[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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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.