August 26, 2002

 

NEPA Task Force

P.O. Box 221150

Salt Lake City, UT 84122

 

            Re:      Comments on Review of NEPA Regulations

 

Dear NEPA Task Force:

 

            I was pleased to learn that the Bush Administration is undertaking a review of the National Environmental Policy Act (“NEPA”) regulations.  As a public lands attorney, I have extensive experience litigating NEPA.  I have a strong understanding of the regulations and the ways in which they are usually applied by the courts.   The end of each section of this letter includes a specific proposal for change in the language of specific NEPA regulations.

 

1.         Make it clear that the agencies must take a “hard look” at economic and cultural impacts of their decisions  

 

The U.S. Court of Appeals for the Ninth Circuit and other federal courts have ruled that a party claiming economic harm resulting from a government decision may not sue the agency for failure to perform adequate NEPA analysis as to the economic impact of the decision.  E.g. Port of Astoria v. Hodel, 595 F.2d 467 (9^th Cir. 1979); Nevada Land Action Association v. United States Forest Service, 8 F.3d 713 (9^th Cir. 1993).  These rulings have the effect of giving priority to the livelihoods of plants, animals, insects and fish over the livelihoods of human beings.  While NEPA is a procedural statute and does not dictate the outcome of the decision making process, it tells agencies what factors they must consider and give weight to.  However, if the agencies know that they may be subject to lawsuits for unsupported statements in a NEPA document that no economic or cultural impact will result from a government activity, they will be more likely to take a “hard look” at such impacts, along with impacts to plants and animals.  

 

My suggested change captures the intent of NEPA better than current regulations.  This should be obvious since the primary requirement of NEPA is to evaluate “major federal actions significantly affecting the quality of the human environment.”  42 USC § 4332 (emphasis supplied).  The purposes of NEPA were originally expressed by Congress as follows:

 

The purposes of this chapter are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

 

42 USC § 4321 (emphasis supplied).  The act further provides that NEPA is intended “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[.]”  Id. § 4331(a) (emphasis supplied).  NEPA was never intended to focus on environmental protection to the exclusion of economic and social considerations.  Rather, it was intended to consider how to best create harmony between human use and enjoyment of resources and conservation for long-term use.  However, NEPA is very clear that it is a use-oriented statute, and that economic and cultural considerations are important:

 

In order to carry out the policy set forth in this chapter, it is the continuing responsibility of the Federal Government to use all practicable means, consistent 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 esthetically 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;

 

42 USC § 4331(b) (emphasis supplied).  These statutory provisions clearly indicate that economic and cultural considerations are important considerations in NEPA analysis.  Yet the courts have often interpreted NEPA in an extreme fashion, considering it to be primarily concerned with the preservation of nature and not particularly concerned with the economic and cultural impacts of government decisions.  These decisions defeat some important original purposes of NEPA and should be remedied through regulatory reform.   Based on these observations, I suggest that  40 CFR § 1502.23 be modified as follows: 

A monetary cost-benefit analysis relevant to the choice among environmentally different alternatives shall be considered for the proposed action, and shall be incorporated by reference or appended to the statement as an aid in evaluating the economic, cultural and environmental consequences.  Such analysis shall be based on high quality economic and anthropological research by qualified members of the interdisciplinary team.  To assess the adequacy of compliance with section 102(2)(B) of the Act the statement shall, when a cost-benefit analysis is prepared, discuss the relationship between the cost –benefit analysis and any analyses of unquantified environmental impacts, values, and amenities. For purposes of complying with the Act, the weighing of the merits and drawbacks of the various alternatives must be displayed in a monetary cost-benefit analysis; but the cost-benefit analysis shall indicate that it may not account for some important qualitative considerations. In any event, an environmental impact statement shall indicate those considerations, including economic and cultural factors, which are likely to be relevant and important to a decision.

(Emphasis indicates proposed changes to the current text.)  More important, I recommend modifying 40 CFR § 1508.14 as follows:

 

Human environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. (See the definition of ``effects'' (Sec. 1508.8).) This means that economic, cultural or social effects may by themselves to require preparation of an environmental impact statement. When an environmental impact statement is prepared and economic or social and natural or physical environmental effects are interrelated, then the environmental impact statement will discuss all of these effects on the human environment. 

 (Emphasis indicates proposed changes to the current text.)

        These proposed changes would help to change the unwritten policies of some offices within the land management agencies of protecting the health of the land to the exclusion of all other human values.  These changes would also encourage the agencies to be more creative in their efforts to find ways to harmonize commercial and recreational activities with conservation goals, rather than simply furthering conservation objectives to the exclusion of all other values.   More important, this policy would better further the purpose of NEPA to promote “harmony between man and his environment,” 42 USC § 4321, rather than considering human activity to be the inevitable enemy of a healthy environment.

            2.      Require More Cooperation With Local Governments

            There is already some good regulatory language requiring the federal government to cooperate with state and local governments in the NEPA process.   However, the role of state and local governments continues to be largely advisory and, in actual practice, the federal agencies exercise a lot of discretion and, in many cases, barely acknowledge the local governments.  The existing regulations are as follows:

(a)     Agencies authorized by law to cooperate with State agencies of statewide jurisdiction pursuant to section 102(2)(D) of the Act may do so.

(b)     Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and State and local requirements,[[1]] unless the agencies are specifically barred from doing so by some other law. Except for cases covered by paragraph (a) of this section, such cooperation shall to the fullest extent possible include:

(1)     Joint planning processes.

(2)     Joint environmental research and studies.

(3)    Joint public hearings (except where otherwise provided by statute).

(4)     Joint environmental assessments.

(c)     Agencies shall cooperate with State and local agencies to the fullest extent possible to reduce duplication between NEPA and comparable State and local requirements,[[2]] unless the agencies are specifically barred from doing so by some other law. Except for cases covered by paragraph (a) of this section, such cooperation shall to the fullest extent possible include joint environmental impact statements. In such cases one or more Federal agencies and one or more State or local agencies shall be joint lead agencies. Where State laws or local ordinances have environmental impact statement requirements in addition to but not in conflict with those in NEPA, Federal agencies shall cooperate in fulfilling these requirements as well as those of Federal laws so that one document will comply with all applicable laws.

 

(d)     To better integrate environmental impact statements into State or local planning processes, statements shall discuss any inconsistency of a proposed action with any approved State or local plan and laws (whether or not federally sanctioned). Where an inconsistency exists, the statement should describe the extent to which the agency would reconcile its proposed action with the plan or law. 

40 CFR § 1506.2.   To further strengthen state and local participation under these guidelines, I recommend the addition of the following subsections:

(e)        Except where specifically prohibited by statute, state and local governments have the right to be informed at an early stage of any NEPA analysis and planning concerning national parks, national forests, or any other federal lands within their borders or, in the case of municipalities, within twenty miles thereof, and to participate as joint lead agencies in the preparation of all such NEPA documents.

 

(f)          No document prepared pursuant to NEPA shall be complete without the concurrence and signature of the duly authorized representative of every joint lead agency.

The foregoing language would help to ensure meaningful participation by state and local governments in the NEPA process, and require the appropriate federal agency to convince the state or local government that it has adequately considered their local concerns before taking action that could be harmful to the local communities and cultures.

 

        My philosophical commitment to local participation in federal land use decisions is explained in the enclosed article, authored by me, which appeared in the Utah Bar Journal in January 2000.  This article discusses the Enlibra doctrine, a resolution adopted by the Western Governor’s Association in an attempt to outline a set of general principles to guide the development of environmental policy in the West.  I hope that you will give this article careful attention.

 

            My article also discusses the Clinton Administration’s frequent use of the Antiquities Act, 16 USC § 431, to impose environmental policy on western states without even consulting the affected communities.   The article explains that the President used the Antiquities Act in order to avoid the consultation requirements of NEPA.  The Antiquities Act was originally intended to give the President the power to designate a monument in an emergency where immediate and irreversible harm to important historic, scientific, or aesthetic resources was threatened.  Changes in NEPA regulations cannot change the President’s powers under the Antiquities Act.  Moreover, I would not deny the President this authority.  However, the President should send a bill to Congress amending the Antiquities Act.  The Amendment should permit the President to make a temporary designation of a national monument in order to deal with present emergencies.  However, there should be a time limit within which he must provide an Environmental Impact Statement and a fully developed management plan to the Congress for approval.   The temporary designation should expire after a designated time period.  My comments on this subject are brief because comments have not been requested regarding the Antiquities Act.  However, legislative changes are needed to close the Presidential loophole with respect to NEPA compliance. 

               If you have further questions, please do not hesitate to contact me.                                                                          





Sincerely, 

                                                                            





Jeffrey B. Teichert    
Attorney at Law