA's application to Indian lands, public 
participation should be limited to tribal members and residents of 
immediately surrounding communities. This will greatly reduce the time 
and resources agencies expend and prevent outside influences from 
muddying and complicating the issues and injecting controversy where 
none exists. Moreover, this will further the government's trust 
obligations to Tribes by eliminating the uncertainty developer's face 
associated with public opposition and comments received during the NEPA 
process. This policy makes sense from a Tribal sovereignty perspective, 
as members of the public who are not Tribal members should not have any 
say over Tribal development projects. Instead, tribal voices should 
have primacy in any discussion regarding the use and development of 
tribal lands and resources.
    Thank you for the opportunity to provide the testimony of the Ute 
Indian Tribe of the Uintah and Ouray Reservation on the inherent 
problems caused by NEPA's application to development on Indian lands 
and the barriers it places on development of our lands and resources. 
It is our hope that these comments are fully considered by the 
Committee and that positive changes can be made to minimize the 
unnecessary constraints NEPA places on tribal economic development.

                                 ______
                                 

Rep. Grijalva Submissions

                      Backcountry Hunters & Anglers

                                                     April 25, 2018

Hon. Rob Bishop, Chairman,
Hon. Raul Grijalva, Ranking Member,
House Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.

    Dear Chairman Bishop and Ranking Member Grijalva:

    On behalf of Backcountry Hunters & Anglers (BHA), the sportsmen's 
voice for our wild public lands, waters and wildlife and the fastest 
growing organization advocating for quality places to hunt and fish, I 
want to encourage you to work with us in developing modern solutions 
that collaboratively straddle the important balance between extractive 
needs, such as energy development, and land management practices that 
also uphold bedrock conservation laws and safeguard outdoor traditions 
like hunting and fishing on our public lands.
    The National Environmental Policy Act of 1969 (NEPA), while not 
perfect, is a vital conservation law that considers impacts to fish and 
wildlife habitat, hunting and fishing opportunities and other 
environmental factors before major activities and development projects 
are implemented on public lands. This regulatory procedure is an 
important step in planning processes that provides public engagement, 
solicits input from local stakeholders and gives the public an 
opportunity to provide comments, creating a transparent dialogue 
between diverse interests. By focusing on landscape level planning 
efforts and avoiding conflicts upfront, we can work together to ensure 
development activities, including resource extraction, can co-exist 
with fish and wildlife and uphold multiple-use mandates without having 
one use come at the expense of others like hunting and fishing.
    A solution-oriented approach that doesn't waive or exempt important 
NEPA processes lies in Congressmen Chris Stewart (R-UT) and Scott 
Tipton's (R-CO) Sage-Grouse and Mule Deer Habitat Conservation and 
Restoration Act (H.R. 3543). H.R. 3543 allows public land agencies to 
restore sagebrush habitat more efficiently by streamlining regulatory 
processes while also complying with existing laws and conservation 
policies. The bill reforms invasive species treatments, such as the 
removal of pinon and juniper trees, and facilitates sagebrush 
restoration, improving habitat conditions for sought-after game species 
like sage grouse and mule deer that thrive in healthy sagebrush 
landscapes.
    H.R. 3543 is a great example of modernizing land management 
practices and conserving critical fish and wildlife habitat. It is also 
a notable example of bipartisan agreement between federal, state, and 
local governments, the oil and gas industry, and conservation 
organizations. As discussions about reforming the National 
Environmental Policy Act progress, BHA is eager to work in partnership 
with you to advance bipartisan solutions that provide greater certainty 
to industries such as energy development and outdoor recreation in 
addition to serving the interests of hunters, anglers and wildlife on 
public lands.

            Sincerely,

                                                 John Gale,
                                             Conservation Director.

                                 ______
                                 

                                      GreenLatinos,
                                           The City Project

                                                     April 24, 2018

Hon. Rob Bishop, Chairman,
Hon. Raul Grijalva, Ranking Member,
House Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.

Re: The Weaponization of the National Environmental Policy Act and the 
        Implications of Environmental Lawfare

    Dear Chairman Bishop, Ranking Member Grijalva, and Honorable 
Members of the Committee:

    We appreciate the opportunity to provide written comments for the 
Committee's hearing on ``The Weaponization of the National 
Environmental Policy Act and the Implications of Environmental 
Lawfare.'' Please accept these comments for the hearing's official 
record.
    We reject the premise of the hearing and the misuse of the term 
``lawfare'' as applied to NEPA.\1\ ``Broadly defined, `lawfare' is the 
manipulation of the legal system against an enemy with the intent to 
damage or delegitimize them, waste their time and resources, or to 
score a public relations victory.'' The use of `lawfare' misstates the 
facts and the experience of NEPA as applied for over 40 years.
---------------------------------------------------------------------------
    \1\ National Environmental Policy Act, 42 U.S.C. 4321 et seq.
---------------------------------------------------------------------------
    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,''

--James Watkins, Secretary of Energy under Republican President George 
                                                              H.W. Bush

    NEPA provides a proven bulwark against hasty or wasteful federal 
decisions by fostering government transparency and accountability. NEPA 
ensures federal decisions are democratic at their core by guaranteeing 
meaningful public involvement. NEPA 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 rule of law under NEPA, to enable 
fair, efficient, and effective review by the people. We are especially 
committed to enforcing NEPA to evaluate impacts of environmental 
policies and programs on people of color and low-income people.
    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. Nevertheless, Latinos, and other people of color, are often 
marginalized by public officials, government agencies, mainstream 
environmentalists, and the media.\2\ Proper enforcement of NEPA can 
help address these environmental injustices.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    The National Academies of Sciences, Engineering, and Medicine 
recognizes the importance of enforcing environmental and civil rights 
laws to promote human health, a healthy environment, and community 
resilience in the committee report called Communities in Action: 
Pathways to Health Equity (2017). Well-documented threats to healthy 
communities include environmental exposures to lead, particulate 
matter, proximity to toxic sites, water contamination, air pollution, 
and more--all of which are known to increase the incidence of 
respiratory diseases, various types of cancer, and negative birth 
outcomes and to decrease life expectancy.
    Low-income communities and communities of color have an elevated 
risk of exposure to environmental hazards and disproportionately lack 
access to environmental benefits, such as parks and green space. In 
response to these inequities, the field of environmental justice seeks 
to achieve the fair treatment and meaningful involvement of all people 
regardless of race, color, national origin, or income, with respect to 
the development, implementation, and enforcement of environmental laws, 
regulations, and policies.\3\
---------------------------------------------------------------------------
    \3\ National Academies of Sciences, Engineering, and Medicine, 
Committee Report, Communities in Action: Pathways to Health Equity 
(2017), p. 144. See generally the following pages and authorities 
cited: S-12, S-14, 1-9, 3-35 to -38, 3-3 to 3-48, 6-7 to -9, 5-72 to -
78, 6-13 to -22 (civil rights strategies and equity framework to avoid 
displacement), 7-2 to -5, 8-15 to -18, Recommendations 3-1, 6-1 and 
7.1. The full report and highlight are available at 
www.nationalacademies.org/promotehealthequity.
---------------------------------------------------------------------------
    NEPA and other regulations are not the major cause of delay in 
infrastructure development and government decision-making.\4\ The 
Congressional Research Service (CRS) has identified alternative causes 
of delay including lack of funding that are entirely outside the NEPA 
process. The U.S. Department of Treasury concluded ``a lack of funds is 
by far the most common challenge to completing'' major infrastructure 
projects.
---------------------------------------------------------------------------
    \4\ 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.
---------------------------------------------------------------------------
    This Congress has proposed bills that would disregard the role of 
objective truth and scientific evidence in government decision making, 
waive NEPA via legislative categorical exclusions, limit the scope of 
environmental reviews to ignore climate impacts, and reduce government 
accountability by limiting judicial review. These attacks reflect a 
misguided ideological bias to eliminate NEPA, the legacy of bipartisan 
support for NEPA, and the rule of law.
    GreenLatinos is a national coalition of Latino environmental and 
conservation advocates. The City Project's mission is equal justice, 
democracy, and livability for all.
    We urge this Committee in the strongest possible terms to ensure 
taxpayer dollars are used to protect our health, our people, and our 
environment. People of color care about protecting people, 
biodiversity, places, and values under NEPA through democratic 
participation and the rule of law.

            Very truly yours,

        Mark Magana, President,       Robert Garcia, Founding Director,
        GreenLatinos                  The City Project

                                 ______
                                 

                                                     April 24, 2018

    Dear Chairman Bishop, Ranking Member Grijalva, and Committee 
Members:

    We, the undersigned 119 law professors, understand that the House 
Committee on Natural Resources is holding a hearing on April 25, 2018, 
titled ``The Weaponization of the National Environmental Policy Act and 
the Implications of Environmental Lawfare,'' and write to express our 
views about NEPA and NEPA litigation. Contrary to the premise implied 
by the title of the hearing, we believe that NEPA continues to serve 
its important purpose of informing government decisionmakers and the 
public about the environmental consequences of federal actions. We also 
believe that litigation under the statute, on the whole, continues to 
appropriately hold federal agencies accountable for their legal 
obligations. In this letter, we focus our comments on data about NEPA 
compliance and litigation, which, in our view, do not support claims 
that NEPA imposes undue burdens on federal agencies or the private 
parties seeking regulatory permissions from them.
    There is little evidence that litigation under NEPA is out of 
control or that NEPA processes are unnecessarily protracted. To the 
contrary, environmental reviews and procedures conducted under NEPA are 
typically circumscribed and rarely challenged in court. Roughly 99% of 
the many thousands of federal actions with potentially significant 
environmental impacts are covered either by ``categorical exclusions'' 
(CEs) to NEPA procedures or by ``environmental assessments'' (EAs), 
which take days to months, respectively, to complete. By contrast, 
detailed environmental impact statements (EISs) now consistently number 
below 200 annually across the entire federal government. The volume of 
litigation under NEPA is also low: fewer than 100 NEPA cases are filed 
in district court annually, about half of which involve challenges to 
EISs. A small fraction of environmental reviews under NEPA therefore 
either require detailed EISs or are subject to judicial challenges. 
And, as NEPA programs have matured, federal agencies have become more 
proficient at identifying the actions that require the highest level of 
analysis. This is reflected both in the number of EISs prepared 
nationally, which has been falling, and the increased use of CEs. That 
the time required to prepare an EIS has increased over the last decade 
or so also reflects federal agencies' increasing proficiency with 
administering the statute; as federal agencies have increased the 
threshold for preparing an EIS, on average, the magnitude and 
complexity of the environmental impacts associated with the federal 
actions covered by EISs have increased proportionately.
    Moreover, neither the number of NEPA cases filed annually nor their 
outcomes suggests that NEPA litigation is out of step with litigation 
in other areas of administrative law, and NEPA litigation is not 
unusually protracted as compared to other administrative law litigation 
in federal courts. Evidence also indicates that NEPA litigation is 
grounded in legitimate claims, rather than being used principally as a 
strategic device to delay projects opposed by litigants without regard 
to likely success on the merits. This is reflected in the observation 
that environmental organizations prevail in NEPA litigation at rates 
that equal or substantially exceed success rates in administrative law 
challenges generally.

    This letter addresses the following key points:

     A small percentage (1%) of federal actions require an 
            environmental impact statement; most are covered by 
            categorical exclusions or environmental assessments.

     The small subset of actions that require an EIS represent 
            significant decisions, which warrant being subject to NEPA 
            analyses and public review processes.

     While EISs take several years to complete, the examples 
            raised by critics of NEPA are often extreme outliers that 
            are not representative of NEPA processes generally.

     Neither the number of NEPA cases filed annually, which is 
            low and consistent across time, nor the outcomes of these 
            cases suggest that NEPA litigation is being abused or used 
            for the sole purpose of strategic delay.

     For most federal agencies, a NEPA lawsuit is a rare event 
            and claims that NEPA poses a significant burden have little 
            basis in fact.

    We discuss each of these points in further detail below. In the 
aggregate, they demonstrate that criticisms of NEPA are not supported 
by the available evidence on environmental review processes and 
litigation. While opponents of NEPA may identify isolated cases of 
particularly prolonged NEPA review or litigation, data do not support 
claims that systemic problems exist requiring legislative attention.
I. The Role of EISs
    As we will discuss, available data indicate that federal agencies 
require preparation of an EIS for a small fraction of federal actions 
and that these EISs are disproportionately prepared by a few agencies. 
In other words, most agencies implement NEPA with relative ease and 
most federal projects are reviewed quickly and at low cost.
    The vast majority of agency actions subject to NEPA review do not 
involve preparation of an EIS. The non-partisan Government 
Accountability Office (GAO) estimates that roughly 94% of NEPA 
decisions fall under CEs,\1\ about 5% are covered by EAs, and less than 
1% are reviewed under EISs.\2\ If one includes draft, supplemental, and 
final NEPA documents government-wide, this translates to the 
preparation of an average of roughly 137,750 CEs, 6,820 EAs, and about 
435 EISs annually for the period 2008 through 2015.\3\ For the period 
2008 through 2015, EPA data reveal that the actual number of EISs 
issued each year is consistent with the GAO's estimate, averaging 224 
draft and 211 final EISs per year, but the number of final EISs 
declined over this period from a high of 277 in 2008 to about 170 by 
2016.\4\
---------------------------------------------------------------------------
    \1\ The GAO noted, however, that ``CEs are likely underrepresented 
in their totals because agency systems do not track certain categories 
of CEs considered `routine' activities.'' U.S. Government 
Accountability Office, GAO-14-370, National Environmental Policy Act: 
Little Information Exists on NEPA Analyses 8-9 (April 2014).
    \2\ Id. at 8. These estimates are imperfect, because federal 
agencies typically do not record the number of CEs or EAs they issue, 
despite the fact that most agency compliance with NEPA is covered by 
them. Id. With respect to particular agencies, the GAO found, for 
example, ``Department of Energy (DOE) reported that 95 percent of its 
9,060 NEPA analyses from fiscal year 2008 to fiscal year 2012 were CEs, 
2.6 percent were EAs, and 2.4 percent were EISs or supplement 
analyses.'' Id. Similarly, the FHWA also reported that 96% of FHWA-
approved projects in 2009 ``involve[d] no significant environmental 
impacts and, hence, require limited documentation, analysis, or review 
under NEPA''. Id; cf. Linda Luther, Cong. Research Serv., R42479, The 
Role of the Environmental Review Process in Federally Funded Highway 
Projects: Background and Issues for Congress 5 (2012).
    \3\ GAO, supra note 1, at 9 (the calculation is based on an 
extrapolation from the percentages for each NEPA process using the 
number of EISs issued by federal agencies in 2011). For further 
comparison, CEQ was required to collect and issue a report on NEPA 
compliance in 2009. See American Recovery and Reinvestment Act of 2009, 
Pub. L. No. 111-5, Sec. 1609(c), 123 Stat. 115, 304 (2009); Nat'l 
Envtl. Policy Act, American Recovery and Reinvestment Act of 2009 & 
NEPA, https://ceq.doe.gov/ceq-reports/recovery_act_reports.html.
    \4\ EPA data were downloaded from the EIS Database for the period 
January 1, 2012 through December 31, 2015, which is available at: 
https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search. See also 
NAEP, Annual NEPA Report 2016 of the National Environmental Policy Act 
(NEPA) Practice 4-5 (2017). These results are roughly consistent with 
other work finding that EPA reported 253 (standard deviation of twenty-
six) EISs annually during the period 1987 through 2006. Piet deWitt & 
Carole A. deWitt, How Long Does It Take to Prepare an Environmental 
Impact Statement, 10 Envtl. Prac. 164, 171 (2008).
---------------------------------------------------------------------------
    A relatively small number of federal agencies account for most of 
the environmental reviews. Only five federal agencies issue more than 
10 final EISs per year and most issue fewer than 5 if they issue any at 
all.\5\ According to EPA and CEQ data for the period 1998 through 2015, 
four federal agencies issued more than 50% of the EISs published 
nationally: on average for this period the U.S. Forest Service (USFS) 
accounted for 24%, the Bureau of Land Management (BLM) accounted for 
8%, the U.S. Army Corps of Engineers (USACE) accounted for 10%, and the 
Federal Highway Administration (FHWA) accounted for 12%.\6\ The EPA 
data also reveal that thirty-six other federal agencies issued at least 
one EIS per year over the period 2012 through 2015, with the National 
Park Service (NPS) and the U.S. Fish and Wildlife Service (FWS) 
accounting for another 10% of the EISs issued, and the Federal Energy 
Regulatory Commission (FERC) rising in prominence starting in 2015 when 
it began issuing roughly the same number of EISs each year as the FWS 
(roughly 7 annually).\7\
---------------------------------------------------------------------------
    \5\ The five agencies are USFS (40/year), BLM (20/year), USACE 
(15/year), FHWA (13/year), and NPS (10/year).
    \6\ GAO, supra note 1, at 11; EPA EIS database, supra note 4.
    \7\ The U.S. Navy, Nuclear Regulatory Commission, Federal Transit 
Administration, Bureau of Reclamation, National Oceanic & Atmospheric 
Administration, and Department of Energy each accounted for between 2% 
and 3% of the EISs issued from 2012 through 2015 according to the EPA 
data. EPA EIS database, supra note 4.
---------------------------------------------------------------------------
    Cost and timing data for NEPA analyses are difficult to obtain, but 
available evidence does not support the view that NEPA systematically 
imposes unreasonable burdens on federal agencies or regulated 
entities.\8\ In 2003, a NEPA task force report ``estimated that an EIS 
typically cost [sic] from $250,000 to $2 million,'' whereas ``an EA 
typically costs from $5,000 to $200,000.'' \9\ The National Association 
of Environmental Professionals (NAEP) collects data on the time it 
takes for EISs to be completed. In a report covering the time period 
2000 through 2012, it found that the average preparation time was 4.6 
years in 2012 and that EIS preparation times had increased on average 
at a rate of thirty-four days per year.\10\ The average preparation 
time for an EIS rose by a further 11% to 5.1 years by 2016.\11\ In 
another survey covering twenty years (1987-2006), the average time for 
agencies to prepare an EIS was 3.4 years, with a standard deviation of 
2.7 years.\12\ This study also found significant differences among 
federal agencies, with the FHWA and USACE having mean preparation times 
that were 1.9 and 1.26 times longer, respectively, than the average for 
other federal agencies.\13\ Differences therefore exist in preparation 
times for EISs both within and among federal agencies.\14\
---------------------------------------------------------------------------
    \8\ GAO, supra note 1, at 12.
    \9\ Id. at 13-14. DOE collects some of the most detailed 
information on costs. For the period 2003 through 2012, it found that 
the median cost of an EIS was $1.4 million and the average $6.6 
million, with costs ranging from a low of $60,000 to a high of $85 
million; it also estimated that the median cost of an EA is $65,000, 
with a range from $3,000 to $1.2 million. Id. at 13.
    \10\ NAEP, Annual NEPA Report 2012 of the National Environmental 
Policy Act (NEPA) Practice 11-14 (2013), https://ceq.doe.gov/docs/get-
involved/NAEP_2012_NEPA_Annual_Report.pdf. Less information is 
available on EAs. According to a 2013 DOE report, the average 
completion time for an EA issued by DOE was thirteen months; by 
contrast, the average for the USFS was about nineteen months in 2012. 
GAO, supra note 7, at 15-16. Even less information is collected on CEs, 
but rough estimates exist that range from typical times of 1-2 days 
within DOE to 177 days within the USFS. Id. at 16.
    \11\ NAEP, supra note 3, at 12-15.
    \12\ Piet deWitt & Carole A. deWitt, How Long Does It Take to 
Prepare an Environmental Impact Statement, 10 Envtl. Prac. 164, 167 
(2008).
    \13\ The average for other federal agencies (excluding the USFS 
which was slightly lower) was 2.9 years (standard deviation of two 
years), whereas the average for the FHWA was 5.5 years (standard 
deviation of 3.2 years) and the average for USACE was 3.7 years 
(standard deviation of 2.4 years). Id.
    \14\ The FHWA is an outlier among federal agencies (completing less 
than 10% of its EISs in two years or less), while the USFS managed to 
prepare more than half of its EISs in two years or less. Id. at 169.

    The modest increase observed in the average time required to 
complete an EIS has occurred coincident with a 39% decrease in the 
number of EISs prepared. These opposite trends suggest that agencies 
have increasingly relied upon EAs to address projects that are less-
controversial or have fewer impacts, and that the remaining pool of 
projects reviewed under an EIS are more complicated and require 
comparatively more analysis. The drop in the number of EISs completed 
in a year is consistent with the shift away from EISs.\15\ Overall, the 
data do not support a conclusion that NEPA compliance has, on average, 
become significantly more burdensome.
---------------------------------------------------------------------------
    \15\ NAEP, supra note 3, at 12-15.

II. NEPA Litigation
    Data related to NEPA litigation, like that on NEPA compliance, do 
not evidence an increasing or unreasonable delay for federal projects. 
In particular, plaintiffs, on average, are more likely to succeed in 
NEPA litigation than in other administrative law litigation, which is 
inconsistent with the claim that plaintiffs use NEPA strategically to 
delay or impede projects without evaluating the soundness of their 
claims.

    A recent study examined NEPA litigation over a 15-year period 
encompassing the George W. Bush and Barack Obama Administrations.\16\ 
Just as completion of EISs is dominated by a few agencies, so too is 
NEPA litigation. About three-quarters of district and circuit court 
cases with NEPA claims were filed against five agencies, each of which 
either manages federal lands or has principal authority over protecting 
natural resources.\17\ Two federal agencies, the USFS and BLM, 
accounted for more than 50% of the district court cases. Notably absent 
from this list are agencies that fund or permit major infrastructure 
projects, such as the FHWA, and agencies with authority over major 
federal facilities, such as the Department of Defense (DOD) and the 
DOE.
---------------------------------------------------------------------------
    \16\ David E. Adelman & Robert L. Glicksman, Presidential and 
Judicial Politics in Environmental Litigation, 50 Ariz. St. L.J. 1 
(forthcoming 2018). The study centers on two samples consisting of 498 
district court cases and 334 circuit court cases but also includes 
auto-coded analysis of the full populations of 1,572 district court and 
656 circuit court cases litigated between 2001 and 2015.
    \17\ The five federal agencies are the USFS, BLM, FWS, National 
Marine Fisheries Service (NMFS), and USACE.
---------------------------------------------------------------------------

      Figure 1: Number of NEPA Cases by Federal Defendant 2001-15
      
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


While this pattern is driven in part by the large geographic 
scale and environmental sensitivity of the public lands each agency 
manages, along with the large share of EISs prepared by those agencies, 
the decisions of these agencies still appear more likely to be the 
subject of NEPA litigation than decisions by other agencies. Many 
federal agencies routinely undertake or oversee actions with large 
environmental impacts and yet are rarely subject to lawsuits, notably 
agencies such as DOE, the Department of Defense, and the FHWA.\18\ 
Table 1 below provides a measure of the observed imbalance by comparing 
the percentage of the total number of EISs issued nationally by 
agencies against the percentage of the total number of NEPA suits with 
EIS-related claims filed against them. Table 1 below shows that for all 
but the BLM, the relative litigation rates were much higher for the 
land management and natural resource conservation agencies. Conversely, 
the litigation rates for agencies that oversee major infrastructure 
projects were substantially below average for all but FERC, which was 
essentially at the mean for agencies completing a significant number of 
EISs. Accordingly, in both absolute and relative terms, NEPA compliance 
and litigation are focused on federal land management and protection of 
endangered species, as opposed to major construction or infrastructure 
projects.
---------------------------------------------------------------------------
    \18\ Only the FHWA accounted for more than 5% of the district court 
cases filed, and it accounted for just about 6% if cases involving 
other agencies within DOT are included.
---------------------------------------------------------------------------
    The focus of NEPA litigation on a small subset of federal agencies 
is mirrored in the geographic distribution of cases across federal 
circuits. Most federal land is located in western states, suggesting 
that on this basis alone one would expect cases to be filed 
disproportionately in the Ninth and Tenth Circuits, which together 
encompass 99% of BLM land, 85% of USFS land, and 91% of NPS land.\19\ 
Two-thirds of the district court cases were filed in either the Ninth 
or Tenth Circuits and 12% were filed in the D.C. Circuit.\20\ The 
distribution of appeals across the federal circuits largely matches the 
district court filings.\21\ At the state level, two-thirds of the cases 
were filed in just ten states,\22\ and just four states (California, 
Montana, Oregon, Arizona) and the District of Columbia accounted for 
half of the cases. Only two states of the top ten, Florida and New 
York, were eastern states and each has distinctive characteristics--
Florida has many endangered species and wetlands (including the 
Everglades),\23\ and New York has significant wetlands. The D.C. 
Circuit is unique because plaintiffs can use it as an alternative venue 
to the circuit in which a federal action is located because most 
federal agencies are based in D.C.
---------------------------------------------------------------------------
    \19\ The percentages for each circuit are as follows: the Ninth 
Circuit encompasses 72% of BLM land, 64% of USFS land, and 84% of NPS 
land; the Tenth Circuit encompasses 27% of BLM land, 22% of USFS land, 
and 7% of NPS land. Carol Hardy Vincent et. al., Cong. Research Serv., 
R42346, Federal Land Ownership: Overview and Data 9-11, 21 (2017), 
https://fas.org/sgp/crs/misc/R42346.pdf.
    \20\ The distribution of cases across federal circuits was similar 
in our sample study: Ninth Circuit--51%, Other Circuits--27%, D.C. 
Circuit--12%; Sixth Circuit--3%; and the Tenth Circuit--7%.
    \21\ The appeal rate in the Tenth Circuit was almost twice that of 
other circuits, as it accounted for 12% of the appeals but just 6.7% of 
the district court cases. Statistically, the small absolute number of 
appeals in the Tenth Circuit, just thirty-nine in total, may foreclose 
ruling out random variation.
    \22\ The states are: Arizona, California, Colorado, District of 
Columbia, Florida, Idaho, Montana, New York, Oregon, and Washington. 
Only Colorado, Florida, and New York are outside the Ninth or D.C. 
Circuits.
    \23\ Florida also ranks 15th nationally with regard to the 
percentage (13.0) of federal land in the state. See Federal Land 
Ownership: Overview and Data, supra note 19, at 7.
---------------------------------------------------------------------------

    Table 1: Comparison by Agency of Percent EISs vs. Percent EISs 
                             Litigated \24\
---------------------------------------------------------------------------

    \24\ The EIS data are taken from the EPA EIS database that covers 
2012-2016. Environmental Impact Statement (EIS) Database, EPA, https://
cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search (last visited 
Jan. 26, 2018).


----------------------------------------------------------------------------------------------------------------
                         Agency                               EPA-EIS        Litigation Rates       Multiple
----------------------------------------------------------------------------------------------------------------
BLM                                                                   11.6              11.44                1.0
DOD                                                                    5.4               3.00                0.6
DOE                                                                    2.7               1.91                0.7
FERC                                                                   3.3               3.54                1.1
FHWA                                                                   8.2               2.18                0.3
FWS                                                                    3.9               7.08                1.8
NMFS                                                                   1.4               7.36                5.3
Other Agencies                                                        32.1              28.34                0.9
USACE                                                                  9.6               4.36                0.5
USFS                                                                  21.7              30.79                1.4
----------------------------------------------------------------------------------------------------------------


    Little evidence exists that environmental plaintiffs,\25\ whether 
national or local organizations, are using NEPA for purely strategic 
reasons divorced from the strength of their legal claims to hold up 
government action. If environmental plaintiffs were filing cases 
without regard to the merits of their claims, we would expect them to 
prevail less often than other plaintiffs. Yet, they won substantially 
more often than other plaintiffs filing cases under NEPA at the 
district court level (35% versus 16%, respectively) and on appeal (27% 
versus 14%). In the broader context of judicial review, the success 
rates of environmental organizations in NEPA lawsuits were similar to 
the averages for challenges to agency action in a wide range of 
empirical studies; \26\ moreover, they were substantially higher than 
the global averages during the George W. Bush Administration.\27\ These 
findings, along with the roughly proportional share of appeals by 
environmental organizations (i.e., rates comparable to other 
plaintiffs), provide strong evidence that NEPA litigation is grounded 
on legitimate claims. In sum, neither the number of cases filed 
annually nor their outcomes suggests that NEPA litigation is being 
abused or used for the sole purpose of strategic delay.
---------------------------------------------------------------------------
    \25\ Plaintiffs were divided into five broad classes: local 
environmental organizations; national environmental organizations; 
other non-governmental organizations; businesses and business 
associations; and cities, counties, states, and tribes. ``National 
environmental organizations'' were defined narrowly to include a small 
number of high-profile environmental organizations (e.g., Sierra Club, 
Natural Resources Defense Council, National Wildlife Federation, Center 
for Biological Diversity) to identify the organizations that litigated 
a large share of NEPA cases.
    \26\ See Thomas J. Miles & Cass R. Sunstein, The Real World of 
Arbitrariness Review, 75 U. Chi. L. Rev. 761, 767-68 (2008) (reporting 
data on administrative review cases involving EPA indicating that 
agencies prevailed on average 72% of administrative challenges on 
appeal); Richard J. Pierce & Joshua Weiss, An Empirical Study of 
Judicial Review of Agency Interpretations of Agency Rules, 63 Admin. L. 
Rev. 515, 515 (2011) (observing that ``[c]ourts at all levels of the 
federal judiciary uphold agency actions in about 70% of cases'' 
irrespective of the standard of review that they apply); Richard J. 
Pierce, What Do the Studies of Judicial Review of Agency Actions Mean?, 
63 Admin. L. Rev. 77, 84-85 (2011) (synthesizing the results of 
numerous empirical studies of judicial review and finding that agencies 
prevail in 64%-81% of the cases at the circuit level). A recent study 
finds that success rates in adjudicated cases in federal courts fell 
from 70% in 1985 to 33% in 2009. Alexandra D. Lahav & Peter Siegelman, 
The Curious Incident of the Falling Win Rate 1, (July 7, 2017) 
(unpublished manuscript), https://papers.ssrn.com/sol3/
papers.cfm?abstract_id=2993423.
    \27\ During the Bush Administration environmental organizations 
prevailed in 45% and other plaintiffs in 20% of the cases; during the 
Obama Administration, they prevailed in 24% and 13%, respectively, of 
the cases. On appeal during the Bush Administration, environmental 
organizations prevailed in 35% of the cases and other plaintiffs 
prevailed in 16%, whereas during the Obama Administration, success 
rates converged to 17% and 15%, respectively.
---------------------------------------------------------------------------

        Figure 2: Duration of NEPA Litigation in District Courts
        
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]        



By the standards of federal administrative litigation,\28\ the 
duration of NEPA litigation is roughly comparable to or shorter than 
that of administrative law cases generally (see Figure 2). The median 
duration of a NEPA case was less than two years (twenty-three months), 
and 75% of the cases were resolved within 3.2 years (thirty-nine 
months). Moreover, for the subset of cases in which the federal 
government prevailed, the median duration was just 1.5 years and 75% of 
the cases were resolved within three years (thirty-six months).\29\ The 
existing data therefore provide no basis for claims that NEPA 
litigation is unduly protracted.
---------------------------------------------------------------------------
    \28\ See Mark A. Fellows & Roger S. Haydock, Federal Court Special 
Masters: A Vital Resource in the Era of Complex Litigation, 31 Wm. 
Mitchell L. Rev. 1269, 1289 (2005) (finding that the average duration 
of a federal civil case from filing to trial increased from 19.5 to 
22.5 months between 1998 and 2003); Jessica Kier, Raising the Bar: How 
Will the New federal Rules of Civil Procedure Affect Your Required 
Level of Competency?, 39 J. Legal Prof. 103, 105 (2014) (reporting that 
the median duration for securities class-action lawsuits was three and 
a half years); Kathryn Moss et al., Prevalence and Outcomes of ADA 
Employment Discrimination Claims in the Federal Courts, 29 Mental & 
Physical Disability L. Rep. 303, 307 (2005) (``Between 1990 and 1998, 
the percentage of general federal civil rights cases resolved within 
two years increased from 82 percent to 88 percent . . .'').
    \29\ For cases in which the federal government wins, 50% of the 
cases are resolved within about 1.5 years; 75% resolved within three 
years; 90% of the cases are resolved within five years. For cases in 
which the plaintiff prevails on at least one claim, 50% of the cases 
are resolved within 2.5 years; 75% resolved within about 4.3 years; and 
90% of the cases are resolved within 6.2 years.
---------------------------------------------------------------------------
III. Conclusion
    Evidence about the implementation of NEPA and NEPA litigation 
negates the common criticisms of the statute. The vast majority of 
agencies' decisions that have the potential to significantly impact the 
environment require only perfunctory review under CEs or relatively 
streamlined reviews under EAs; in comparison, the number of EISs 
prepared is modest and has been gradually declining over the last 
decade.\30\ The number of cases filed under NEPA has remained 
relatively constant, with about 100 cases filed in district courts 
annually (about 35% of which settle) and roughly twenty-five appeals. 
Given that the number of federal actions potentially subject to NEPA is 
roughly 100,000 or so annually,\31\ litigation rates are exceedingly 
low; even among actions requiring EISs, which pose the greatest 
potential threats to the environment, on average just 20% are 
challenged.\32\
---------------------------------------------------------------------------
    \30\ See Bradley C. Karkkainen, Whither NEPA?, 12 N.Y.U. Envtl. 
L.J. 333, 348 (2004) (characterizing the number of federal actions each 
year that trigger EIS preparation duties ``a vanishingly small number 
given the scale and scope of federal operations'').
    \31\ Federal agencies annually conduct hundreds of EISs, tens of 
thousands of abbreviated environmental assessments, and hundreds of 
thousands of routine determinations that environmental impacts of a 
proposed action are insignificant. See NEPA Litigation: CEQ Reports, 
Council Envtl. Quality, https://ceq.doe.gov/ceq-reports/litigation.html 
(last visited Jan. 24, 2018).
    \32\ See J. Clarence Davies & Jan Mazurek, Pollution Control in the 
United States: Evaluating the System 163 (2014) (``The percentage of 
EISs challenged in court has remained relatively stable, . . . 
fluctuating between 15 and 20 percent of all EISs filed.'').
---------------------------------------------------------------------------
    These numbers represent national averages and refute claims that 
NEPA systemically causes chronic delays and promotes obstructionist 
litigation. The national statistics do, however, obscure the variable 
nature of NEPA litigation. For most federal agencies, a NEPA lawsuit is 
a rare event and claims that NEPA poses a significant burden to them 
have little basis in fact. A subset of federal land and natural 
resource management agencies accounts for three-quarters of the NEPA 
cases filed. Even for these agencies, though, the majority of the EISs 
they prepare are not the subject of litigation; the USFS is most likely 
to face NEPA litigation but only about 25% of EISs issued by the USFS 
are challenged. Similarly, for the FWS and NMFS, while the litigation 
rates are higher, the total number of EISs is low (averaging just eight 
and three EISs per year, respectively). Thus, in absolute terms, the 
burden from NEPA for either of these agencies is not likely to be 
significant.
    The low frequency and implied selectivity of NEPA litigation are 
reflected in the relative success of environmental plaintiffs. 
Environmental organizations prevailed at consistently higher rates than 
other plaintiffs filing NEPA actions, and their success in court was 
comparable to or substantially exceeded that of plaintiffs generally in 
administrative law challenges. By these benchmarks, the merits of NEPA 
challenges filed by environmental plaintiffs are inconsistent with 
claims that NEPA suits are routinely filed merely to hold up agency 
action and lack legitimate legal grounds. The high success rates of 
environmental plaintiffs, who prevailed in about 45% of their cases 
during the George W. Bush Administration, is further evidence 
countering the charge that environmentalists used NEPA for purely 
strategic objectives.
    In this letter, we have examined the available information on 
implementation of NEPA and litigation arising out of various agencies' 
NEPA compliance. The data refute critics' claims that a systemic crisis 
exists with respect to either NEPA implementation or litigation. 
Instead, they reveal that federal agencies in the vast majority of 
covered actions engage in streamlined environmental reviews relying on 
either a CE or EA, and that NEPA litigation is rare. In this light, we 
do not believe that there are grounds for claims that NEPA has been 
``weaponized'' or that environmental organizations are misusing the 
statute.

            Sincerely,

(All of the following are signatories in their personal capacity only. 
Institutional affiliations are included for identification purposes 
only.)

[The complete list of 119 signatories is part of the hearing record and 
has been retained in the Committee's official files.]

                                 ______
                                 

                                                     April 25, 2018

Hon. Rob Bishop, Chairman,
Hon. Raul Grijalva, Ranking Member,
House Committee on Natural Resources,
1324 Longworth House Office Building,
Washington, DC 20515.

    Dear Chairman Bishop and Ranking Member Grijalva:

    We appreciate the opportunity to provide written comments for the 
Committee's April 25, 2018 hearing titled ``The Weaponization of the 
National Environmental Policy Act and the Implications of Environmental 
Lawfare.'' On behalf of the undersigned organizations and our millions 
of members and supporters, please accept these comments for the 
hearing's official record.

    As an initial matter, we note that the title of the hearing 
indicates the majority's likely unwillingness to pursue consideration 
of the National Environmental Policy Act (NEPA) in a bipartisan manner 
or to even consider evidence contrary to predetermined conclusions. The 
National Environmental Policy Act (NEPA) is a law aimed at driving 
responsible decisions, informed by the best available evidence and the 
input of a diverse number of stakeholders. Unfortunately, the hearing 
title strikes an ironic note, suggesting that some members of the 
committee may aim to make significant changes to the law without full 
consideration of relevant facts or diverse voices.

    This evidence of open hostility to environmental review, government 
accountability, and public input under NEPA is manifest not only in the 
title of this hearing but also in legislative attacks from Congress. 
Over the last several years, hundreds of pieces of legislation have 
been introduced that would weaken NEPA or waive it entirely, but 
without any evidence of a problem with the law itself. The 115th 
Congress alone has been the source of over 60 such proposals that would 
waive NEPA via legislative categorical exclusions, limit the scope of 
environmental reviews to specifically ignore climate impacts, or even 
reduce government accountability to the public it serves by placing 
limitations on judicial review. The volume of these attacks evidences a 
disturbing ideological effort focused on eliminating, not improving, 
this law.

    All of these bills are based on the persistent but demonstrably 
false premise that NEPA and other regulations are the major cause of 
delay in infrastructure development and government decision-making. 
This theory has been comprehensively examined and thoroughly rebuffed 
by administrations of both parties through numerous studies, including 
ones conducted by the Congressional Research Service (CRS) and the U.S. 
Department of the Treasury. The CRS has repeatedly concluded that NEPA 
is not a primary or major cause of delay in project development. 
Rather, CRS identified causes entirely outside the NEPA process, such 
as lack of funding.\1\ In a report released in December of 2016, the 
Treasury Department similarly concluded that ``a lack of funds is by 
far the most common challenge to completing'' major transportation 
infrastructure projects.\2\
---------------------------------------------------------------------------
    \1\ Congressional Review Service (CRS), Accelerating Highway and 
Transit Project Delivery: Issues and Options for Congress (Aug. 3, 
2011), available at http: / / www.aashtojournal.org/Documents/
August2011/CRSinfrastructure.pdf.
    \2\ Toni Horst, et al., 40 Proposed U.S. Transportation and Water 
Infrastructure Projects of Major Economic Significance. AECOM, (2016). 
https: / / www.treasury.gov/connect/blog/Documents/final-
infrastructure-report.pdf (last accessed March 20, 2016).

    The often repeated and easily debunked allegation that NEPA is 
simply a tool for frivolous litigation, standing in the way of 
infrastructure development, or that it prevents management of public 
resources is an pernicious canard, threatening the foundation of 
---------------------------------------------------------------------------
informed, democratic decision-making by the federal government.

    NEPA is rightfully referred to as the ``Magna Carta'' of 
environmental laws. Like that famous charter, NEPA enshrines 
fundamental values into government decision-making which is why it has 
been imitated by 160 countries around the world, making it one of the 
most widely imitated U.S. laws. NEPA has been a proven bulwark against 
hasty or wasteful federal decisions by fostering government 
transparency and accountability. It has ensured that federal decisions 
guarantee meaningful public involvement. It has achieved its stated 
goal to improve the quality of the human environment by relying on 
sound science to reduce and mitigate harmful environmental impacts and 
on judicial accountability when those impacts are ignored.

    As to lawsuits, the White House Council on Environmental Quality 
(CEQ) has made available a litigation survey of cases filed under NEPA 
between the years 2001 and 2013. During that period, of the nearly 
50,000 actions subject to NEPA annually, only 0.2% had a case filed 
against the agency. Overwhelmingly, the clear majority of actions 
subject to NEPA go unchallenged.\3\ But the ability to challenge NEPA 
violations is essential to accountability.
---------------------------------------------------------------------------
    \3\ For example, the Forest Service--frequently an agency called 
before this Committee for testimony on this topic--recently disclosed 
that less than 4% of its land management decisions are challenged in 
court, and that the agency wins about 70% of such lawsuits. The agency 
itself has concluded that litigation is not a barrier to effective land 
management, but rather shortfalls in funding, staffing, and training 
result in delays in project development and implementation. See 
generally, https://vimeo.com/237902205.
---------------------------------------------------------------------------
    Citizen enforcement ensures that federal agencies comply with the 
law and fulfill their duty to disclose impacts and seek public input on 
how to improve decisions affecting local communities. Curtailing the 
ability of local and state governments, citizens, public interest 
groups, businesses and tribes to bring lawsuits against federal 
agencies for ignoring responsibilities under NEPA, is not in the public 
interest. Below are just a few examples of the importance of litigation 
under NEPA and how it has ensured the actual impacts of decisions are 
disclosed.

    Public Health--Sierra Club v. Strock, 495 F. Supp. 2d 1188, 37 ELR 
20188 (S.D. Fla. 2007)--At times, it is through litigation under NEPA 
that critical information that should have been disclosed to the public 
is revealed. For example, court proceedings in a case brought under 
NEPA revealed that the Army Corp of Engineers had permitted mining 
activities that resulted in benzene contamination to the Biscayne 
Aquifer, which supplies drinking water to Miami Dade County. As a 
result of this public health threat, costs of improving the drinking 
water plant were estimated to be up to $188 million dollars.

    Environmental Justice--St. Paul Branch of NAACP v. U.S. DOT, 764 F. 
Supp. 2d 1092 (D. Minn. 2011)--NEPA plays a critical role in ensuring 
that agencies consider the impacts of federal decisions on low-income 
communities and communities of color. In 1960, over 600 African-
American homes and dozens of businesses were bulldozed to make way for 
the I-94 freeway. When St. Paul released its plans to construct a light 
rail line connecting the city to downtown Minneapolis 50 years later, 
the National Association for the Advancement of Colored People (NAACP) 
filed suit against the U.S. Department of Transportation (DOT) and St 
Paul's Metropolitan Council for failing to analyze the short-term 
impacts of a light rail project on local businesses surrounding the 
proposed route and adjoining stations. The court concluded that DOT's 
final environmental impact statement (EIS) was deficient and did not 
consider the project's economic impacts on local businesses. 
Consequently, DOT was compelled to produce a supplemental EIS and used 
the NEPA process to engage with the local community at a series of town 
hall meetings designed to consider alternatives to mitigate the effects 
of construction on local small businesses. As a result, Metropolitan 
Council, City of St. Paul, City of Minneapolis, Metro Transit (the 
regional transit authority), and the contractor committed nearly $15 
million to help small, local businesses in the corridor cope with the 
impacts of construction.

    Climate Change--Western Organization of Resource Councils, et al. 
v. BLM, 2018 WL 1475470, at *1 (D. Mont. Mar. 26, 2018). NEPA is a 
money saving and safety tool that ensures the federal government 
assesses both the impacts of federal decisions on climate change as 
well as the impacts of climate change on federal projects. Just last 
month, on March 26, 2018, a federal district judge ruled that the 
Bureau of Land Management (BLM) violated the law when it made 80 
billion tons of coal available for leasing and opened-up more than 8 
million acres for oil and gas development in the Powder River Basin 
without first assessing the environmental risks or considering any 
alternatives under NEPA. The court agreed that the BLM was in violation 
of NEPA when it refused to consider alternatives that would reduce the 
amount of coal available. The BLM also failed to use best available 
science or adequately analyze the impacts of burning coal, oil and gas, 
and of methane emissions. This decision under NEPA demonstrates the 
critical role the law plays in preparing the U.S. for the fundamental 
environmental challenge of the 21st century, climate change.

    These are just a small sample of the countless ways NEPA litigation 
helps to protect communities, economies, taxpayers and the environment.
    Thank you for the opportunity to comment on today's hearing. Our 
organizations welcome a reasoned discussion aimed at improving and 
strengthening this important tool of public accountability to increase 
transparency, better facilitate public input, improve project funding, 
and reduce the environmental and social impacts of government 
decisions. We're hopeful that we can all agree that NEPA provides an 
ongoing opportunity to improve decision-making in the public interest 
and that we can move forward with the same bipartisan, fact-based 
discussions that led Congress to overwhelmingly pass NEPA into law 
fifty years ago.

            Sincerely,

        American Bird Conservancy     Hip Hop Caucus

        American Rivers               Information Network for 
                                      Responsible Mining

        Bold Alliance                 Klamath Siskiyou Wildlands Center

        Center for Biological 
        Diversity                     The Lands Council

        Citizens Against LNG          Los Padres ForestWatch

        Center for Food Safety        National Parks Conservation 
                                      Assoc.

        Citizens for Renewables       Natural Resources Defense Council

        Citizens for Renewables       Oregon Physicians for Social 
                                      Responsibility

        Clean Water Action            Rogue Climate

        Defenders of Wildlife         Rogue Riverkeeper

        Earthjustice                  San Juan Citizens Alliance

        Earthworks                    Southern Environmental Law Center

        Endangered Species 
        Coalition                     WE ACT for Environmental Justice

        Friends of the Earth          Western Environmental Law Center

        Friends of the Sonoran 
        Desert                        Western Watersheds Project

        GreenLatinos                  The Wilderness Society

                                 ______
                                 

      Labor Council for Latin American Advancement,
                                             Washington, DC

                                                     March 13, 2018

    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

        Eddie Rosario,                Carlos Pelayo,
        LCLAA New York City Chapter 
        President                     LCLAA San Diego/Imperial Counties 
                                      Chapter President

        Desiree Rojas,                Casildo Cuevas,
        LCLAA Sacramento Chapter 
        President                     LCLAA Aurora Chapter Member

        Jose Alcala,                  David Diaz,
        LCLAA Chicago Chapter         LCLAA South Florida Vice 
                                      President

        Victor Sanchez,               Rose Mary Klein,
        LCLAA Central Florida 
        Chapter President             LCLAA Oakland County Chapter
        Maria Starr-Van Core,         Faviola Armendariz,
        LCLAA Greater Lansing Area 
        Chapter President             LCLAA Denver Area Chapter Member

        Jose Rosado,                  Erica Puentes,
        LCLAA Puget Sound Chapter 
        President                     LCLAA DC, MD & V A Chapter Member

        Maryann Galicia,              Lyris Medrano,
        LCLAA Milwaukee Chapter 
        Vice President                LCLAA Milwaukee Chapter Member

        Lenka Mendoza,                Emma Grayeb,
        LCLAA DC, MD & VA Chapter 
        Member                        LCLAA DC, MD & VA Chapter Member

        Jessica Tamayo,
        LCLAA DC, MD & VA Chapter 
        Member

                                 ______
                                 

                             Moving Forward Network

                                                     April 24, 2018

Hon. Raul Grijalva,
U.S. House of Representatives,
Washington, DC 20515.

    Dear Congressman Grijalva,

    Thank you for the opportunity to provide comments on the importance 
of preserving the National Environmental Policy Act. These comments are 
submitted on behalf of the Moving Forward Network.

    The Moving Forward Network is a national coalition of over 50 
member organizations including community-based groups, environmental 
Justice advocates, national environmental organizations, and academic 
institutions, in over 20 major U.S. cities. We represent over two 
million members, and are committed to advancing environmental and 
climate justice.

    For decades, environmental justice communities have relied on 
policies such as the National Environmental Policy Act (NEPA) to 
protect the environment, health, and their communities. NEPA has 
provided critical tools for local communities to address environmental 
health impacts from proposed projects in communities. For environmental 
justice communities, the rollback of this important policy would 
eliminate protections and tools needed to address the deadly impacts of 
air pollution, climate change, and unsustainable developments in their 
communities.

    NEPA sets federal standards for environmental review and community 
engagement and informed decision-making. Passed by an overwhelming 
bipartisan majority and signed into law in 1970, NEPA has empowered the 
public and demanded government accountability for more than 40 years. 
NEPA is democratic at its core. NEPA provides communities with an 
opportunity to learn about the actions federal agencies are proposing, 
while also offering agencies an opportunity to receive valuable input 
from the public. Informed public engagement often produces ideas, 
information, and even solutions that the government might otherwise 
overlook. NEPA leads to better decisions--and better outcomes--for 
everyone. The NEPA process has saved money, time, lives, historical 
sites, endangered species, and public lands while encouraging 
compromise and cultivating better projects with more public support. 
Environmental justice communities rely on NEPA to ensure community 
input into decision-making about projects. Without NEPA, these 
communities lose authority and opportunity to engage in the decision 
making over projects that directly impact their lives.

    On behalf of the Moving Forward Network, we urge you and your 
colleagues to protect people, protect the environment and protect NEPA 
in its entirety.

            Sincerely,

                                              Angelo Logan,
                                                 Campaign Director.

                                 ______
                                 

           National Parks Conservation Association,
                                             Washington, DC

                                                     April 24, 2018

    Dear Representative:

    Since 1919, National Parks Conservation Association (NPCA) has been 
the leading voice of the American people in protecting and enhancing 
our National Park System. On behalf of our more than 1.3 million 
members and supporters nationwide, I write in support of the National 
Environmental Policy Act (NEPA), an essential law guiding responsible 
development and public engagement in our nation's project planning. We 
hope you will consider our views as you discuss NEPA during the 
Wednesday, April 25th hearing in the House Natural Resources Committee.
    The National Park System is no stranger to the need for 
infrastructure repairs and speedy project permitting and approval. Both 
parties recognize that there isn't a single community in the country 
that isn't struggling with decaying roads, bridges, water systems, 
schools and more. National parks are a microcosm of this larger 
national need. Unfortunately, NEPA has been caught undeservingly in the 
crossfire in the debate on infrastructure development. Many proposals 
in Congress and from the administration support project development at 
the expense of project analysis and public involvement, while 
undermining bedrock environmental laws such as the NEPA, Clean Water 
Act and Clean Air Act, under the mistaken belief that they are the 
source of project delays. In reality, infrastructure needs, both 
current and future, are resources starved, not burdened by 
environmental review.
    Furthermore, NEPA ensures communities are informed about 
significant health and environmental impacts from any proposed federal 
development project, requires that federal agencies measure the 
environmental impacts of any proposed actions, and allows the public to 
comment on these plans. Successful uses of NEPA have resulted in sound 
restoration and mitigation of potential impacts to our national parks, 
public lands and the plants and animals that call these places home.
    At noted above, in an attempt to modify the law, the 115th Congress 
has introduced over 60 pieces of legislation that would minimize the 
involvement of stakeholders, federal agencies and the public at the 
expense of nature, wildlife and community health. We're concerned that 
many of these efforts are solutions in search of a problem with NEPA. 
Some of these bills would accelerate development and waive NEPA via 
legislative categorical exclusions and reduce government accountability 
to the public through limiting judicial review, all in the name of 
expediency--even though the facts demonstrate that permitting isn't the 
primary hurdle to project execution.
    We agree that there may be ways to modernize NEPA, but we encourage 
you to only do so to foster better public input, improve transparency 
and ensure taxpayer dollars are spent on robust decisions that protect 
our environment, public lands and public health.
    Finally, we understand that the committee may have concerns with 
issues at Point Reyes National Seashore, as raised by Dr. Laura Alice 
Watt in her testimony submitted to the committee. NPCA, along with 
other conservation organizations, is proud to be working directly with 
ranchers within the Seashore to promote exchanges amongst diverse 
stakeholders and help produce a plan through the NEPA process that 
builds resiliency for environmentally sustainable ranching, recreation, 
wildlife and other resources in this park that attracts more than 2 
million visitors each year. Regarding the aforementioned testimony 
submitted by Dr. Watt, who is part of a secretive organization called 
``Resilient Agriculture Group,'' we are concerned it lacks credibility 
on this topic and contains factual inaccuracies. Importantly, Dr. Watt 
is not a rancher at the Seashore and does not speak for or represent 
the ranchers. In fact, ranchers within the Seashore have concerns that 
the efforts of Dr. Watt and Resilient Ag Group are unproductive and do 
not match the reality on the ground (see attached Letters to the Editor 
in the Point Reyes Light).
    These letters not only undermine Dr. Watt's arguments, they 
demonstrate that ranchers leasing land from the Seashore support NEPA 
and the National Park Service. Noteworthy are their comments, such as, 
``We are proud to be a part of this [NEPA] process and trust our park 
service to understand not only the cultural and historical significance 
of ranching in the park, but also how our activities contribute 
ecological management services and enhanced ecosystems for our varied 
wildlife''; and ``We understand the value and importance of this 
planning process, and have positive and mutually respectful relations 
with National Park Service staff. We expect to work constructively with 
N.P.S. throughout the current planning process and beyond.. . . The 
process can build mutual trust and consensus with different 
stakeholders and increase public confidence in the management of the 
seashore.''
    We will continue to work with local communities on these issues and 
ensure that both ranching families in the Seashore and NPS are able to 
support their respective missions. Please let us know if you have 
questions about the work at the Seashore.
    Thank you for considering our views. For further information, 
please feel free to contact me at (202) 454-3391 or [email protected].

            Sincerely,

                                             Ani Kame'enui,
                                  Director of Legislation & Policy.

                                 *****

                   Point Reyes Light 4/12/18 Letters

Working with the park
    As ranchers in the Point Reyes National Seashore whose lives will 
be deeply affected by the ongoing general management plan amendment, we 
feel the need to step out of our comfort zone and make our views on the 
planning process clear. It is too important of a topic for us to remain 
silent. We want it to be known that we are in alignment with David 
Evans and Claire Herminjard's comments they made in a letter to the 
Light last week.
    We understand the value and importance of this planning process, 
and have positive and mutually respectful relations with National Park 
Service staff. We expect to work constructively with N.P.S. throughout 
the current planning process and beyond. We are actively engaged in the 
G.M.P.A. planning process and believe that through this work we can 
find solutions to various concerns affecting different stakeholders. 
Some topics at hand are complex and require the thoughtful approach 
established by the public planning process before us. The process can 
build mutual trust and consensus with different stakeholders and 
increase public confidence in the management of the seashore.
    We believe promoting exchanges between environmentalists, ranchers 
and the N.P.S. will lead to a better understanding of the issues around 
ranching and the environment in the seashore--resulting in a G.M.P.A. 
that will help the seashore become a model for productive agriculture 
on public lands throughout the United States, a long-term benefit for 
all.

                                              Bill and Nicolette Niman;
                                                  Bob and Ruth McClure;
                                                 Dan and Dolores Evans;
                                                        Julie Rossotti;
                                                           Betty Nunes;
                                                         Bob Giacomini;
                                            and Tim, Tom and Mike Kehoe
                                          Point Reyes National Seashore

                                  ***

A moderate rancher voice
    As current ranchers and leaseholders in the Point Reyes National 
Seashore, we feel the need to express our desire for a peaceful 
planning process that embraces cooperation with the National Park 
Service, our local environmental groups and the greater public with the 
goal of seeing a General Management Plan update that provides for 
optimal public use of our national park as well as long-term leases for 
the ranching families who steward these lands. We are proud to be a 
part of this process and trust our park service to understand not only 
the cultural and historical significance of ranching in the park, but 
also how our activities contribute ecological management services and 
enhanced ecosystems for our varied wildlife.
    We also feel the strong need to express our concern over recent 
activities by the newly formed Resilient Agriculture Group. We 
understand that these may be well-intentioned citizens and fellow 
ranchers and we appreciate their support of ranching in the seashore. 
That said, we are deeply concerned by their methods for expressing 
their support and believe their contentious actions are wholly counter-
productive to completing the management plan update and securing long-
term leases for ranchers.
    Additionally, it is critical for us to note that often in the 
media, the Point Reyes ranchers are lumped together as having one 
viewpoint. This is simply not the case, and a rather narrow scope of 
reporting. We, among several of our ranching peers, are not supportive 
of antagonistic tactics, such as those used by RAG, but rather trust in 
the park service process. We are also highly concerned that the Point 
Reyes Seashore Ranchers Association tends to have one voice in the 
media--that of Kevin Lunny. While we respect Mr. Lunny's right to his 
views, neither he nor the ranchers association speak for all ranchers.
    We are here to say that we hope the voice of the moderate rancher 
rings true through this process and that the park service, the general 
public and our community does not let the cry of conflict be the only 
echo in the chamber. To emphasize, we, as a ranching family on Point 
Reyes, support the park in their efforts to complete a fair and 
comprehensive general management plan update and look forward to 
proactively participating in any way we can in that due process.

                                      David Evans and Claire Herminjard
                                          Point Reyes National Seashore

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S 
                            OFFICIAL FILES]

Rep. Westerman Submission

    --Article submitted for the record: Chadwick Dearing 
            Oliver, Nedal T. Nassar, Bruce R. Lippke & James B 
            McCarter (2014) Carbon, Fossil Fuel, and 
            Biodiversity Mitigation with Wood and Forests, 
            Journal of Sustainable Forestry, 33:3, 248-275, 
            DOI: 10.1080/10549811.2013.839386.