CHAPTER 4 CURRENT EFFORTS TO CHANGE THE NEPA PROCESS: THE LEGISLATIVE TASK FORCE
| Jurisdiction | United States |
(Feb 2006)
CURRENT EFFORTS TO CHANGE THE NEPA PROCESS: THE LEGISLATIVE TASK FORCE
Task Force on Improving the National Environmental Policy Act and Task Force on Updating the National Environmental Policy Act
Committee on Resources
United States House of Representatives
Initial Findings and Draft Recommendations*
December 21, 2005
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IMPORTANT INFORMATION ABOUT THIS REPORT
The purpose of this initial report is to present to the general public a collection of draft findings and recommendations for improving and updating NEPA. It is important that these findings and recommendations receive input from those who will be affected by them. To that end, comments are welcome from any interested party. Further, the recommendations set forth in this report are a "floor" and it is appropriate for anyone submitting comments to proffer any additional recommendations that are supported by the findings, testimony or comments provided during the hearing process (e.g., from April 6, 2005 through November 30, 2005).
This report has been prepared by staff to the Task Force on Improving the National Environmental Policy Act and Task Force on Updating the National Environmental Policy Act. As such, the initial findings, draft recommendations and conclusions have not been endorsed by any member of the Task Force on Improving the National Environmental Policy Act or Task Force on Updating the National Environmental Policy Act.
Specificity of Comments: Comments must address specific recommendations. For example, comments should express opinions on whether or not a particular recommendation is warranted, possible, or beneficial. As stated above, comments that suggest additional recommendations supported by information provided to the Task Force are welcome.
How to submit comments: Only written comments will be accepted. Comments must include the commenter's name, address and if the comments are on behalf of a company or organization, and the affiliation of the comment's author (i.e., title, company, organization name). Computer generated, bulk or other nonspecific comments will be given their just consideration. The quality, not the volume, of the comments is critical.
Comments can be sent by the following means:
| Mail: | NEPA Draft Report Comments |
| c/o NEPA Task Force | |
| Committee on Resources | |
| 1324 Longworth House Office Building | |
| Electronic mail: | nepataskforce@mail.house.gov |
| Facsimile: | (202) 225-5929 |
The comment period on this initial report is 45 days. Due to the fact that the 45th day falls on a weekend, comments are due no later than February 6, 2006. Late comments will NOT be considered.
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Executive Summary
This initial report represents an initial view on the ways to improve NEPA. It is meant to provide the reader with a summary of comments and testimony, not to provide recitation of every point raised during the hearing period. With such diverse opinions on whether or how to improve and update NEPA and the importance of crafting workable, effective recommendations, it is necessary to provide members of the public the opportunity to express additional and dissenting views.
Findings -- The testimony and comments revealed that there are two distinct views of the NEPA process. The first is that the status quo is adequate. This view was expressed by a majority of environmental groups and their members. The other perspective is that NEPA is a landmark law, but could use some improvements. This was the opinion of Federal agencies, tribal representatives, state and local representatives, NEPA practitioners, applicants and some citizen groups.
The findings were grouped around the following themes:
• What does NEPA mean
• The impact of changing NEPA
• Litigation
• Federal, tribal, state and local entities and the NEPA process
• NEPA's interaction with other substantive laws
• Delays with the NEPA process
• Cost of compliance
• Public participation
• Adequacy of agency resources
The findings revealed some interesting facts about the NEPA process. For example, it is evident that, as is the case with any governmental process, problems become interconnected. In other words, delays are based on litigation which in turn creates larger NEPA documents which lead to more delays and costs.
Additional highlights of the findings are:
• With respect to what NEPA means, the Task Force heard a wide range of opinions. Some suggested that the statute is a quasi-substantive "protection" type law whereas others maintained that it is procedural.
• The topic of changing NEPA elicited strong beliefs that changes are necessary and would be productive. There were equally strong emotions that potential changes to NEPA or its regulations, in any way, would undermine the effectiveness of the law.
• Litigation was seen by many as the single biggest challenge with the NEPA process -- and one of the most effective tools for ensuring its success. The empirical data paints a picture of few actual lawsuits but it does not address the perception or threat of litigation and the impact it has had on the NEPA process.
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• Federal, tribal state and local agencies do indeed interact fairly well within the NEPA process. There is room for improvement in terms of getting more governmental bodies involved in the NEPA process.
• NEPA and other environmental laws do work in concert. However, there are many instances of redundant environmental analysis.
• When "delay" is discussed it centers on the seemingly endless nature of the NEPA process. The process is without question much longer today than it is has been in the past. Delay affects both applicants and those not directly connected to the Federal decision.
• Costs of complying with NEPA are rising, but these costs are seen by some as a necessary evil when weighed against the potential impacts of a federal decision that impacts the environment.
• Public participation is central to the success of NEPA but many groups and applicants feel somewhat disenfranchised. Some groups informed the Task Force that it is difficult to provide meaningful comments and in some instances, the comments were ignored.
Recommendations -- This initial report sets out 22 recommendations based on the testimony and comments. The draft recommendations are grouped to address the major issues presented to the Task Force. The draft recommendations are organized as follows:
• Group 1 -- Addressing delays in the process
• Group 2 -- Enhancing public participation
• Group 3 -- Better involvement for state, local and Tribal stakeholders
• Group 4 -- Addressing litigation issues
• Group 5 -- Clarifying alternative analysis under NEPA
• Group 6 -- Better Federal agency coordination
• Group 7 -- Additional authority for the Council on Environmental Quality
• Group 8 -- Clarifying the meaning of "cumulative impacts"
• Group 9 -- Studies
The draft recommendations within these groups speak to legislative as well administrative actions. Finally, these draft recommendations are intended to improve the NEPA process to ensure maximum values for all stakeholders.
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Background and Summary of Activities
NEPA, signed into law on the first day of 1970, was the product of over a decade's work in the House and Senate. NEPA established a national environmental policy and provides a framework for environmental planning and decisionmaking by federal agencies. NEPA directed federal agencies, when planning projects or issuing permits, to conduct environmental reviews to consider the potential impacts the proposed action would have on the environment.
Under NEPA, environmental review is an interagency process. One Federal agency assumes the lead role working cooperatively with other Federal and state agencies throughout the environmental review process. This coordinated review process includes input from the public, as well as from other agencies, to guarantee that all environmental protections, as well as other issues are addressed.
The underlying premises of NEPA are that the federal government must take environmental factors into account when rendering decisions and inform the public of the environmental impacts of those decisions. The need for a law like NEPA arose from the rapid pace of development this country was experiencing in the post World War II era.
Many have called NEPA the "Magna Carta" of environmental laws. As such, there is a sense that the law and its edicts should not be changed. In fact, the law has been amended only twice in its history; first to allow states to prepare environmental analyses in some instances and second to make changes regarding administrative matters of the Council on Environmental Quality. Unfortunately, time and again public sector entities, companies, individuals and organizations have raised issues of cost and process burdens. These stories often reach the conclusion that NEPA must be changed. Over time it became clear that the level of the federal government's environmental awareness has increased in the years since NEPA was enacted. After 35 years and in light of the myriad of anecdotal accounts, it is a legitimate exercise to review how well or poorly NEPA has evolved.
The impacts of the NEPA process has not been reviewed by the Resources Committee since 1998. A comprehensive examination of NEPA has never been conducted by Congress. On April 6, 2005, Committee on Resources Chairman Richard W. Pombo (R-CA) established the Task Force on Improving the National Policy Act ("NEPA Task Force") to begin the process of reviewing NEPA. The goal of the NEPA Task Force was to study NEPA related issues, discuss possible improvements and to make recommendations to the Chairman and Ranking Member. The method to reach this goal was to conduct field hearings in key areas of the United States as well as provide means for any interested party to provide comments or recommendations.
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