Volume 5, Number 40 - December 29, 2005
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NEPA revisions proposed
Although federal regulations state that environmental impact statements "shall normally be less that 150 pages and for proposal of unusual scope or complexity, shall normally be less than 300 pages," in 2000, the average final EIS was 742 pages. These huge volumes may contain lots of data, but commonly lack any real meaning. That's why there is a congressional task force examining the National Environmental Policy Act and considering the potential to revise the law to make it better.
NEPA is the law enacted by Congress in 1970 to provide a framework for environmental planning and decision-making by federal agencies. It's the law that mandates a hard look at a proposed action, in the form of environmental reviews that consider the potential impacts of the proposal.
Since enacted, NEPA has often been the baseline of litigation challenging proposed actions, leading the task force to question if actions today are far from the act's original intent. For example, environmental groups sued the Departments of Housing and Urban Development, Veteran's Affairs and the Small Business Administration, suggesting that their loan programs did not have adequate NEPA analysis. As noted in the task force report, if this is the intent of NEPA, "where will it end?"
Through its public hearing process conducted to gather testimony about NEPA, the task force also learned that while litigation is one issue, the threat of litigation has also had a profound effect on the manner in which federal agencies move through the planning process. The task force was presented with numerous examples and reasons that "delay" has become synonymous with the NEPA process.
Although agencies may "reopen" the NEPA process to prepare supplemental EISs, there is no consistent application of this process. Another problem with NEPA is its mandate to examine "reasonable alternatives." It sounds simple enough, but there is debate about which alternatives actually meet the test of being reasonable."
The task force learned that some citizen groups don't believe that delays during the NEPA process are a legitimate issue, maintaining that "however long is needed to make an environmentally sound decision is time well spent." But the task force pointed out, "It should be noted that, unlike an applicant or community that is advocating for a particular project, these groups typically do not incur any costs or bear any consequences connected to the length of the NEPA process."
The cost of preparing documents to comply with NEPA has skyrocketed. In the 1980s, the cost for an EIS for a mine was about $250,000-300,000, but in 2005, the same EIS would cost $7-8 million, the task force reported. These costs are associated with the amount of information required to address potential litigation.
Although NEPA is supposed to provide a process for public participation, often the input received isn't from groups or individuals directly impacted by a federal action.
"The practical effect is that the quality of comments is becoming subordinate to the quantity of comments," the task force noted.
After considering the testimony and input from across the nation, the task force has issued a draft report with its recommendations for revisions to the NEPA. The task force determined that NEPA is a valid and functional law, but there are elements of the law in need of change.
"To do nothing would be a disservice to all stakeholders who participate in the NEPA process," the report stated.
From a five-page list of proposed changes, here are a few of the recommendations for revisions:
* Define "major federal action" to only include new and continuing projects that would require substantial planning, time, resources or expenditures.
* Add mandatory timelines for the completion of NEPA documents: 18 for an EIS and nine months for environmental assessments.
* Create unambiguous criteria for the use of categorical exclusions, environmental assessments and environmental impact statements.
* Address supplemental NEPA documents by limiting supplemental documentation unless there is a showing that an agency has made substantial changes in the proposed actions that are relevant to environmental concerns and there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.
* Prepare regulations giving weight to localized comments so that the issues and concerns raised by local interests should be weighted more than comments from outside groups and individuals who are not directly affected by that proposal.
* Amend NEPA to require that "reasonable alternatives" analyzed in NEPA documents be limited to those which are economically and technically feasible.
The U.S. House Task Force on Updating the National Environmental Policy Act will accept public comment on its findings and recommendations for 45 days. Following the comment period, the task force will prepare a final report early next year.
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