[Congressional Record (Bound Edition), Volume 148 (2002), Part 17]
[Extensions of Remarks]
[Pages 23547-23549]
[From the U.S. Government Publishing Office, www.gpo.gov]




             NATIONAL JOURNAL STORY, ``BUSH'S QUIET PLAN''

                                 ______
                                 

                          HON. BETTY McCOLLUM

                              of minnesota

                    in the house of representatives

                       Friday, November 22, 2002

  Ms. McCOLLUM. Mr. Speaker, I would like to submit the following 
National Journey story, ``Bush's Quiet Plan,'' for the Record. It 
clearly describes how this administration is rolling back our key 
environmental protections.

               [From the National Journal, Nov. 23, 2002]

                           Bush's Quiet Plan

                           (By Margaret Kriz)

       The Bush administration is quietly but systematically 
     working to make the 32-year-old environmental law that's 
     considered the Magna Carta of national environmental policy 
     less of an impediment to development. Environmentalists 
     charge that, by routinely bypassing or greatly speeding up 
     the preparation of environmental impact statements required 
     under the National Environmental Policy Act, the Bush White 
     House is chipping away at the very foundation of the Nation's 
     environmental protections.
       President Bush has taken steps aimed at expediting or even 
     eliminating the environmental impact studies that federal 
     regulators have long been required to conduct before any 
     major development project--whether it involves a new dam by 
     the Army Corps of Engineers or logging in a national forest--
     can be undertaken on federal property or with federal funds. 
     Industry lobbyists applaud the administration's actions 
     because, in their view, environmental impact statements have 
     largely served as a weapon for anti-development zealots to 
     wield in court.
       Environmentalists contend that the administration's efforts 
     to shorten the reach of the law known as NEPA are part of a 
     continuing campaign to put resource development and business 
     interests ahead of resource protection and environmental 
     quality. ``The Bush administration views NEPA as an obstacle, 
     not a tool,'' says Sharon Buccino, a senior attorney at the 
     Natural Resources Defense Council. ``To the extent that 
     they're removing these activities, like logging projects, 
     from the NEPA process, they're cutting the public out of the 
     process.''
       NEPA is merely a full-disclosure statute: It forces 
     regulators to make assessments and share them with the 
     public, but it doesn't block projects that would harm the 
     environment. Yet environmental groups have often been able to 
     use the government's NEPA-mandated environmental impact 
     statements in conjunction with the other environmental laws, 
     such as the Endangered Species Act or the Clean Air Act, to 
     persuade courts to stop or significantly modify controversial 
     projects.
       Under NEPA, all government agencies--from the Interior 
     Department to the Navy to the Small Business Administration--
     must study the environmental implications of major projects 
     before undertaking them. Private companies that receive 
     federal funds or use federal lands also fall under NEPA's 
     umbrella.
       Business lobbyists cheer Bush for using his broad 
     administrative authority to limit the public's ability to 
     challenge industry projects on federal lands. Supporters of 
     the administration's approach argue that environmentalists 
     have abused NEPA by filing thousands of essentially nuisance 
     lawsuits that stem from a philosophical objection to, say, 
     drilling for oil on federal land, rather than from objections 
     to the potential consequences of a specific drilling 
     proposal.
       ``A lot of challenges being raised are part of a larger 
     strategy to oppose energy development in this country,'' 
     contends Lee Fuller, vice president for government relations 
     at the Independent Petroleum Association of America.
       NEPA's defenders charge that regulators are already 
     producing slipshod impact assessments in their rush to comply 
     with Bush administration demands for faster action. ``Asking 
     them to do [the assessments] more quickly raises more 
     opportunity for litigation,'' because careless work would 
     leave the government open to charges of not having complied 
     with NEPA, warns Jonathan Adler, an environmental law 
     professor at Case Western Reserve University.
       The controversy over the accelerating attempts to rein in 
     NEPA centers on several administration actions:
       A Forest Service proposal--leaked by environmentalists and 
     slated to be formally released later this year--would allow 
     federal regulators to rewrite National Forest Management 
     Plans without first assessing the environmental implications 
     of the new plans. Forest plans are the blueprints for 
     commercial development, recreation, and land preservation on 
     the nation's 191 million acres of national forests and 
     grasslands.
       Bush's wildfire proposal, dubbed the ``Healthy Forests 
     Initiative,'' would exempt 10 million acres of national 
     forest lands from NEPA to speed up the logging aimed at 
     thinning the trees in those forests. The plan was drafted in 
     response to this summer's catastrophic forest fires and would 
     allow commercial logging companies to remove some large, 
     healthy trees as an incentive to participate in the thinning 
     projects. The Democratic-controlled Senate blocked Bush's 
     proposal, but the plan is certain to be resurrected after the 
     Republicans take control of the chamber in January.
       The administration tried to exempt most U.S.-controlled 
     ocean waters from NEPA. But in October, a federal court 
     rejected the Justice Department's contention that the 
     environmental law's reach did not extend beyond this 
     country's territorial waters, which end three miles offshore. 
     The court ruled that NEPA applies within the nation's entire 
     Exclusive Economic Zone, which extends 200 nautical miles 
     offshore. That case was triggered by objections to Navy sonar 
     tests, which environmentalists claim have caused whale 
     beachings and permanent damage to whales and other sea 
     mammals.
       In September, Bush issued an executive order requiring 
     federal regulators to speed up environmental assessments of 
     transportation construction projects. Transportation 
     Department officials say the administration is also 
     considering legislation to amend the law's application to 
     highway and other transportation projects. The administration 
     has not taken a position, however, on a bill

[[Page 23548]]

     introduced this year by House Transportation and 
     Infrastructure Committee Chairman Don Young, R-Alaska, that 
     would create a separate, less rigorous environmental-
     assessment process for transportation projects.
       In May, Bush ordered expedited environmental reviews of 
     energy-development projects. Meanwhile, Sen. Ben Nighthorse 
     Campbell, R-Colo., has urged that NEPA requirements be waived 
     for energy development on tribal lands.
       According to Forest Service officials, the administration 
     plans to greatly expand the ``categorical exclusion'' 
     provisions of NEPA to exempt certain kinds of logging 
     projects--the logging of dead trees in burned forests, for 
     example--from environmental impact statements. These 
     exemptions would apply to far more than the 10 million acres 
     included in Bush's forest fire proposal.
       Meanwhile, the White House Council on Environmental 
     Quality, which has jurisdiction over NEPA, has created an 
     interagency task force focused on updating the NEPA process. 
     James Connaughton, who heads the council, said the task force 
     seeks to ``modernize'' the way federal regulators conduct 
     their environmental reviews--by, for example, increasing the 
     use of computers. Some departments, he said, ``are using the 
     Pony Express when we could be using the electron to 
     facilitate all kinds of interagency and external 
     communications.''
       Environmentalists are suspicious of the task force. ``This 
     administration,'' Buccino says, took ``significant 
     destructive actions related to NEPA before they had even 
     begun the task force.'' Bush's critics contend that what the 
     White House portrays as mere streamlining is actually part of 
     a far-reaching campaign to grant polluters and developers 
     relief from environmental safeguards by doing such things as 
     easing restrictions on coal-fired power plants and scuttling 
     a Clinton-era rule that preserves roadless regions in the 
     national forests. ``They're saying, `Trust us,' but we have 
     no reason to trust them,'' says David Alberswerth, director 
     of the Wilderness Society's Bureau of Land Management 
     program.
       Connaughton angrily denies that the administration wants to 
     gut environmental protections and says the environmentalists' 
     accusations are politically motivated. ``I think that there 
     is a lot of chasing after ghosts,'' he says. (For a Q&A with 
     Connaughton, see p. 3476.)


                         Overdue or Overboard?

       The Bush administration's aggressive efforts to limit 
     NEPA's role represent a marked change in federal 
     environmental policy--and in some quarters, a welcome one. 
     ``It represents a shift in the institutional perspective on 
     NEPA,'' says Chris Horner, senior fellow at the Competitive 
     Enterprise Institute, a conservative think tank. ``They're 
     saying that the statutory sprawl that NEPA has created is not 
     acceptable. [The shift] is something that's long overdue.''
       But environmentalists are alarmed. Unlike the Endangered 
     Species Act and the Clean Air Act, which deal only with 
     certain environmental issues, NEPA is a comprehensive tool 
     that activists can use to force regulators--and, by 
     extension, industry--to abide by a multitude of environmental 
     laws.
       ``NEPA is a procedural statute that cuts across every 
     environmental program,'' says William J. Snape III, chief 
     counsel at Defenders of Wildlife. ``So rather than announce 
     that they're going to gut NEPA, the administration has 
     decided that they're just going to do it on an individual-
     sector basis. That makes it difficult for us to piece [the 
     administration's actions] all together.''
       Most environmental assessments are completed without a 
     hitch. But projects that compete for space with wildlife and 
     wilderness areas--logging, energy development, and military 
     action on federal lands or waterways, as well as 
     transportation construction projects--often rise red flags 
     with environmental activists and nearby residents. Lengthy 
     lawsuits often ensue.
       Bush administration officials insist that they're not out 
     to stop all environmental analyses or to propose a wholesale 
     rewrite of the law. According to Connaughton, the aim is to 
     speed up the environmental-assessment process and focus on 
     the biggest projects. The administration also wants to stem 
     the flood of legal challenges to what government officials 
     want to do on federal lands.
       ``There's just too many lawsuits, just endless 
     litigation,'' Bush told an Oregon audience in August in 
     introducing his forest fire plan. ``We want to make sure our 
     citizens have the right to the courthouse. . . . But there's 
     a fine balance between people expressing [themselves] and 
     their opinions and using litigation to keep the United States 
     of America from enacting commonsense forest policy.''
       Since its inception, NEPA has been largely defined by court 
     rulings that give it teeth. NEPA was passed during the Nixon 
     administration but floundered until President Carter's 
     Council on Environmental Quality outlined a regulatory 
     strategy for systematically complying with its mandates. 
     Since then, each agency has developed its own NEPA rules 
     designed to mesh with the laws the agency implements.
       Until those ground rules were established--and even since 
     then--judges often were the government officials who 
     determined what a NEPA requirement meant in a given 
     situation. ``Court decisions were pouring out,'' recalls 
     James Gustave Speth, who headed the Council on Environmental 
     Quality under President Carter and now is dean of the Yale 
     School of Forestry and Environmental Studies. ``It was the 
     first major federal environmental legislation. And it became 
     extraordinarily powerful, primarily because of the courts.''
       Environmentalists, who filed many of those lawsuits, see 
     NEPA as one of the best ways to force recalcitrant 
     bureaucrats to weight--and disclose--the environmental 
     consequences of their proposals.``The whole purpose of the 
     law was to slow down the government juggernaut and to make 
     public officials think long and hard before they take any 
     action that could be harmful to the environment,'' notes John 
     Echeverria, executive director of the Georgetown 
     Environmental Policy Project. ``There's no question that 
     environmentalists have used NEPA to block projects that they 
     thought were ill-advised and particularly harmful.''
       Conservatives and industry lobbyists, for their part, say 
     NEPA causes delays that inflate the price tag of important 
     business and government initiatives. The Transportation 
     Department, for example, estimates that environmental impact 
     statements for major highway projects take an average of four 
     to five years to complete.
       ``Sometimes you feel a little bit like that small rodent in 
     a maze, trying to complete all these reviews,'' complains 
     Mary E. Peters, administrator of the Transportation 
     Department's Federal Highway Administration.
       But many observers insist that NEPA's foes vastly overstate 
     the influence of NEPA reviews. ``The great bulk of NEPA 
     projects are changed in the NEPA process, but they're not, in 
     the end, stopped,'' says Yale's Speth.
       Environmentalists are not the only cause of delay. 
     Government regulators often lack funding to undertake NEPA 
     reviews quickly. The petroleum group's Fuller says that some 
     oil companies, eager to begin work on new projects, have 
     begun paying the government agencies to complete the required 
     environmental assessments. ``We've found that in order to get 
     our permitting processes moving, the only way to do that is 
     to provide private money,'' he explains. Federal officials 
     still control the studies, he adds.
       The environmental reviews are also hampered by bureaucratic 
     resistance. Even after 32 years, some regulators still oppose 
     having to consider the environmental implications of a 
     project early in the planning stages, according to law 
     professor Adler. ``At a lot of agencies, their decision-
     making process does not incorporate the sorts of factors that 
     NEPA asks them to look at,'' he says. ``That's one of the 
     reasons why agencies get into trouble with lawsuits.''


                     Thumper Trucks and Snowmobiles

       In April, an internal review board at the Interior 
     Department issued a scathing judgment criticizing the Bureau 
     of Land Management for approving coal-bed methane extraction 
     projects in Wyoming's Powder River Basin. Interior's Board of 
     Land Appeals ruled that the environmental yardstick that 
     regulators used to assess the projects was woefully 
     inadequate and failed to consider the ``unique potential 
     impacts'' of the proposed extraction process.
       Coal-bed methane extraction, first tested in the 1990s, 
     involves draining salty water from coal seams to tap the 
     methane gas trapped in the coal. The tainted liquid often 
     pours onto nearby lands. But the bureau had approved the 
     methane leases based on studies that looked solely at the 
     environmental effects of entirely different projects--oil and 
     natural gas drilling in the region.
       In a separate case, a federal judge recently suspended a 
     seismic exploration project near Arches National Park at the 
     urging of two environmental groups. The organizations charge 
     that the government failed to examine the environmental 
     impact that the heavy pounding of 30-ton ``thumper trucks'' 
     would have if energy companies were allowed to use them in 
     searching for oil deposits.
       Environmentalists argue that regulators are doing slap-dash 
     environmental analyses on these and other energy projects in 
     response to increased administration pressure to open more 
     federal lands to mining and drilling. ``This administration 
     is indicating that every square acre of land in the West 
     ought to be open to oil and gas'' says Snape of Defenders of 
     Wildlife. ``They don't care about environmental quality or 
     the public. This is `Energy uber alles.' ''
       But perhaps the most dramatic NEPA developments are 
     occurring at the Forest Service, where Bush administration 
     officials are rewriting the rules for managing the nation's 
     153 national forests. In the past, developing a forest 
     management plan, which spells out how a forest can be used, 
     was considered to be a ``major action'' that required 
     extensive environmental impact analysis under NEPA. Now Bush 
     officials are working on a proposal that would give forest 
     supervisors greater leeway to revise forest plans without 
     having to conduct in-depth environmental studies.
       Under the revised rules, full environmental reviews would 
     continue to be required when

[[Page 23549]]

     industry groups sought permission to begin specific projects, 
     such as logging or construction of new recreation facilities. 
     But more general changes to the forest management plan might 
     not require extensive study, according to Mark Rey, the 
     Agriculture Department under-secretary for natural resources 
     and environment who has authority over the Forest Service. 
     ``In the past, we were dealing with the first generation of a 
     forest plan, and there was no question that an environmental 
     impact statement was going to be required,'' he said. ``What 
     we're saying now is, it is not as clear that revising plans 
     or amending them involves a need for a similar level of 
     analysis, depending on the circumstances.''
       Rey cites the example of a forest supervisor considering 
     changing a forest plan to allow more snowmobiles to be used 
     in a forest. ``If we're saying that we might accommodate a 
     greater degree of snowmobile use but that we don't have 
     enough information right now to decide where we're going to 
     locate the trails, then we probably would acknowledge that 
     this issue is under consideration,'' he said. ``But we'd do 
     an environmental impact statement when we're ready to lay out 
     the trails.''
       Logging industry officials enthusiastically support the new 
     approach, arguing that it makes more sense for regulators to 
     focus their NEPA resources on industry development projects 
     than on forest management plans. ``Why would you do a full-
     blown analysis of how you're going to basically zone a forest 
     and manage it, when the real rubber hits the road when you 
     propose an action,'' said Chris West, vice president of the 
     timber industry's American Forest Resource Council in 
     Portland, Ore. But environmentalists say that Rey's proposals 
     are purposely vague and confusing. They accuse him of 
     attempting to create loopholes to allow forest supervisors to 
     make sweeping changes in the way the forests would be used 
     without gaining public input or examining the environmental 
     consequences.
       The Forest Service is also considering new proposals that 
     would make it easier to approve some logging projects without 
     having to assess the environmental impact of each project. 
     Agency staffers are working on ``categorical exclusions'' 
     that would pave the way for quicker approval of forest-
     thinning projects and logging of dead and dying trees after 
     forest fires. Those exclusions are similar to the president's 
     forest proposal, which would exempt some national forest 
     lands from NEPA. Environmentalists say they'll fight those 
     changes.


                         The Long Hand of NEPA

       Bush officials are more than happy to share their anecdotes 
     about NEPA reviews gone haywire. They point to the case of 
     the little town of Stillwater, Minn., 13 miles east of St. 
     Paul, which has spent 30 years trying to build a four-lane 
     bridge over the St. Croix River.
       Bridge proponents say the new structure is needed to 
     replace a 70-year-old lift bridge, which is on National 
     Register of Historic Places. City officials and local 
     developers say they hope a new bridge would divert truck 
     traffic away from historic downtown Stillwater and increase 
     development in communities on both sides of the bridge.
       ``The mayor of Stillwater told me recently that sometimes 
     you can't see the historic town for the semis lined up to go 
     across the bridge,'' says Peters of the Transportation 
     Department.
       But the $135 million project is opposed by environmental 
     groups, who say the new bridge would damage wetlands and mar 
     the bluffs that line the St. Croix River, which is a ``wild 
     and scenic river'' protected by federal law. 
     Environmentalists also assert that the project would 
     accelerate urban sprawl from the Twin Cities area into 
     western Wisconsin. Some of these concerns are shared by the 
     National Park Service, which has jurisdiction over wild and 
     scenic rivers.
       Over the years, several environmental analyses of the 
     proposed bridge have been completed, but no consensus about 
     its impact has been reached. The Transportation Department is 
     trying to break the deadlock by including the Stillwater 
     Bridge project on its list of seven high-priority 
     construction projects set for quick environmental review 
     under the president's September executive order. The 
     department plans to add more projects to its priority list in 
     December.
       Conservatives charge that the long hand of NEPA is 
     increasingly reaching into unlikely government programs. 
     Horner of the Competitive Enterprise Institute cites a recent 
     lawsuit in which environmental groups and the city of 
     Boulder, Colo., claimed that the Export-Import Bank of the 
     United States and the Overseas Private Investment Corp. 
     violated NEPA when they gave developing countries more than 
     $32 billion for oil fields, pipelines, and coal-fired plants 
     without first assessing the projects' contribution to global 
     warming. Horner argues that as a result of the lawsuit, 
     agencies could soon be pressured to consider global warming 
     in their NEPA reviews. ``You're talking about a tremendous 
     new regulatory burden, which is going to cost you more time 
     and money,'' he says.
       Industry lobbyists see such delays and expanded use of NEPA 
     as reason to dramatically scale back the environmental impact 
     assessment process or eliminate it altogether. One industry 
     group boldly suggested amending the law to bar national 
     environmental groups from filing NEPA lawsuits.
       In recent comments to the White House task force on NEPA, 
     the Idaho Cattle Association recommended that NEPA lawsuits 
     be limited to ``individuals who have an economic stake in the 
     outcome of a NEPA decision or those who are directly 
     affected'' by the project being reviewed. Connaughton of the 
     Council on Environmental Quality says he disagrees with that 
     proposal but understands the frustration of industry groups. 
     ``The procedural requirements of the law should not be 
     deployed to wreak havoc,'' he argues.
       But what the White House and industry see as abuse of the 
     system, environmental activists see as their fundamental 
     right to ensure that taxpayer dollars are not spent on 
     projects that harm the air, water, wildlife, or wilderness. 
     NEPA supporters say they fear that the environmental goals 
     that NEPA was created to advance could be lost in the rush to 
     speed up or eliminate environmental assessments and to 
     restrict the public's ability to challenge their conclusions. 
     As the Wilderness Society's Alberswerth puts it, ``If you 
     don't have judicial review, you have no guarantee that the 
     [Bureau of Land Management] or any other agency will comply 
     with the laws.''

     

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