U.S. GOVERNMENT PRINTING OFFICE

47–866 CC u WASHINGTON : 1998

PROBLEMS AND ISSUES WITH THE NATIONAL

ENVIRONMENTAL POLICY ACT OF 1969

HEARING

BEFORE THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

SECOND SESSION

MARCH 18, 1998, WASHINGTON, DC

Serial No. 105–102

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.access.gpo.gov/congress/house

or

Committee address: http://www.house.gov/resources
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

RON KIND, Wisconsin

LLOYD DOGGETT, Texas

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director
(III)

C O N T E N T S

Page

Hearing held March 18, 1998 ................................................................................. 1

Statement of Members:

Chenoweth, Hon. Helen, a Representative in Congress from the State

of Idaho .......................................................................................................... 3

Prepared statement of ............................................................................... 4

Letter of Robert S. Lynch ......................................................................... 79

Texas ‘‘blowdown’’ letters, press releases and reports ........................... 227

Cubin, Hon. Barbara, a Representative in Congress from the State of

Wyoming ........................................................................................................ 2

Prepared statement of ............................................................................... 2

Pallone, Hon. Frank, Jr., a Representative in Congress from the State

of New Jersey ................................................................................................ 5

Prepared statement of ............................................................................... 6

Chronology of Port Newark/Elizabeth Dredging Permit ........................ 216

Statement of Witnesses:

Allen, Randy, General Counsel, River Gas Corporation, Northport, Alabama ............................................................................................................... 50

Prepared statement of ............................................................................... 79

Byrne, Michael J., Vice Chairman of the Federal Lands Committee, National Cattlemen’s Beef Association, Washington, DC .............................. 51

Prepared statement of ............................................................................... 130

Caldwell, Lynton K., Professor of Public and Environmental Affairs, Indiana University, Bloomington, Indiana ........................................................ 65

Prepared statement of ............................................................................... 88

Chu, Dan, Executive Director, Wyoming Wildlife Federation, Cheyenne,

Wyoming ........................................................................................................ 54

Prepared statement of ............................................................................... 86

Geringer, Hon. James, Governor of Wyoming, Chairman, Interstate Oil

and Gas Compact Commission, Oklahoma City, Oklahoma, and Vice

Chairman, Western Governors’ Association, Co-chair, Great Plains

Partnership .................................................................................................... 7

Prepared statement of ............................................................................... 105

Hutchinson, Howard, Executive Director, Coalition of Arizona/New Mexico Counties for Stable Economic Growth, Glenwood, New Mexico .......... 67

Prepared statement of ............................................................................... 206

Leftwich, Tim J., Senior Environmental Scientist, Principal, GL Environmental, Inc., Rio Rancho, New Mexico ........................................................ 62

Prepared statement of ............................................................................... 149

Loesel, Jim, Roanoke, Virginia ........................................................................ 64

Prepared statement of ............................................................................... 202

McGinty, Hon. Kathleen, Chair, Council on Environmental Quality,

Washington, DC ............................................................................................ 11

Prepared statement of ............................................................................... 113

Norton, Hon. Gale, Attorney General, State of Colorado, Denver, Colorado ................................................................................................................ 14

Prepared statement of ............................................................................... 123

Scarlett, Lynn, Reason Public Policy Institute, Los Angeles, California ..... 56

Prepared statement of ............................................................................... 140

Additional material supplied:

American Farm Bureau Federation, Washington, DC, prepared statement

of ..................................................................................................................... 102

American Forest & Paper Assoc., prepared statement of ............................. 264
Page

IV

Additional material supplied—Continued

American Petroleum Institute, the Natural Gas Supply Association, the

Independent Petroleum Association of America, the Mid-Continent Oil

and Gas Association, the Western States Petroleum Association, and

the National Ocean Industries Association, prepared statement of ......... 100

Borrone, Lillian C., Director, Port Commerce, The Port Authority of New

York & New Jersey ....................................................................................... 92

Browner, Carol M., Administrator, Environmental Protection Agency,

Federico F. Pen ̃ a, Secretary, Dept. of Transportation, Togo D. West,

Jr., Secretary, Department of the Army, prepared statement of .............. 94

East Texas Wind Storm—Sabine National Forest ......................................... 222

Green River Basin Advisory Committee, NEPA Streamlining Recommendations ............................................................................................... 277

Penelas, Hon. Alex, Mayor, Miami-Dade County, prepared statement of ... 99

Problems and Issues with the National Environment Policy Act of 1969 ... 223

Rocky Mountain Oil & Gas Association, prepared statement of .................. 96

The National Environmental Policy Act Impact on Public Lands Mineral

Development and Options for Reform ......................................................... 164

Zelms, Jeffrey L., President & CEO, Doe Run Resources Corp., prepared

statement of ................................................................................................... 269
(1)

HEARING ON PROBLEMS AND ISSUES WITH

THE NATIONAL ENVIRONMENTAL POLICY

ACT OF 1969

WEDNESDAY, MARCH 18, 1998

U.S. HOUSE OF REPRESENTATIVES,

COMMITTEE ON RESOURCES,

Washington, DC.

The Committee met, pursuant to notice, in room 1324, Longworth House Office Building, at 11 a.m., the Hon. Don Young,

Chairman, presiding,

Members present: Representatives Young, Chenoweth, Cannon,

Gibbons, Hill, Hinchey, Pallone, Pombo, Thornberry, Cubin, Hansen, Saxton, Vento, Crapo, and John.

Chairman.YOUNG. The Committee will come to order. Today we

are gathered to examine problems and issues with the National

Environmental Policy Act of 1969.

NEPA is prime for an oversight hearing. It is the product of

1960’s thinking, with no legislative or regulatory change to speak

of over 20 years. NEPA is experiencing many problems. This White

House’s neglect, abuse, and avoidance of its NEPA responsibilities

are serious issues.

The Council on Environmental Policy was created by NEPA to

administer the Act. Ms. McGinty is now the only member of the

poorly named council. Just a few weeks ago, Ms. McGinty, you told

Congressman Lewis, who is the Chairman of your Appropriations

Subcommittee, that NEPA reinvention was your top priority; yet,

you have only a tiny fraction, of any, of your staff working on this

project.

Specifically, Ray Clark is supposed to be your NEPA man, but

he’s spending his time now on your controversial American Heritage Rivers program.

When he was in Montana last week, Mr. Clark got quite a feel

for the distaste that many of our constituents harbor about that

program, which the CEQ is trying to orchestrate. You told Congresswoman Carrie Meek a couple of years ago that the Homestead

Air Force District in her Miami District would be free of its NEPA

problems under your oversight. This Administration said Homestead was on the fast track to gainful use. Today Homestead lies

barren. The local economy is suffering. We have testimony from the

Mayor of Miami-Dade County as to these facts.

You told members of the Utah delegation to Congress that this

Administration was not moving forward on any plans for the monument designation in Utah. By subpoenaing your e-mail, our staff
2

has documented that not only did you purposely keep members of

the Utah delegation in the dark, but you also worked to designate

the monument as an end-run around the National Environmental

Policy Act that you’re supposed to be administrating.

Now you’re working on a moratorium on the roads in national

forests. We have seen that you’ve chosen to circumvent a full

NEPA examination of the issues by using an interim rule and you

have again thumbed your nose to this Congress and to public comment.

This Administration has demonstrated that it has one set of

standards for itself, and another for the common citizen, our constituents.

I’m here to tell you that this Administration is not above the law

or this Congress. Again, this Act has not been reviewed, it has neither been looked at nor had any oversight for the last 20-some-odd

years. It is time we find out what NEPA is doing, where we’re

headed, and are we going to make this work for the people of

America. Or, is it going to continue to be a process in which some

here are heard and some are not heard.

I think it’s very unfortunate that we have now seen that much

of the public is not heard.

Let us go to the opening statement by Ms. Barbara Cubin at this

time and the introduction of her one witness, please.

STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF WYOMING

Ms. CUBIN. Mr. Chairman, I will submit my opening statement

to the record. I was just looking for it and I don’t want to hold the

Committee up.

But I am honored to introduce our first witness; that would be

Governor Jim Geringer from the great, greatest State of Wyoming.

Jim and I have been friends for a long time. We served in the Wyoming State Legislature together, first of all, in the State House and

then in the State Senate.

Jim is very knowledgeable about all of the issues that are in

front of this Committee and it is a great honor for me to introduce

my friend and my Governor, the Honorable Jim Geringer.

[The prepared statement of the Hon. Barbara Cubin follows:]

STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF WYOMING

Mr. Chairman, thank you for holding this oversight hearing today on the problems and issues associated with the National Environmental Policy Act (NEPA). I’m

pleased to see that my friend and colleague, Governor Geringer, is here to testify

on behalf of our State and I look forward to his testimony. The Governor will also

be appearing before my own Subcommittee tomorrow to discuss royalty-in-kind for

OCS and Federal oil and gas leases, so I feel fortunate to have him here for two

days to provide us with the benefit of his counsel on these important issues.

Although I believe that NEPA was never intended to mandate particular results,

but simply to prescribe the necessary processes to allow Federal agencies to understand the environmental consequences of a particular action, my fear is that we

have really moved in the opposite direction. By that I mean that we have so many

competing interests involved in a Federal agency action—some with much at stake,

others with nothing at stake—that various groups often tend to impose their will

upon an agency to make a particular decision, regardless of what the true scientific

facts are.

But more often that not, what we see and have seen in Wyoming as Governor

Geringer will attest to here today is the lack of cooperation among the State and
3

Federal agencies. Decisions are routinely made without the State’s consent or comments or worse still, State’s comments and concerns are ignored. This style of management is simply unacceptable and merely leads to friction in what could and

should be a more collaborative process.

In Wyoming for example, in response to a number of concerns and appeals surrounding the impacts of oil and gas development on Federal lands, Secretary Babbitt and Assistant Secretary Armstrong insisted on putting together an advisory

council to look at ways in which to streamline the leasing process in the Green

River Basin in Wyoming. Although I will be the first to admit that I was fairly skeptical about this committee, I think in the end the group came up with some reasonable recommendations to resolve resource conflicts on public lands. Regrettably, I

don’t believe many of those recommendations were adopted by the Interior Department, but the committee does demonstrate that consensus can be reached when

varying interests are included from the outset in a particular issue.

In stark contrast, however, is the American Heritage Rivers Initiative (AHRI), a

product of the President’s 1996 State of the Union Address which later became an

Executive Order mandate. Notwithstanding the fact that this initiative involved

twelve Federal agencies and would have a tremendous impact on our States and

rural communities, no Environmental Impact Statement was ever prepared on the

AHRI. While I realize the President’s Council on Environmental Quality (CEQ) has

some leeway in excluding certain Federal initiatives from the NEPA process, I am

still puzzled as to how or why that could be the case with AHRI. I intend to quiz

Ms. McGinty on that very issue when my turn for questioning comes around.

Mr. Chairman, there is no doubt in my mind that NEPA was a well-intentioned

law aimed at providing Federal agencies with the necessary tools to make decisions

about how resource development projects might affect our environment and examine

ways in which to mitigate those impacts. But I also think of it as a law of unintended consequences. I hear numerous complaints from my constituents on a regular basis complaining of the unnecessary delays associated with Environmental Assessments and EIS’s, not to mention the costs incurred with the work product. So

I hope if nothing else, we can come away from this hearing with some solid ideas

on how to improve the NEPA process. With a little help and consistency from both

State and Federal agencies across the country, we can not only improve the contents

of NEPA documentation, but we can reduce the time frame allotted to them and,

accordingly, the size of the text and review time necessary for local authorities. I

look forward to working with the members of the Committee on that important effort.

Chairman YOUNG. I thank the kind lady. Are there any other

opening statements at this time, before I call the rest of the witnesses? Ms. Chenoweth?

Ms. CHENOWETH. Mr. Chairman, I have an opening statement.

Chairman YOUNG. Yes, ma’am. You are recognized.

STATEMENT OF HON. HELEN CHENOWETH, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Ms. CHENOWETH. Mr. Chairman, I want to thank you for holding

this oversight hearing on the implementation, application and successes of the National Environmental Policy Act.

Mr. Chairman, from my vantage point, the application and implementation of NEPA by the Clinton–Gore Administration has not

been based on science, as the Act requires, but on pure politics.

Take, for instance, a recent blow-down in the Sabine National Forest in eastern Texas and this—I will send this up for your perusal,

Mr. Chairman.

—————

Sabine photograph on page 222

Roughly 102,000 acres of trees were blown down, broken and

lying on the forest floor. This is indeed a catastrophic event and

the waivers provided by CEQ were correct and needed. These waivers allow logging companies to go in and harvest the dead trees,
4

clean the forest floor, protect the area from wildfire, and, thus, save

the Sabine National Forest’s health.

I would like to publicly congratulate Ms. McGinty and Vice President Al Gore, who became personally involved in the salvage operation in east Texas, which just happens to be in the district of our

Democratic colleague, Jim Tanner.

I thank them for moving quickly in Texas by waiving NEPA to

achieve forest health objectives. Contrast this with what is happening in Idaho. In northern Idaho, the Idaho Panhandle National

Forest, we suffered ice storm damages on thousands of acres, and

I fail to see why the Administration can do the right thing in

Texas, but fails to do so in Idaho, Washington, Montana, California, Wyoming, Utah, New Mexico and Colorado.

Unfortunately, this appears to be a pattern. Just two weeks ago

we held a hearing on the application of the Endangered Species Act

and the hearing and numbers only confirmed what most of us already believed. More than half of the budgets of both the National

Marine Fisheries Service and the Fish and Wildlife Service go to

the west and, in the case of National Marine Fisheries Service,

more than 70 percent of its enforcement budget goes to the northwest.

Most of the Federal Endangered Species listings and jeopardy

findings are in the west, this in spite of the fact that the eastern

states have listed more than a thousand species, listing the Federal

agencies have fully ignored. And to make matters worse, NMFS applies different criteria to the Atlantic Salmon and the Pacific Salmon.

The latest attack, the Clinton–Gore roadless moratorium is a

wholesale sidestep of NEPA and the Administrative Procedures

Act. Even though the proposal threatens the health of the forest,

the economic well-being of communities, the livelihoods of families,

the Forest Service is planning open houses.

I ask, Mr. Chairman, on this major Federal action, where is the

opportunity for the public comment and input? There are no hearings, as required for significant Federal actions; only opportunities

for the agencies to engage in propaganda. This is terrible.

Why is this, Mr. Chairman? From my vantage point, it’s pure

politics.

Again, I want to thank you for holding this hearing and I look

forward to questioning our witnesses.

[The prepared statement of the Hon. Helen Chenoweth follows:]

STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF IDAHO

Mr. Chairman, thank you for holding this oversight hearing on the implementation, application and successes of the National Environmental Policy Act, otherwise

known as NEPA. This is an incredibly important issue to my state.

Mr. Chairman, from my vantage point, the application and implementation of

NEPA by the Clinton–Gore Administration has not been based on science as the Act

requires; but on politics. Take for instance a recent blowdown in the Sabine National Forest in Eastern Texas.

Roughly 102,000 acres of trees were broken and lying on the forest floor. This is

indeed a catastrophic event, and the waivers provided by the Council on Environmental Quality (CEQ) were correct and needed. These waivers allow logging companies to go in and harvest the dead trees, clean the forest floor, protect the area from

wild fire, and thus save the Sabine National Forest’s health.
5

I would like to publicly congratulate Katie McGinty and Vice President Al Gore

who became personally involved in the salvage operation in East Texas, which just

happens to be in the district of our Democratic colleague Jim Tanner. I thank them

for moving quickly in Texas, by waiving NEPA, to achieve forest health objectives.

Contrast this with what has happened in Idaho. In northern Idaho’s Panhandle

National Forest, we suffered ice storm damages on thousands of acres. I fail to see

why the Administration can do the right thing in Texas, but fails to do so in Idaho,

Washington, Montana, California, Wyoming, Utah, New Mexico and Colorado.

Unfortunately, this appears to be a pattern. Just two weeks ago, we held a hearing on the application of the Endangered Species Act. The hearing and numbers

only confirmed what most of us already believed. More than half of the budgets of

both the National Marine and Fisheries Service and the Fish and Wildlife Service

go to the West; and in the case of NMFS, more than 70 percent of its enforcement

budget goes to the Northwest Region. Most of the Federal endangered species listings and jeopardy findings are in the west; this in spite of the fact that the Eastern

States’ have listed more than a thousand species . . . listings the Federal agencies

have fully ignored. To make matters worse, NMFS applies different criteria to the

Atlantic Salmon and the Pacific Salmon.

The latest attack, the Clinton–Gore Roadless Moratorium, is a wholesale sidestep

of NEPA and the Administrative Procedures Act. Even though the proposal threatens the health of the forests, the economic well-being of communities, the livelihoods

of families, the Forest Service is planning Open Houses!!! I ask, Mr. Chairman, on

this major Federal action, where is the opportunity for public comment and input?

There are no hearings as required for significant Federal actions, only opportunities

for the agency to engage in propaganda. This is horrible.

Why is this, Mr. Chairman? From my vantage point, it’s politics!

I look forward to questioning our witnesses.

Chairman YOUNG. Mr. Pallone.

STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW JERSEY

Mr. PALLONE. Thank you, Mr. Chairman. I just wanted to say

that NEPA is, in many ways, the most important of all environmental legislation. It was the first and still key environmental statute that sprang up in the early 1970’s, when Americans demanded

action to address environmental quality in context of the first

Earth Day.

And unlike other environmental statutes, the target is specific

aspects of environmental protection, like the Clean Water Act.

NEPA is fundamental to overall environmental problems. It requires the Federal Government to consider the environmental impacts of its actions and, even more importantly, NEPA often provides the only opportunity for public comment on these Federal

proposals.

If nothing else can speak to the effectiveness of NEPA, then it

is the number of attempts to waive NEPA in the 104th and 105th

Congresses.

But I have to say that the possibility—possibly the most effective

aspect of NEPA, in my opinion, is the Council of Environmental

Quality, which is actually formed under the statute. I simply cannot say enough good things about the CEQ. And I’m not just saying

it because Katie McGinty is here today to testify.

I want to just give an example, very briefly. CEQ was instrumental in the New York/New Jersey area in eliminating the gridlock on a very controversial issue in our area, and that was the

dredging and disposal of dredged material. For years, maintenance

dredging from the Port of New York and New Jersey was being

held up because there was no place to put contaminated dredged

spoils.
6

Traditional practice was to simply dump it in the ocean, just off

my district, as luck would have it, and my constituents and I

fought hard against the ocean dumping of these toxic sediments in

what was essentially our back yard at the Jersey shore.

But just as vocal on the other side of the issue were the port interests, both industry and labor, and in the middle were the Army

Corps of Engineers and the EPA, which regulated and administered dredging and dredge disposal permits. The battle between

these parties raged on for years, to the point where just a couple

of years ago, New York City ended up paying millions of dollars to

ship dredged materials to Utah and, for some reason, we could not

come to a resolution, and that was until CEQ got involved.

CEQ brought everyone to the table; the environmental interests,

the port interests, the labor interests, the EPA, and the Corps, and,

with CEQ’s help, we finally reached an agreement. With their help,

we finally closed the last ocean dumping site off the Jersey shore

last fall, while, at the same time, moving priority dredging projects

for the Port of New York. And now disposal alternatives are being

developed that actually involve the beneficial reuse of this material

for construction purposes, the same material that just a few

months ago you couldn’t pay to get rid of unless you were willing

to send it almost clear across the country.

CEQ was instrumental in this endeavor and I know that without

their help, we never could have accomplished what I consider to be

a landmark achievement for the Jersey shore and the Port of New

York and New Jersey.

I just have a letter from the Port of New York and New Jersey

which expresses its support and the great work that the CEQ is

doing. I would like to submit it for the record, with your permission, Mr. Chairman.

In closing, I just wanted to thank Katie McGinty for all the great

work that I think the CEQ is doing.

I think this is an important example because on the one hand,

we had the labor and business interests; on the other, we had the

environmental interests, and she and the Council were able to

work this out to everyone’s satisfaction, so that everyone is, in effect, happy today, and we’re also not shipping this stuff to Utah,

which I think, I’m sure the people in Utah appreciate, as well.

Thank you, Mr. Chairman.

[The prepared statement of Representative Pallone follows:]

STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN CONGRESS FROM

THE STATE OF NEW JERSEY

Thank you, Mr. Chairman.

Mr. Chairman, the National Environmental Policy Act, informally referred to as

NEPA, is really in many ways the most important of all emvironmental legislation.

It was the first of and still key environmental statute that sprang up in the early

1970’s when Americans demanded action to address environmental quality in the

context of the first Earth Day.

Unlike other environmental statutes that target a specific aspect of environmental

protection like the Clean Water Act, NEPA is fundamental to overall environmental

protection. NEPA requires the Federal Government to consider the environmental

impacts of its actions. And even more importantly, NEPA often provides the only

opportunity for public comment on these Federal proposals.

If nothing else can speak to the effectiveness of NEPA, then it is the number of

attempts to waive NEPA in the 104th and 105th Congresses.
7

But I would have to say that possibly the most effective aspect of NEPA is the

Council of Environmental Quality, which is actually formed under the statute.

I simply cannot say enough good things about CEQ—and I’m not just saying that

because Katie McGinty is here to testify before us today.

CEQ has been instrumental in the New York–New Jersey area in eliminating the

gridlock on a very controversial issue in our area—dredging and dredged material

disposal. For years, maintenance dredging for the Port of New York and New Jersey

was being held up because there was no place to put the contaminated dredged

spoils. Traditional practice was to simply dump these contaminated spoils in the

ocean, just off of my district—as luck would have it. My constituents and I fought

hard against the ocean dumping of these toxic sediments in what was essentially

our backyard at the Jersey Shore. But just as vocal on the other side of the issue

were the port interests, both industry ans labor. And in the middle were the Army

Corps of Engineers and the U.S. Environmental Protection Agency which regulate

and administer dredging and dredged material disposal permits.

The battle raged on for years, to the point where just a couple of years ago, New

York City ended up paying millions of dollars to ship dredged material to Utah. For

some reason, we could not come to a resolution. Until CEQ got involved.

CEQ brought everyone to the table—the environmental interests, the port interests, the labor interests, the EPA, and the Corps—and with CEQ’s help, we finally

reached agreement. With CEQ’s help, we finally closed the last ocean dump site off

of the Jersey Shore last fall while at the same time moving priority dredging

projects for the Port. And now, disposal alternatives are being developed that actually involve the beneficial re-use of this material for construction purposes, the same

material that just a few months ago, you couldn’t pay to get rid of unless you were

willing to send it almost clear across the country.

CEQ has been instrumental in this endeavor and I know that without their help,

we never could have accomplished what I consider to be a landmark achievement

for both the Jersey Shore and the Port of New York and New Jersey.

At this time, I would like to ask that a letter from the Port Authority of New York

and New Jersey which expresses its support for CEQ and the great work that they

are doing be submitted into the record.

In closing, I want to thank Katie McGinty for all of the great work that I think

CEQ is doing. I look forward to continuing to work with her and her staff at CEQ

on environmental issues that are important to both New Jersey and the Nation as

a whole.

Thank you.

Chairman YOUNG. Any other opening statements?

[No response.]

Chairman YOUNG. If not, I will call the rest of the panel to the

floor. Ms. McGinty and the Honorable Gale Norton, Attorney General of the State of Colorado. Please take your seats.

Again, I want to restate, this is the first oversight hearing we

have had on NEPA since the creation of it. We are here to find out

where we’re headed, not where we’ve been, and if there is a—I

would call it a discretionary ability for the Council on Environmental Quality to pick certain areas to do things and certain areas

not to do things for political purposes.

If that is the case, then the Act itself is failing. Governor, you

are welcome to the Committee and, again, with the kind introduction your great Congresslady made, I will not introduce you any

further. But welcome and we look forward to your testimony as the

Governor of one of the states nearly as pretty as Alaska; not quite,

but nearly. Governor, you’re up.

STATEMENT OF HON. JAMES GERINGER, GOVERNOR OF WYOMING, CHAIRMAN, INTERSTATE OIL AND GAS COMPACT

COMMISSION, OKLAHOMA CITY, OKLAHOMA; VICE CHAIRMAN OF THE WESTERN GOVERNORS’ ASSOCIATION

Mr. GERINGER. Well, it’s a matter of judgment, Mr. Chairman.

Since you’re the Chairman, it’s your state.
8

Chairman YOUNG. Thank you, sir.

Mr. GERINGER. Thank you for the opportunity to be with you

today and the Committee on Resources Oversight as we discuss the

National Environmental Policy Act.

I’m the Governor of Wyoming, though one of the organizations

that I am chair of has its headquarters in Oklahoma, and that’s

the Interstate Oil and Gas Compact Commission.

That is an organization of 36 member states and four international affiliates who are involved with the regulation and conservation of our energy resources.

But I am here principally as the Governor of Wyoming, to represent its people, and also to speak for a couple of other organizations. I am currently the Vice Chairman of the Western Governors

Association. Tony Knowles, Governor of Alaska, is chair, and we

will be up in your territory next summer, Mr. Chairman.

Also, I am here with the Great Plains Partnership, which I cochair, along with John Sawhill of the Nature Conservancy. The

reason I cite these organizations and their interest is that all of

them are working to improve the process of involving people, our

lands, our livelihood and our future in resource management.

This is a people issue, Mr. Chairman, and I hope that we can

focus on that, instead of that blasted buzzer.

Mrs. CHENOWETH. We want to make sure you’re awake.

Mr. GERINGER. I see that. The National Environmental Policy

Act was enacted in 1969, with the stated purpose of understanding

the interrelations of all components of the natural environment,

taking words from the purpose clause. It goes on to say that it’s

the policy of the Federal Government, in cooperation with state and

local governments and other concerned public and private organizations, to create and maintain conditions under which we can exist

to fulfill social, economic and other requirements of the present and

future generations.

I call your attention to those words, Mr. Chairman, because the

impact and the intent have been diminished considerably over the

years. I was reviewing some of the documents put out by the Council on Environmental Quality. Kathleen McGinty, seated with me

here today, has said we have much to gain in finding common

ground to conserve resources for future generations, while at the

same time we provide a stable economic future our people.

I call attention to those words, as well, because the economic considerations are not always a major factor as we evaluate NEPA and

the other environmental Acts.

Katie McGinty made a statement from the chair in the CEQ 25th

anniversary report that says ‘‘Our common ground, the environment, has become a battleground. Somehow we have become a

country in receivership, with the courts managing our forests, our

rivers and our range lands.’’

In fact, Mr. Chairman, it’s not just that the courts are directly

involved in managing many of our resources, they are indirectly

managing all of them in our states because of the fear of litigation,

not just because of actual litigation.

The Act called NEPA is not the problem so much as the implementation of the Act. It takes too long, it costs too much, it’s

spawns unending litigation, and it is so inconsistently implemented
9

that each agency of the Federal Government has its own customtailoring of an approach.

You’d likely not even have to amend NEPA at all, Mr. Chairman,

if we could simply require the Federal Government to be consistent

and speak with one voice. We have one President, one Congress.

We ought to have just one Federal Government when it comes to

speaking on issues.

We have to change the confusing and contradictory regulations

used by the Federal agencies to implement NEPA. In other words,

it’s not the Act, it’s the actors.

The Act is intended to require Federal, state and private actions

that are comprehensive, with better planning, that have an intergenerational view in their effect and strike a wholesome balance

between the environment and the economy. Quoting from the Act

itself, 1022(a), which discusses the fact that we are looking at the

impact on the human environment, the human environment is

cited several times in the regulations of the CEQ and the economy

has to be a factor in that overall human environment; after all,

poverty and loss of community are definitely part of the human environment.

I have several suggestions for improving NEPA, but the importance of a stronger role for state and local governments is what I

would emphasize the most today.

In a letter that Katie wrote to me last summer, it says that ‘‘Regulations implementing the Act at CFR 1508.5 are clear that a state

or local government may, by agreement, with the lead agency, become a cooperating agency.’’ Quoting further, ‘‘Frankly, considering

NEPA’s mandate and the authority granted in Federal regulation

to allow state and local cooperation through agreement, cooperator

status for state and local governments should occur routinely.’’ In

fact, it does not.

In fact, I would cite two other sections of the CEQ regulations

that allow for the appointment of joint lead agencies with the

states as a joint lead agency and also a reference in 1506.2(c) that

says ‘‘State and local governments shall be designated as joint lead

agencies in those appropriate areas.’’

In fact, that does not occur at all, let alone routinely. Clearly, the

shortcomings with NEPA are in the application, not in the purpose.

Agencies have much too much of their focus on producing litigation-proof documents and not enough concern about involving people in the process.

I recommend improvement in five key areas. First, involve the

right people, which means including local and state governments

from the beginning. Quite often, Federal agency officials come to

my Wyoming office to update me on actions they’ve already taken

or will take. Well, Mr. Chairman, I’m tired of being updated. The

states are partners in natural resource management and rather

than being updated, we should be included in the planning and the

evaluation process to ensure that our people are represented in the

spirit in which NEPA was enacted.

I remind those here today that the states were not created by the

Federal Government; rather, the Federal Government was created

by the states. We have governing responsibilities under law that
10

cannot and should not be set aside. Clearly, we have shared and

concurrent jurisdiction with the Federal agency managers.

As an example, when the U.S. Forest Service and the Bureau of

Land Management oversee the land management responsibilities

they have, the states have primacy over wildlife management, air

quality, water quality, solid waste disposal, and water rights management on those very same lands. In other words, we have a joint

or shared responsibility that requires full partnership, not just a

close relationship.

Let me repeat that. We want a full partnership, not a close relationship. By analogy, the police officer with a prisoner in handcuffs

has a close relationship with the prisoner, but I would hardly call

that a partnership.

Mutual respect and benefit characterize a partnership. Take the

handcuffs off, Mr. Chairman.

The Great Plains Partnership, which represents 14 Great Plains

states, has a mission statement that, paraphrased, goes like this—

‘‘We need to help the people on the land feel good about stewardship in control of their choices so that they can pass something

along to their children that’s better than what they receive.’’

We have to show in plain and simple actions that the environment, the economy, and the community are compatible. Our citizens are tired of the judicial gridlock and they’re feeling left out of

the process. They are willing and able to participate. Local government involvement, particularly early in the process, can greatly reduce conflicts in litigation, which is an extraordinary cost to our

government.

That first recommendation then focuses on the need to be partners with state and local governments.

My second recommendation is that coordination among and within agencies has to be improved. We have duplication of environmental analyses, to the detriment of the process and the expense

of the Federal Government. We could redirect many of our financial

resources if they were only better utilized.

The poor coordination among the project proponents, lead agencies, and third parties that are hired to conduct the analysis does

not always occur.

Third, inconsistencies among and within agencies have to be reduced. We have Forest Service management on permit allotments

in Wyoming, where one forest requires only the grazing allotmentholder to do the oversight, the second forest requires the officials

only in the Forest Service to do the monitoring, and the third forest

allows the policy to change from district to district. Again, the Federal agencies should speak with one voice.

Two more points, Mr. Chairman, and I’ll wrap it up. Fourth, the

training of Federal agency personnel needs to be improved and increased. The word is not getting even from the CEQ regulations

down to the field. Even the CEQ regulations very clearly cover the

economic and community impact and the participation of the

states; yet, it’s not at all implemented at the local level. There has

to be a recognition of that legitimate role for state and local government.

Even understanding the difference between EAs and EIS’s is not

even clear down at the local level. There need to be consistency and
11

reasonable alternatives, clear, concise documents that use plain

language and limits on the volume of the paperwork.

In the words of the CEQ regulation, the goal is to be analytic,

not encyclopedic.

Fifth and finally, there must be a scientific, substantive basis for

asking for how to manage so that we avoid the endless inquiries

and unnecessary data collection. I call your attention to the use of

adaptive management, which the National Academy of Sciences

calls the process where management and research are combined so

that the projects are specifically designed to reveal causal relationships between interventions and outcomes to maximize learning.

Regulations should be built upon adaptive management and

trust. Make a decision based upon the best information at that

time, don’t try to cover every possible contingency. You can always

ask one more question that starts off with ‘‘what if.’’ Make the decision, get underway and monitor the performance and if there is impact, adapt to correct the problem. Use accurate science and modern technology and train the people to be objective.

The culture and the history of the Rocky Mountains reflects a

strong spirit of independence and innovation. We have a deep-seated respect for each other and a spirit of cooperation, where it’s not

just a matter of neighborliness that can mean survival. We do support each other; we respect the resource; we conserve for the next

generation to prevent the irreversible deterioration that comes

from a lack of stewardship.

It is in this spirit that I present my comments today, with the

goal of improving the implementation of NEPA.

Chairman YOUNG. Governor, we’re about out of time. I apologize.

Mr. GERINGER. Mr. Chairman, I will answer any questions.

[The prepared statement of the Honorable Jim Geringer may be

found at end of hearing.]

Chairman YOUNG. I do thank you for your testimony. This Committee will recess until 20 minutes of 12. I want all of you back

here, if we’re going to ask the questions. I do thank you. The Committee is now recessed for 10 minutes. Thank you.

[Recess.]

Chairman YOUNG. The Committee will come back to order. I do

thank the panel for bearing with this very ineffective system we

call Congress, running back and forth, but apparently we are now

through with our votes for a length of time, so we can go through

the panel.

The next testimony, we will hear from Kathleen McGinty, Chair

of the Council on Environmental Quality, Washington, DC. You’re

up.

STATEMENT OF HON. KATHLEEN McGINTY, CHAIR, COUNCIL

ON ENVIRONMENTAL QUALITY, WASHINGTON, DC

Ms. MCGINTY. Thank you, Mr. Chairman and members of the

Committee. Thank you for the opportunity to visit with you today

on the National Environmental Policy Act. This Committee certainly is to be congratulated; first, in the historic role the Committee played in devising and putting into place the National Environmental Policy Act and, also, now today, in spending time and

effort to oversee and ensure the Act’s faithful implementation.
12

Let me state that I believe very strongly that NEPA is a seminal

statute and I say that not just as an environmental statute, but

more broadly. For four reasons, I think that that is the case.

First and foremost, NEPA is not just about the environment.

While it certainly has been a watershed statute in ushering in our

efforts to protect the environment in this country, NEPA actually

is about the integration of environmental, economic and social considerations into one coherent whole.

Second and related to that very important piece of what NEPA

is about is that NEPA is the singular place where we see both a

directive and, through the Council on Environmental Quality, the

opportunity for there to be cooperation and coordination among the

various parts of the Federal family.

Third, NEPA is that statute that calls for, if you will, sobriety

in the expenditure of the public’s fisc. It asks and calls on the agencies to look before they leap, to plan and make decisions in a sound

and wise way, and, fourth, very related to all of the above, NEPA

is a seminal statute because it is that one place that ensures a democratization of decisionmaking. It is that one instrument through

which the public and state and local governments have a seat at

the table as decisions are made which affect them in a very real

way.

I think, Mr. Chairman, certainly in the last 5 years, but in the

30 years of NEPA’s history, we have been able to accomplish enormous successes through NEPA. First, we have been able to change

conflict into cooperation. Mr. Pallone cited the example in the New

York/New Jersey harbor. Years of battling, yielded to a cooperative

and collaborative approach that serves both the environment and

the economic interests in the New York/New Jersey region.

In California, a similar situation with regard to the management

of water resources, 20 years of feuding, ceding to cooperation and

collaboration as environmental-economic interests brought together

for the first time into a collaborative process.

And just last week, a joint initiative we were able to undertake

with the Governor of California to finally move beyond the loggerheads we have seen under the Endangered Species Act and reach

a partnership agreement with the State of California which avoids

Federal action to list salmon in northern California.

All of these things enabled by that piece of NEPA that says we

should move from conflict to cooperation and collaboration by

bringing all the interests to the table.

Second, NEPA has been the instrument through which we have

saved the public a vast amount of money. In South Carolina, $53

million saved as a bridge was redesigned, money saved and wetlands protected that otherwise would have been lost through a

more expensive approach.

In Texas, up to $54 million saved as NEPA analysis showed that

new ports and new docking facilities were not necessary. The list

can go on and on.

Third, NEPA has enabled us to engage the public as never before

in decisions that affect their lives. Governor Geringer has been a

leader in this regard and I was pleased to work with him to ensure

that for the first time the State of Wyoming and Park County, Wy-
13

oming will be cooperating agencies in figuring out the best management plan for Yellowstone.

Overall, NEPA has been about telling us that the choice between

jobs and the environment is a false choice. Either we will have both

or we will have neither, and NEPA further tells us that the only

way we will avoid that false polarization we have seen is if we integrate environmental, economic and social considerations and we

achieve that integration by bringing the variety of voices and actors

to the table for collaborative processes.

Despite these successes, Mr. Chairman, and members of the

Committee, there have been shortcomings. To echo what the Governor has said, those shortcomings are inherent not in the statute

itself or the regulations that CEQ has issued to implement the

statute over the years, but in the implementation of the statute

itself.

The shortcomings fall into several categories. Paperwork; NEPA

is supposed to be about good decisions, not grand documents. But

instead we have seen a proliferation of paper rather than a perfection of process which truly vests the public with the interests that

they deserve in decisions that affect their lives.

Second, minutia; NEPA has gotten involved in the small actions

that happen every day, but has been lost in the larger policymaking, programmatic planning and processes that the agencies

follow.

Third, pro forma procedures; rather than giving the public an opportunity to feel effectively engaged in decisionmaking, the public

often feels that the public hearings that are provided are pro

forma, that we are going through the motions, but that, in fact and

in reality, the decision has already been made.

Fourth, continued confrontation and lack of collaboration. This

comes back to a technical part of the statute. The agencies are not

fully taking advantage of implementing the scoping process that

NEPA provides. That process is about getting all of the interests

to the table up front, identifying any problem that’s going to arise

with the project up front, and work it out as the project moves

itself along in the process.

In light of these shortcomings, Mr. Chairman, as you mentioned,

it has been my priority to reinvent the processes that have evolved

in the implementation of NEPA and to secure again the original

purposes of NEPA.

We have made progress in that regard. We have issued a plain

English directive to make these documents understandable to the

general public. We have begun to enforce page limitations on how

long the documents can be and we have begun to insist that the

agencies use common terminology; so that the Forest Service is

speaking the same language as the BLM, for example.

We had a project plan to move forward and build on these initial

steps that we’re taking. A project that would include the adaptive

management procedures that the Governor refers to, landscaped

scale management, moving up to programmatic levels of NEPA implementation, and, importantly, further ensuring the participation

of state and local governments.

As this Committee is well aware, the Congress did not support

the reinvention initiative last year, however, and I welcome this
14

forum as an opportunity further to reflect on the importance of that

reinvention effort and hopefully to secure with you a path for moving forward with that reinvention effort once again.

Thank you very much, Mr. Chairman and members of the Committee.

[The prepared statement of Kathleen McGinty may be found at

end of hearing.]

Chairman YOUNG. Thank you, Ms. McGinty. Ms. Norton, you’re

up next.

STATEMENT OF HON. GALE NORTON, ATTORNEY GENERAL,

STATE OF COLORADO, DENVER, COLORADO

Ms. NORTON. Mr. Chairman and members of the Committee, I

appreciate this opportunity to discuss the National Environmental

Policy Act with you today.

I think NEPA is a good piece of legislation that has lost its way

during implementation. With some small changes, however, it can

accomplish what it was intended to accomplish; that is, having the

state and Federal Governments work together to find and implement the proper balance between protecting the environment and

achieving other societal goals.

I will focus today on the federalism issues of NEPA. I am familiar with both the Federal and state perspectives on environmental

and natural resources issues. During my 7 years as Colorado’s Attorney General, I have been personally involved in many environmental and natural resources issues, and I was selected by other

Attorneys General to chair our Environment Committee.

During the Reagan Administration, I served in the Department

of Interior as Associate Solicitor for Conservation and Wildlife. In

addition, I am currently the national chair of a new organization,

the Coalition of Republican Environmental Advocates.

The National Environmental Policy Act was passed by Congress

in 1969 and signed into law by President Richard Nixon in 1970.

The Act reflected a widespread public desire to address concerns

over the worsening state of the environment.

Today, environmental impact statements and environmental assessments are a routine part of the planning for any project undertaken by the Federal Government or that requires Federal approval. The EPA Office of Federal Activities recently described the

statistical picture of NEPA analysis. Of the final EIS’s submitted

in 1996, the longest had 1,638 pages of text, while the average was

572 pages, including 204 pages of NEPA analysis. Although an average of only 508 environmental impact statements were prepared

each year between 1990 and 1995, CEQ estimated that about

50,000 environmental assessments were being prepared annually.

The original goal of NEPA and many other environmental statutes was to forge a Federal/state partnership in protecting the environment. In NEPA, state and local governments were to have an

essential part in determining the environmental and societal impacts of Federal actions.

This state/Federal partnership has worked well in some instances. For example, the U.S. Department of Transportation has

allowed our Colorado Department of Transportation to play a significant or even primary role in preparation of some EIS’s. On the
15

other hand, states have often found themselves at odds with the

Federal Government when the issue involves public land, an issue

that is critically important to western states.

This is not what Congress intended when it began the environmental decade. To remedy this problem, Senator Thomas recently

introduced Senate Bill 1176, the State and Local Government Participation Act, which would amend NEPA to specifically require

Federal agencies to cooperate with states and counties.

Innovative environmental policies come about when the states

can act as laboratories of democracy. Furthermore, the states are

important in the Federal/state environmental partnership because

there is no such thing as one-size-fits-all government. The states,

where government is closer to the people, are the proper entities

to implement environmental laws and policies.

To return to the original intent of Congress and NEPA and so

many other environmental statutes, I recommend that Congress

start the devolution of authority in the environmental area back to

the states by a small amendment to NEPA. Specifically, Congress

should require that agencies consult at an early stage with state

and local governments in developing environmental impact statements.

It should be clear in NEPA that an environmental impact statement is not adequate if it does not fully address state and local

concerns.

The most significant challenge set out in NEPA is that government must strive to find a proper balance between environmental

protection and other societal needs. We certainly need a clean and

healthy environment. Americans applaud the advancements in

clean air and clean water made since NEPA and other key environmental statutes went into effect.

We also need a productive society that fulfills the social and economic needs of present and future generations. State, local and

Federal Governments must attempt to balance all of these needs

in implementing environmental policies. We must ensure that all

societal needs and impacts are identified in the NEPA informationgathering process.

If the Forest Service is going to deny an easement for an existing

water project, we need to understand not only the environmental

impacts, but also the impacts on the way of life of local communities and their economic productivity.

We must use the information collected and analysis done in the

NEPA process to identify potential conflicts and initiate a process

to resolve them. For example, the NEPA process may identify a potential conflict between the local community and a Federal agency

proposing a project. Amendments to NEPA might require that

some conflict resolution mechanism be initiated at that point to resolve the conflict.

In short, collecting information and analyzing societal impacts is

desirable, but only if the information is used to make well reasoned

and balanced decisions about Federal actions.

In conclusion, I would suggest that the policy set out in NEPA

30 years ago is a good one—protect the environment while balancing that protection with other societal needs and goals. Thirty

years later, we have sometimes strayed from that policy. The best
16

thing we can do for citizens and the environment is to return to

that original vision.

Thank you.

[The prepared statement of Gale Norton may be found at end of

hearing.]

Chairman YOUNG. Thank you, Ms. Norton, excellent testimony.

All good testimony by the witnesses.

Governor and Ms. Norton, if I heard you correctly, you’re saying

that NEPA, to make it really work, should be primarily in the

states’ authority or in a total partnership with the Federal Government. Is that correct?

Mr. GERINGER. Mr. Chairman, yes. In fact, what should routinely

be occurring is so rare that it doesn’t even implement the requirements of the Act or the regulations that were designed to do that.

I made reference to joint lead agencies. I don’t know if we can

cite a situation of recent memory where a state—and I believe the

Act itself calls for those areas of responsibility that are statewide—

where the state has statewide jurisdiction or an agency within the

state has statewide jurisdiction. Those agencies are to be routinely

designated as joint lead agencies, not just cooperator status.

We fight hard just to even get cooperator status and usually we

are just updated.

Chairman YOUNG. Ms. Norton, are you saying there should be

some amendments to the Act itself to make sure this occurs? Right

now, it’s my interpretation that the agencies, and not necessarily

Ms. McGinty herself personally, have in the past cooperated very

little and are now cooperating very little. The cooperation usually

is with the Federal Government. You either cooperate with the

Federal Government or there is no cooperation.

So there has to be an amendment to the Act. Is that my interpretation of your testimony?

Ms. NORTON. The Act itself, as it currently stands, would fully

allow cooperation between the states and Federal Government.

The CHAIRMAN. But it isn’t required.

Ms. NORTON. It is not.

The CHAIRMAN. It will allow it, but there is no law that says it

has to occur.

Ms. NORTON. We would like to see more of a mandate to

require——

Chairman YOUNG. I go back to the Governor’s comment. Remember, this is supposed to be the United States of America, not the

United States of the Federal agencies. I think that is very, very

true.

That’s one reason I challenge every witness I have before me,

anybody, go down the halls or the walks of any street in any town

of the United States today and ask them what they think of their

Federal Government, and you will be terribly disappointed, and I’m

part of it.

So there’s something wrong somewhere along the line. The states

should be the ones to be lead agencies, and it ends up being the

Federal Government saying, ‘‘Don’t bother us, we’re God and don’t

mess with us.’’

Katie, I’ve got a question to ask you. One of the things that concerns me is the reinvention, you talk about reinvention, which is
17

Al Gore’s campaign word. Top priority, but how many people do

you have working on reinvention of NEPA right now?

Ms. MCGINTY. Well, every one of my staff engages in a reinvention of the statute in every action they undertake every day. Every

example that was either cited by myself or Congressman Pallone,

that is CEQ acting, one, to ensure coordination among the agencies; two, to integrate economic and social considerations into environmental decisionmaking.

Chairman YOUNG. With all due respect, Katie, that’s not reinvention. That’s what you should be doing anyway. What are we doing

to expedite the process? We’re going to have a chart up here a little

later.

The length of NEPA, the requirement for a permit is deplorable.

I mean, it takes forever. So what are you doing to reinvent this

process?

Ms. MCGINTY. Mr. Chairman, there is no convincing necessary in

terms of selling me on how important reinvention is. That’s why I

launched it and I initiated the overall reinvention project. As this

Committee is aware, however, the Congress did not provide resources for the reinvention project last year.

And I would remind the Committee that CEQ, as we exist today,

we are less than half the size that we were at the final days of the

Bush Administration or as we were proposed to be in the final days

of the Bush Administration.

Chairman YOUNG. May I ask the question? Why do you have to

increase in size if the states are the lead agencies?

Ms. MCGINTY. Because the job to be undertaken here is enormous. To ensure that—as Gale Norton pointed out, there are

50,000 EAs, approximately, that might be undertaken every year.

To really try to make sure that overall on a programmatic basis

that the agencies are acting in a way that fulfills the objectives

that have been talked about here, giving agencies a seat at the

table, integrating various considerations, that can’t be done on

a——

Chairman YOUNG. You and I have a difference of opinion. I don’t

think the agencies ought to be doing what they’re doing right now.

It should be the state that’s doing it. The agencies shouldn’t have

the power they have over an individual when it comes to filing an

environmental impact statement.

I never understood why the states can’t, in fact, do an environmental job equally or better than the Federal Government. Why

should the Federal Government be involved with it anyway?

One question I have last and then my time is running out. Are

there any limits on how much a Federal agency can extract from

a private citizen to pay for the cost of doing an environmental impact statement?

Ms. MCGINTY. The private citizens do contribute to the analysis

that is done on an EIS or an EA.

Chairman YOUNG. In Alaska, the Forest Service is holding a native corporation hostage and requiring them to pay all costs of

NEPA to get a right-of-way that’s legally theirs across the lands,

and every time they finish it, they add to the cost for requiring further studies.

Now, where is the limit here?
18

Ms. MCGINTY. Well, one of the things that I would like to pursue

in the reinvention project is to give a permitee the ability to secure

an agreement with the agency on what the time-frame would be,

to negotiate a schedule for how long the NEPA process will be.

That is one of our top priorities in pursuing the NEPA reinvention

project.

Chairman YOUNG. I just think eventually we’re going to have to

write it into law because this is going on too long—there have been

four EIS statements finalized, just about to the point where they

can sign off, and they add to it and they’re paying for it, in what

is an attempt by an agency, using the EIS statement and, in fact,

NEPA, to stop the project itself.

I think that is very inappropriate and never was the intent of the

Act.

My time has run out and we’ll have a second round. Mr. Vento.

Mr. VENTO. Thanks, Mr. Chairman. I’m sorry I can’t stay for the

hearing, but I think it’s an important hearing in terms of exploration of the NEPA law and the role of the CEQ and the chair person, who, I guess, is alone in fulfilling that role these days by virtue of Congress’ help.

I want to place in the record the Western Governors Resolution,

Mr. Chairman. That hasn’t been done yet and I assume that you

want it in the record.

Chairman YOUNG. Do you have any objections, Governor?

Mr. GERINGER. None at all.

Chairman YOUNG. All right. We’ll do that.

[The information to be inserted may be found at end of hearing.]

Mr. VENTO. Governor, I think that you point out in your statement that the NEPA process has improved Federal decisionmaking, in the opening paragraph of that particular statement,

don’t you? This statement says that.

Mr. GERINGER. It depends on which part you interpret.

Mr. VENTO. Well, I’m reading the initial background statement,

part one, that it’s improved decisionmaking.

Mr. GERINGER. And where that has been properly applied, that

is certainly true, because we have a great improvement over what

some of our circumstances were in the past on the impact on the

environment.

What we’re frustrated with now is the endless litigation and the

process has turned on itself.

Mr. VENTO. I understand what your concerns are. I mean, one

of the statements I read there is in the background, it is .2, it says

that it sounds as though you want to consolidate some of the decisionmaking power in NEPA and take it away from Federal agencies.

Is that a valid interpretation of this statement?

Mr. GERINGER. It’s to allocate what is rightfully the responsibility of the states and that’s why I made the point about concurrent jurisdiction.

Mr. VENTO. Well, of course, I think the issue here is what could

we do, Chairperson McGinty, this Committee, to, in fact, more effectively implement NEPA?

Ms. MCGINTY. I think that this hearing is a very good start. I

would like collaboratively to join with the Congress in ensuring the
19

implementation of NEPA. The statute, as written, and the regulations, as written, call for the very kind of thing the Governor is

calling for, as well, and it only makes sense.

We should have coherence and coordination among the Federal

agencies. We should have state and local governments at the table

helping us to fashion our decision. We should act in a timely fashion.

These are things that are called for, but, frankly, it’s a big job

to ensure that they are actually being implemented.

Mr. VENTO. Well, it’s hard to play catch when someone throws

the ball straight up the air, isn’t it?

Ms. MCGINTY. Yes. One thing I would mention, Mr. Vento, the

issue has been raised several times about whether or not states

and county governments are being given or afforded the opportunity to be joint lead agencies.

In fact, there are many instances right now where that is happening and the one that specifically comes to mind is in Yellowstone, where the State of Montana is a joint lead agency with us.

Mr. VENTO. What could you—one of your tasks is to try to mediate disputes. It seems one of the problems here—I guess we’re dealing with land issues. As I looked at the list of witnesses, it looked

like mining, logging, a lot of interesting issues. I didn’t see recreation witnesses in there, but——

Chairman YOUNG. They don’t have to file a NEPA analysis.

Mr. VENTO. They don’t have to file a NEPA. Well, I disagree that

some recreation impacts would and do and have necessitated. But

let me get back to the witnesses, Mr. Chairman. We can debate

amongst ourselves any time.

But one of your roles is to try to mediate disputes between agencies. In a sense, this is a coordination effort here. Obviously, you

can argue about who should take a lead and who shouldn’t. I think

we also make a lot more heat than light with regards to the lack

of collaboration, because I find it to be generally very close.

But you have to have someone there willing to catch the ball and

cooperate on the issues rather than frustrate the decision, as happens when we try to locate little things like nuclear waste sites and

so forth, you know. It isn’t always positive, guys, you know.

But what about the coordination and how we can get that? We’re

also resisting a lot of debarkment inertia in terms of trying to hold

onto their own turf.

Ms. MCGINTY. Yes. Right.

Mr. VENTO. So you’ve got a major job. We talked about cutting

your staff in half since what it was in 1992. What can we do to,

in fact, enhance that ability to give you more authority or at least

some carrots here to incentivize the agencies and departments to,

in fact, cooperate?

Ms. MCGINTY. Well, this sounds like an opportunity not to be

missed and I would refer the Committee to the President’s budget

request. But in addition to that, I think more often than not, Mr.

Vento and members of the Committee, it comes down to providing

that forum where agencies can be brought together.

It’s not about at all questioning anyone’s decisionmaking authority, but respecting the expertise that’s brought to bear by the variety of agencies. We have, I think, shown that when the Forest
20

Service, for example, now works cooperatively with the Fish and

Wildlife Service, that their mutual interest can be advanced in a

much better and effective way.

Mr. VENTO. There is also a learning curve in there, learning how

to write these statements today. It’s much more effective than what

it was when it was uncertain in that litigation that is put in is not

always in good faith, is it?

One of the things—if I call you and ask you and have a problem

in my district, I have a right to expect you to respond, don’t I, as

the Council for Environmental Quality with regards to NEPA?

Ms. MCGINTY. Yes, absolutely, and that is, of course, one of the

missions we are charged with under the National Environmental

Policy Act.

Mr. VENTO. And you are also charged with coming up with proposals and helping prepare the annual report for the President

that’s supposed to be due in July, and with coming up with other

initiatives.

So your responsibility in terms of the Council of Environmental

Quality is very broad besides NEPA. And so to have cut this budget this way obviously is a self-fulfilling prophecy with regard to the

unworkability of NEPA in the last 5 years.

Thank you, Mr. Chairman.

Chairman YOUNG. The gentleman’s time has expired. The gentleman from Utah.

Mr. HANSEN. Thank you, Mr. Chairman. Mr. Chairman, I think

the Governor was right. When he’s speaking to the Federal Government, the Federal Government should be consistent and speak with

one voice. Ms. Norton says state governments should work together

with the Federal Government.

I don’t mean to beat up on an old horse here, but Ms. McGinty

is fully aware that I subpoenaed many documents from the Administration with regard to the creation of the Grand StaircaseEscalante. One of those documents was from the ANDALEX coal

mining proposal of the Kaiparowits Plateau.

It is significant to note that the EIS was about to find that there

was no significance impact. The document shows that people in

higher positions didn’t want that to happen. Another document I

subpoenaed went like this. It was a dialog between Mr. John

Leshy, the—you know who he is, and some other folks in Interior,

and the document notes that NEPA compliance is still necessary

when an agency proposes a creation of a national monument.

The gist of the whole idea is this; if an agency proposes the idea,

you have to do NEPA. If the President proposes the idea, you don’t

have to comply with NEPA. Then CEQ spent the next 7 months

trying to get the President to sign a letter, so that it could be his

idea, and the interesting thing is, it’s great reading if you’re bored

some night and you want to keep awake, is the letters between

CEQ and the President of the United States, getting him to sign

this letter so they could go down and do this.

Then why did they do it? Other documents we got are very, very

clear. They did it just for political purposes. The environmental

community would wildly accept that.

Now, I don’t have any fault with what you do. This is hindsight.

Maybe we can eat this one and live with it and kill the economy
21

of southern Utah, but what the heck, we got some political mileage

out of it, so why do we care.

Mr. Chairman, I would like unanimous consent to put in the

record a work by our Committee, your people, Behind Closed

Doors-The Abuse in Trust and Desecration of the Establishment of

the Grand Staircase-Escalante National Monument.

Chairman YOUNG. Without objection, so ordered.

[The information will be included in the Committee files at 1324

Longworth House Office Bldg, Washington, DC.]

Mr. HANSEN. I’d like to add, now that that’s behind us, I feel better. Thank you, Ms. McGinty, for allowing me to say that.

Would you look at that thing right there in front of you?

Ms. MCGINTY. I think I have it.

Mr. HANSEN. You’ve got a copy of that.

Ms. MCGINTY. I’ve got a copy of it, yes.

Mr. HANSEN. Well, I notice you folks are going to waive NEPA

on a blow-down that happens to be going on in Texas at this particular point. What you see in front of you is the Dixie National

Forest. The Dixie National Forest is one of those beautiful forests

that wasn’t a forest until we started managing it in southern Utah

over 150 years ago.

Now, they have a little infestation of pine beetle in that area and

the supervisor of the forest, a Mr. Hugh Thompson, he said, ‘‘I can

go in there and cut those 30 acres out and it will be gone and the

strong force can replant those 30 acres.’’

Now, as you look at the picture, you will see, in different areas,

it’s a dead forest now. And as an old pilot, I like flying over that

area and I see these dead, dead trees staring me in the face.

Why is that? Because the environmental community has taken it

upon themselves to file a lawsuit against the Forest Service every

time, so we can’t take care of it. So we’ve got a dead forest now

and I’m wondering why we do that. But because we do have a dead

forest, it would seem applicable to me and very important and a

great analogy if you’re going to waive the blow-down in Texas, that

you further look at that picture on the far side where you’ve got

dead trees, and grant a waiver for the Dixie.

I could bring to this Committee, and in front of you, dozens of

experts who will say one thing—the possibility of having a fire in

the Dixie is 100 percent. The possibility of a flood behind that is

100 percent. And all that topsoil that’s taken 150 years is now a

big mucky mess down in the valleys of Utah and southern Utah.

I would hope you would give that some consideration in waiving

NEPA here. We have an emergency on our hands. We’ve got a big

problem. I would implore you to give it some thought.

After what I said to you earlier, I don’t know if you will, but anyway, I thought I would—do you want to respond to that?

Ms. MCGINTY. If I might. Thank you, Mr. Congressman.

Mr. HANSEN. I would appreciate it.

Ms. MCGINTY. Yes. And to harken back to Congresswoman

Chenoweth’s comments earlier. I want to make one clarification. In

Texas, as here, if the issue were brought to us, we would not be

waiving NEPA. NEPA has emergency provisions in it. In all cases,

we are executing NEPA.
22

The difference between the situation in Texas that the Congresswoman points out and your situation is only that the Forest Service came to us with a request there and we acted on it immediately

and granted it. We have not received a request from the Forest

Service with regard to the Dixie.

And I agree with you, I have been to the Dixie, it is beautiful.

Chairman YOUNG. Would the gentleman yield?

Mr. HANSEN. I yield to the Chairman.

Chairman YOUNG. Are you trying to tell me that if the Regional

Supervisor now decides not to do this, you have no say in it?

Ms. MCGINTY. There is—what I am saying is that under NEPA

itself, there are provisions for emergency procedures and should

that forest need to execute emergency procedures, there is full provision for that to be provided within the bounds of the statute

itself.

I would just offer one other example, which is Idaho. Last year,

we did follow emergency procedures in Boise at the request of Congressman Crapo and Senator Kempthorne, when there was a dangerous fire situation, a flooding situation there.

Mr. HANSEN. Excuse me. Let me say, the Forest Supervisor in

this particular forest has asked for emergency things here. Apparently, his higher-ups, his betters have not seen it upon themselves

to do it. They have told me they’ve done it because of environmental reasons.

That’s not fair, in my mind. I mean, I didn’t think those guys

handled the forest. I thought scientists did it and managers did it.

Ms. MCGINTY. It is, as I say, Congressman, the first I’ve heard

of it and if the Forest Service wants to come forward and talk to

us about it, we would talk to them immediately about it.

Mr. HANSEN. So if I subpoenaed the Forest Supervisor back here

and put him under oath and he says it, is that what I’ve got to

have to get it in front of you?

Ms. MCGINTY. Under normal circumstances, what he would do to

invoke these emergency procedures is he would put together a process that he would consider the appropriate emergency process. And

as we’ve done in Idaho, as we did last week in Texas, that process

would then fulfill the requirements of NEPA.

Mr. HANSEN. Well, the problem is the person on the ground does

it, but for somebody up above, living in the beltway of Washington,

doesn’t see the necessity of it, and, therefore, we’re stuck.

Ms. MCGINTY. And as I’m saying, this is the first I’ve heard of

the situation. I would be happy to talk to the various parties,

Washington and the Forest Supervisor on the ground to see if we

couldn’t facilitate some discussion there.

Mr. HANSEN. I appreciate that. I’ll have him talk to you. Thank

you so much.

Ms. MCGINTY. Thank you very much.

Mr. HANSEN. Thank you for your time, Mr. Chairman.

Chairman YOUNG. Mr. Hinchey.

Mr. HINCHEY. Thank you very much, Mr. Chairman, and thank

you, ladies and gentlemen, for your very fine testimony. I enjoyed

listening to it very much.

Madam Chairwoman McGinty, NEPA, I think, as you have indicated in your testimony, has been an extraordinarily valuable piece
23

of legislation and that has served the country extremely well over

the course of the last 30 years.

In addition to a great many other things, it has simply prevented

us from making some very serious mistakes, in that it provides the

opportunity for close and careful analysis to projects and programs

before they get started.

Part of that process is the public participation. It seems to me

that there have been a number of examples where public participation has just been extremely valuable and that particular part of

the process is so essential.

Can you comment on that, from your experience, how public participation and how information from the public has been valuable

in making things work better and preventing mistakes from being

made?

Ms. MCGINTY. Yes, absolutely. One example that just comes to

mind is in South Carolina, where a classic train wreck situation,

they need to put a new bridge in, but it would seem to be unavoidable destruction of some very pristine wetlands resources.

No one could figure out how to resolve what seemed to be an irreconcilable conflict, until the public came along and said we live

in this community; we have an idea as to how you could relocate

that bridge, redesign it, still provide the essential transportation

that we want, too. We live here, we want the transportation services, but also in the context of doing that, save and preserve those

wetlands.

The upshot was public happy, wetlands preserved, and $54 million saved, because the new bridge was actually more cost-effective

than the old design would have been.

Mr. HINCHEY. I think that kind of example is indicative of the

reasons why, when you speak to people about this program, and

the state initiatives that have been sired by NEPA, the State Environmental Quality Review Act, for example, I know, I’m very familiar with that in New York and the way it works.

The public overwhelmingly supports these pieces of legislation

for the very valuable contribution they have made and the enormous amount of money that they have saved, both nationally and

for state governments, in the last 28 years or so.

Ms. MCGINTY. Very true. I offered an example in my testimony

of Admiral Watkins testifying about this. He says thank God for

NEPA because through that process, a tremendous amount of

money was saved in identifying a much more sound technology.

Mr. HINCHEY. In your testimony you have identified the need for

additional funding for the reinventing initiative. Can you tell us

how much you requested in the budget and give us some idea of

what that money would be used for?

Ms. MCGINTY. Yes, sir. It’s on the order of a half-a-million dollars, a roundinger, I must say, with regard to most agencies. But

it’s very important to us because it would be funds dedicated to the

reinvention project itself, funds dedicated to have people outside of

the fire fight of the issue-by-issue crisis, looking programatically

across the agencies to see how we can change the implementation

of the Act so it works better for everyone and for all of the purposes

we have been talking about here today.
24

Mr. HINCHEY. I thank you very much and I thank you for the

contribution that you make as the chair of the Governors Council

on Environmental Quality. That office has been extremely valuable

and I can’t think of a better person that’s served in that position

than the contribution that you have made in the time that you

have been working through this Administration on protecting the

environment of our country and saving substantial amounts of taxpayer dollars in the process.

Ms. MCGINTY. Thank you, Congressman. I very much appreciate

it. Appreciate your leadership, as well.

Mr. HINCHEY. Governor Geringer, you were the sponsor, as I understand it, of the Western Governors Association in the 1996 resolution on NEPA. I would like, Mr. Chairman, unanimous consent

to have that resolution included in the record, if it has not been

so already.

Chairman YOUNG. It’s already been included.

Mr. HINCHEY. Already been included. Well, thank you. The Western Governors resolution states that, among other things, as follows; ‘‘The broad goals and objectives of the National Environmental Policy Act are important and have improved the overall

quality of decisions by Federal agencies.’’

Do you, Governor, feel that NEPA has improved Federal decisionmaking processes and the outcomes of those decisions?

Mr. GERINGER. Mr. Chairman, the answer is yes and that’s why

the qualifiers were in my remarks and I’m not sure if you caught

all of them, where the process has bogged down and has become

more of a judicial process than a participatory process.

Mr. HINCHEY. But you feel that the process itself is very valuable.

Mr. GERINGER. The process can be very valuable, but we’re about

to have an impasse on how it might even be implemented. The benefit that can be derived from NEPA is at risk.

Mr. HINCHEY. But hasn’t the process provided avenues of contribution for state and local governments, for Governors and for the

public that didn’t exist before? Hasn’t that opened up the process

and made valuable contributions in and of itself?

Mr. GERINGER. Well, you know, I come from a farming background and there’s an old saying that if it ain’t broke, don’t fix it,

and that may be where your line of reasoning is going. But there

is also a concept that says if you see something that can be prevented, you try to head it off, and that’s what we’re here to do

today, is to try to prevent the breakage of NEPA.

Mr. HINCHEY. I’m of the opinion that anything, no matter how

good it seems, can always be improved. I’m not of the school of if

it ain’t broke, don’t fix it experience, frankly. I think that anything

can be made better and I have no doubt that this could be made

better.

But my point is that it has provided invaluable service to us over

the course of the last 28–29 years. Saved an enormous amount of

money, prevented an awful lot of mistakes from being made, and

I think your statement in 1996 just makes that as clear as could

be.

Chairman YOUNG. The gentleman’s time has expired. Governor,

you can comment, though.
25

Mr. HINCHEY. Thank you, Mr. Chairman.

Chairman YOUNG. You can answer that.

Mr. GERINGER. I guess the response I would have is that if you

see something that’s headed for detriment or disaster, you try to

head that off, and that was part of the reason for even raising that

resolution, was to say we have the goals in mind, we understand

the purpose, we’d like to see the benefit that has accrued in the

past, where it has accrued, now let’s see if we can’t improve that

and make it a general positive overall rather than seeing it die in

the muck.

Mr. HINCHEY. Well, I agree with you.

Chairman YOUNG. The gentleman’s time has expired.

Mr. HINCHEY. It can be improved, but I just don’t want it to ignore all the contributions that have been made in the past.

Chairman YOUNG. The gentleman’s time has expired. I have got

to go to another—I have a bunch of students down there, I have

to speak to them for a moment. Ms. Norton, I’m going to suggest

to you, as Attorney General, if you can give me some ideas of how

to improve this Act by writing some legislation, I would deeply appreciate it.

And, Ms. McGinty, I officially am going to ask you about the

Chugach National Forest. We’re facing a terrible fire problem,

worse than anything you’ve ever seen, and we’re having to face a

fire NEPA requirement. Otherwise, they’re going to wait until it

burns and then it’s going to be heard. We might lose two communities. It’s a classic example of the stupidity of this Act and how

it’s not properly implemented.

Lastly, my Forest Service down in Arizona is suddenly requiring

a rod and gun club to fire off a NEPA environmental impact statement 35 years after this rod and gun club began operating. Yet I

have pictures here, and I’m going to submit them to you, of the

Forest Service dump right next to the rod and gun club for which

they never filed a NEPA requirement, and you’ll want to look at

some of these examples of your agencies. I have requested documentation from them. They have not given it to me yet. They are

going to get subpoenaed, if they don’t.

But this is an example of why there’s such a real bad feeling

about the agency. They require a rod and gun club, who never had

an accident, to file an environmental impact statement and then

they turn around and they have their own dump, and they never

had an environmental impact statement on that adjacent Federal

land.

So there are some real questions about how it’s being implemented.

Mrs. Cubin is going to chair the meeting for a period of time.

[The referenced photos follows:]
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28
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Ms. CUBIN. [presiding] Thank you, Mr. Chairman. The next person in line for questioning I believe is Representative Pombo.

Mr. POMBO. Ms. Norton, in your statement, you talked about a

voluntary self-audit statute that was developed in Colorado. I

would like to hear a little bit more about that and what your experience has been with that particular statute that was adopted in

Colorado.

Ms. NORTON. Thank you, Representative. While this is not directly on point with NEPA, it certainly has a lot to do with Federal/state relations in the environmental area. Colorado adopted a

law that would make a self-audit privilege and some degree of immunity available to companies that want to see if they have any

environmental problems.

It’s essentially an incentive for companies to do voluntary selfaudits and then to correct any environmental problems that they

might find.

The State of Colorado felt, and this was on a bipartisan basis,

felt that it would be more likely that companies would come forward, find problems and correct them if we rewarded them for that

instead of bashing them for doing it.

The EPA has been fighting with us. They are looking at disapproving some of our programs because they think we need to

punish companies that come forward with self-audits rather than

providing them certainty about how they will be treated when they

come into the regulatory process.

I testified yesterday in front of the Commerce Committee’s subcommittee on that and I would be happy to provide you with a copy

of my testimony.

Mr. POMBO. Yes. I would like that and I would like to explore

somewhat what kind of a relationship that creates between the

state agencies and the Federal agencies when you have that kind

of a confrontational relationship that is being developed.

Ms. NORTON. We had, unfortunately, a very confrontational relationship. They sent—the EPA sent us a 23-page single-spaced list

of essentially interrogatories about how our state statute would operate, and that’s on a two-and-a-half page statute.

They have not allowed us to interpret our own law and have

even questioned the way in which we interpret our own law. We’re

going into a negotiation process with them next week and we are

hopeful that we will be able to maintain the spirit of Colorado

State law.

We find it very disturbing that Federal agencies have not allowed us to determine whether our hypothesis is correct. Our hypothesis is that this will be beneficial for the environment. We can

only find out if the Federal agencies will allow us to carry forward

with our experiment.

Mr. POMBO. Now, Governor, in your statement, in your prepared

statement, you talk about the relationship between the Federal

Government and the states and you state in here that the Federal

Government was created by the states, not the states by the Federal Government, and that you believe that the states should have

primacy over environmental laws and over the laws in your particular state.
30

How has your relationship been in operating the state, in working with these different Federal agencies? Has it been cooperative?

Have they always been willing to listen to your ideas and accept

the solutions that have come up with people that live in your state?

Mr. GERINGER. As with many western states, the states feel more

like they are the last to be sought out rather than the first, and

that’s why we brought these issues to the forefront. As the Act and

the CEQ regulations point out, where there is a responsibility, and

I mentioned several of those areas where the states, within their

states, have primacy, the Clean Air Act, the Clean Water Act as

examples, where the states have primacy, they are not consulted

the environmental impact might be or to even do the environmental assessment that leads to the EIS.

It is that frustration that leads to delays, it leads to litigation,

it leads to the costly expenditure of funds. If we were to just simply

reallocate some of those inefficient expenditures, you could triple

the size of the CEQ under the same budget.

Mr. POMBO. Have there been instances where your state has

been named the lead agency and the Federal Government accepted

the findings that you have come up with?

Mr. GERINGER. None in recent memory.

Mr. POMBO. None in recent memory? If this law was working the

way that it was supposed to, would there not be instances that you

could bring out?

Mr. GERINGER. That would certainly be our goal, Representative,

and as I look at the CEQ regulations that deal with exactly that

point, it says that the agencies of the states should be consulted

to eliminate duplication of other procedures.

It talks about joint planning processes, joint environmental research and studies, joint public hearings, joint environmental assessments, and it says unless those state agencies are specifically

barred by some other law, they shall be consulted.

That’s pretty directive.

Mr. POMBO. And have your consultations been in the manner in

which is suggested in the law?

Mr. GERINGER. No.

Mr. POMBO. Do they normally come by and meet with you before

a decision is made?

Mr. GERINGER. Typically after. We should look at the planning

process and at the scoping process, which can be very helpful in

guiding toward an outcome and a more efficient way time-wise, as

well as study-wise. Perhaps as an indication of that, one of the

land management agencies in the west developed its strategic plan

and after they had gone through the whole process of strategy, listing objectives, goals, strategies to get there, then they dropped it

off.

So even in the entire realm of resource management, not just the

EAs or EIS’s, the attitude seems to be we have to comply with our

regulations first and then we’ll go to the states.

As we discussed an overall reinvention, to use that word, with

a group of people that Katie McGinty made reference to, the Institute for Environment and Natural Resources at the University of

Wyoming, another Federal agency said, you know what this really

means is that we’re going to have to rewrite all of our regulations.
31

And I kind of said, ‘‘Well, duh.’’

Mr. POMBO. Thank you.

Mrs. CUBIN. I think that it’s actually my turn to ask questions,

even though I’m sort of not in line over there.

Governor, you just read an excerpt that said that the—to paraphrase—that the different governmental entities shall be consulted.

Now, I think what we ran into with Cave Gulch in the Natrona

County area was that the Federal agencies said, well, we consulted

them in the scoping process and their input in the EIS, but did not

grant them cooperating agency status.

And to me, that—I mean, I don’t know. So Senator Thomas has

a bill that he introduced in September 1997 that includes—there’s

just three words. It says that Federal, state and local entities

should be considered as cooperating status agencies.

Would you agree with that legislation? Would you support it?

Mr. GERINGER. I do. In fact, Madam Chairman, I think it’s the

simplest bill I’ve ever seen.

Mrs. CUBIN. Isn’t it nice?

Mr. GERINGER. It’s about a three-word change to an entire document, and the change perhaps suffers from the disadvantage of

being logical.

Ms. CUBIN. As we recall, it’s usually those 500 pages that pass

just like that and these little ones are a little bit tougher.

Ms. McGinty, do you support that legislation?

Ms. MCGINTY. Let me say I am very supportive of——

Ms. CUBIN. No, no, no, no, no. No. The legislation.

Ms. MCGINTY. The legislation? No, I don’t support the legislation.

Ms. CUBIN. And why is that? Because that seems to contradict

the testimony that you’ve given here today.

Ms. MCGINTY. Well, first, I think as this Congress has said repeatedly, we don’t necessarily need new laws and more laws and

more regulation. The provision that you referred to——

Ms. CUBIN. Your testimony has been that amply provided for and

it’s a question of whether the agencies are implementing that. I

think the Governor can testify that every time an issue like this

has been raised, to me, we have worked to effectuate that provision

of the regulations which gives the states and the counties a seat

at the table.

Ms. McGinty, honestly, I can tell you firsthand that you may

have worked toward that, but the length of time that it takes turns

out to be quite costly for the private entities that are waiting—and

then when the final result comes out, many, many times what the

states, counties and local governments have considered to be pertinent has been disregarded, particularly when we talk about socioeconomic impacts.

But we are going to have a second round of questioning. To me,

it seems extremely contradictory that you can sit here and tell us

how you want all this input, you want this, but then when it comes

down to the nitty-gritty, it isn’t there. It sounds a little disingenuous.

But I’ll get back to that line of questioning on the second round,

because at this time I would like to ask the Governor some more

questions.
32

Do you think or are you aware of circumstances where the

roadless area moratorium prevents any activities that are needed

and that by not doing, will have an adverse impact on the environment?

Mr. GERINGER. Madam Chair, the roadless moratorium through

the U.S. Forest Service has a more far reaching effect than what

has been publicized. I think the first group that we heard from, or

heard about, was the timber industry. We’ve seen already limitations on our state agencies that oversee wildlife management, resource management, such as stream gauging for water, the opportunity for recreation and hunting.

The impact on the full range of activities on the lands and management as far as the environment goes is more significantly impacted than just the timbering industry, although that’s been the

only focus.

So the decision of the chief of the Forest Service to impose a moratorium probably is subject to his own NEPA requirements. I don’t

think he thought beyond just the impact of building roads for timbering. What we see through the roadless moratorium are effects

that more significantly impact other areas than just timbering.

Ms. CUBIN. How does NEPA or does NEPA, in your opinion, address the socioeconomic impacts on local communities and does this

moratorium have an effect on local communities and, if so, what is

that effect?

Mr. GERINGER. Well, the moratorium has, with other examples,

the general trend among the Federal agencies is to say that social

and economic impacts are not a part of the environment, and that’s

why I made the reference, Madam Chair, in my remarks to the fact

that when it comes down to it, poverty and loss of community are

definitely part of the human environment, which were mentioned

consistently in the Act and in the regulations.

Impact on inter-generational sustainability, all those are issues

that involve an interrelationship. Even the CEQ regulations acknowledge that there is an interrelationship between environmental and economic issues.

I certainly heartily endorse what Chairwoman McGinty has said,

that that relationship between economic, environmental, and social

issues has to be recognized.

Ms. CUBIN. Do you think it has been in the past?

Mr. GERINGER. I think it’s been—because the pendulum tends to

swing one way or the other. At first, there was a tremendous swing

toward just environmental protection.

Ms. CUBIN. And what time-frame would that have been in?

Mr. GERINGER. That was back in the late 1960’s, early 1970’s.

And now, with the advantages that have been gained through that,

that’s been overshadowed by a swing that needs to return back to

more of a neutral position, where there is a balance between limitations on economic activity.

It’s as though humans are not a part of the environment and I

think we ought to recognize that they are.

Ms. CUBIN. One last question, very quickly. Are grazing permits

in your state, in our state, being renewed or delayed by NEPA and

what effect is that having on the economy for the entire state?
33

Mr. GERINGER. As with anything, if there is a delay in the permit

processing or application, you miss the timing of an event.

Ms. CUBIN. So there are delays?

Mr. GERINGER. There is definitely an impact on how that applies.

Ms. CUBIN. Thank you very much. Congressman Chenoweth.

Ms. CHENOWETH. Thank you, Madam Chairman. Ms. McGinty,

last time you were before the Committee, we discussed the American Heritage Rivers Initiative. That was September 24th of last

year. You testified that the initiative’s authority lies in Section

101(b)(4) of NEPA.

I have a copy of NEPA and I have studied that pretty carefully.

I asked for a legal analysis as to why you believe that that section,

which simply lays out the policies and the goals of the Act, why

that would have any actual authority in it.

As I read it and as other attorneys have read it, it has none

whatsoever. I have not received that legal analysis yet and so I

would very much appreciate receiving that.

Ms. MCGINTY. Thank you, Congresswoman. And in addition to

other venues where we have discussed this, that analysis, of

course, is fully laid out in our responsive brief to your brief in the

lawsuit you filed against us and that the court has dismissed.

Ms. CHENOWETH. That is being appealed. But I asked for a legal

analysis to be sent to the Committee.

Ms. MCGINTY. Sure. Happy to do that again.

Ms. CHENOWETH. So if you would do that. You also indicated in

your testimony here that there was some language involving emergencies and exemptions in NEPA.

Ms. MCGINTY. Yes.

Ms. CHENOWETH. That would allow forest supervisors to be able

to exempt certain environmental processes under NEPA.

Ms. MCGINTY. Design wholly new processes that fit the emergency situation at hand, yes.

Ms. CHENOWETH. Where is that located in NEPA?

Ms. MCGINTY. It is in the regulations and I would have to respond for the record in terms of the exact provision in the regulations. But any natural resource manager can approach CEQ and

say I have an emergency situation on my hands, I propose these

emergency procedures.

Ms. CHENOWETH. So it’s not in the law? It is? OK. It’s in the

Code of Federal Regulations.

Ms. MCGINTY. The Code of Federal Regulations, yes.

Ms. CHENOWETH. All right. And it’s also in the National Forest

Management Act, too.

I wanted to ask you several questions and they’ll go pretty quickly. Included in your funding request before Congress are funds

needed to support the American Heritage Rivers Initiative, isn’t

that correct?

Ms. MCGINTY. Well, we do not have a specific line item on that

initiative. It is part of our overall effort to reinvent the way that

environmental programs are implemented.

Ms. CHENOWETH. Did you know that Section 624 of the Treasury

Postal Act states that no part of any funds appropriated in this or

any other Act shall be used by an agency of the executive branch,

other than for normal and recognized Executive-Legislative rela-
34

tionship, for publicity or for propaganda purposes, for the preparation, distribution or use of any kit, pamphlet, booklet, publication,

radio, television or film presentation designed to support or defeat

legislation pending before the Congress, except in presentation to

the Congress itself.

So there are statutes that tend to limit your activities in this

area, is that not correct?

Ms. MCGINTY. Yes. Congresswoman, I am aware of that statutory provision.

Ms. CHENOWETH. Let’s look at the compliance with Section 624

of the Treasury Appropriations. We’ll focus first on the publication

and distribution of literature, even though that is only part of the

prescription of the statutes.

You have distributed editorials, articles and feature pieces in key

media outlets and publications that use and reflect the tone of key

messages in this plan. Would you call that a publication or distribution of literature?

Ms. MCGINTY. Well, I will absolutely say that we have engaged

in extensive communication and outreach to the public on the

American Heritage Rivers Initiative, as on any initiative that we

have been involved.

Ms. CHENOWETH. And you’ve flown—you personally have flown

around the country, as well as have your staff, to push the American Heritage Rivers Initiative, to give speeches and to promote the

public support. Is that not correct?

Ms. MCGINTY. I would be hard pressed to think of an invitation

from citizens around the country that we have denied, when they

have asked us to come and visit with them about this program. I

can’t think of one request for information or our personal presence

that we have said no to.

Ms. CHENOWETH. So your answer——

Ms. MCGINTY. We have been there when asked.

Ms. CHENOWETH. So your answer is yes, right?

Ms. MCGINTY. We have responded to the invitation of Members

of Congress or individual citizens who have asked us to come and

answer their questions.

Ms. CHENOWETH. The American Heritage Rivers Initiative program will be costing between five and ten million dollars, is that

not correct?

Ms. MCGINTY. The American Heritage Rivers program will seek

the better coordination and distribution of the programs and resources that are already provided for in a variety of different statutes.

Ms. CHENOWETH. And that amounts to about five to ten million

dollars. Is that not correct?

Ms. MCGINTY. Congresswoman, I would have to respond for the

record because there could be many programs that are better coordinated through this initiative, whether it is—an example I

shared with the Committee before, making available to communities Defense Department software which enables——

Ms. CHENOWETH. That’s not quite the question I asked.

Ms. MCGINTY. Well, I use it only as an illustrative example of

why it’s hard for me to put a specific price tag on it.
35

Ms. CHENOWETH. Well, let me make it easier for you, Ms.

McGinty. The American Heritage Rivers Initiative has a new web

site, is that not correct? And it contains materials, such as speech

materials and so forth, but it does have a web site.

Ms. MCGINTY. Since its very inception, again, as a matter of

being able to have the public have as much information as they

need, from its very inception, we have had a web site.

Ms. CHENOWETH. Is that the publication or distribution of literature?

Ms. MCGINTY. From a legalistic point of view, I would have to

again respond for the record, but certainly the whole point of it is

to provide information to the public.

Ms. CHENOWETH. Let me wind this up. Even using the narrowest

construction of the narrowest section of Section 624, the prohibition, which was signed into law by the President and it is now the

law of the land, right? And since it’s the law of the land, you are

bound by its provisions, right?

Ms. MCGINTY. Absolutely.

Ms. CHENOWETH. Do you believe that one of your responsibilities

is to obey the law?

Ms. MCGINTY. Absolutely.

Ms. CHENOWETH. Even by the very narrowest construction of

Section 624, that prohibition which reaches any activity of the publication or distribution of literature, we have just identified a number of violations of that statute alone.

Can you really say that you’re complying with Section 624? You

did say for the record you were familiar with it.

Ms. MCGINTY. Absolutely and without doubt.

Ms. CHENOWETH. You are complying with it.

Ms. MCGINTY. Absolutely and without any hesitation or doubt

whatsoever.

Ms. CHENOWETH. I do want to say I will let your answer stand,

but I do want to say that, for the record, the case was dismissed

in the American Heritage Rivers Initiative. It will be appealed. It

was dismissed simply on standing and not on the merits of the

case. We will be perfecting the standing issue and we will be back.

Thank you.

Ms. CUBIN. Thank you, Ms. Chenoweth. Mr. Hill.

Mr. HILL. Thank you, Madam Chairman. Katie, I wanted to stay

on this issue of American Heritage Rivers, just for clarification.

When you appeared here earlier, you made a clear statement that

if a Member of Congress wanted to withdraw applications from

within their district, they would have veto power over any application. Do you agree with that earlier statement?

Ms. MCGINTY. Yes, absolutely.

Mr. HILL. And that is still the position of the Administration.

Ms. MCGINTY. A Member of Congress has veto authority over a

river that runs through his or her district, absolutely.

Mr. HILL. I wrote to you in December and again in January asking that Montana be withdrawn. I just yesterday received a letter

from you confirming that the Yellowstone River will now be included. There are other applications pending in Montana. Can I expect that those will receive confirmation that those with also be

withdrawn?
36

Ms. MCGINTY. Congressman, if you are requesting that every

river in your district be withdrawn from the program, as I have

said before, that is your right to do that and it would be withdrawn.

Mr. HILL. Well, let me read to you what I wrote to you, just so

we’re clear about this.

Ms. MCGINTY. Yes.

Mr. HILL. So that we don’t have to exchange more correspondence. In December, I wrote to you and I concluded the letter saying

that I respectfully make the request that the Yellowstone and its

tributaries and other rivers in Montana not be considered as part

of the American Heritage Rivers Initiative. I believe this request

should be honored in light of the above statements.

Your office said you weren’t clear and would you write again.

And so I wrote again January 21st and I opened the letter with

this. I am once again writing to inform you of my request to not

include any of Montana’s rivers as part of the American Heritage

Rivers Initiative. Despite my long-standing statements of concern

and a previous letter requesting Montana not be considered part of

the initiative, I am mystified over your staff’s insistence on the

need of another letter and communication on this issue.

Do you think that that’s clear, in your mind, that I wanted all

of Montana rivers withdrawn?

Ms. MCGINTY. I think I understand fully the question you’re posing, yes.

Mr. HILL. So can I then be assured that Montana rivers will not

be considered?

Ms. MCGINTY. I hesitate to ask this question, but, Congressman,

as I understand it, you are the only Congressman from Montana.

Mr. HILL. I represent all of Montana. And, incidentally, Senator

Burns also asked to be out of the program.

Ms. MCGINTY. The answer is yes.

Mr. HILL. So that’s clear, because these are still on the web site

as being under consideration, the other applications. Will they be

noted and removed?

Ms. MCGINTY. It is clear that you have now and with your letters

previously withdrawn rivers in Montana from consideration. Yes,

sir.

Mr. HILL. Thank you. And as you know, the Committee has had

a great interest in this issue. On February 10, you were sent a letter from Representative Bob Schaefer and 60 other members, including 15 from this Committee, requesting that the Blue Ribbon

panel of experts on the American Heritage Rivers, which is to be

named, I guess, will hold a day of hearings in Washington at its

regularly scheduled meeting.

What decision have you made to accommodate that request for

public hearing in D.C. by this panel of experts?

Ms. MCGINTY. Let me say, Congressman, that the whole thrust

and, I think, related to Congressman Chenoweth’s questions, the

whole thrust of this initiative has been public participation and

outreach. You will see no difference as we—in fact, the FACA itself

is about having the public involved in making the decision. It will

be an open process. There will be opportunity for the public to be

involved.
37

I would like, however, to have those FACA members appointed

so that they can also be responsive to you with regard to the details.

Mr. HILL. Thank you. Going over to the NEPA process itself, is

it your view that NEPA requires that the social and economic impacts—aspects, I would put it—should be integrated into the alternatives that are proposed?

Ms. MCGINTY. Absolutely. NEPA is triggered when there is a significance—when a significance action of the Federal Government

will have major impact on the environment. But once triggered, it

calls for environmental, social and economic analyses.

Mr. HILL. And integration.

Ms. MCGINTY. And integration, yes.

Mr. HILL. The point I’m getting at is that these should always

be integrated into the alternatives. Would you agree with that?

Ms. MCGINTY. I absolutely agree, yes.

Mr. HILL. Have you spent any time looking at the Interior Columbia Basin study?

Ms. MCGINTY. Some.

Mr. HILL. And the proposed management plan. One of the complaints about that, and, frankly, I mean, I think widely accepted,

is that the social and economic impacts have not been integrated

into the alternatives.

As a matter of fact, what has happened is that the alternatives

have been analyzed in terms of their impact on the social and economic considerations, and that’s a substantial difference. Would

you agree?

Ms. MCGINTY. I would agree and would be happy to pursue it

with you. I am not as familiar with those details, though.

Mr. HILL. And going to the road moratorium. Do you believe that

the road moratorium is subject to NEPA?

Ms. MCGINTY. In fact, there is a NEPA process underway on the

road moratorium proposal, yes, sir.

Mr. HILL. And the social and economic impacts would be considered as part of those integrated into the alternative that has already been selected.

Ms. MCGINTY. I very much believe that the social and economic

impacts should be considered. Now, I will tell you——

Mr. HILL. No. Integrated. We said earlier integrated.

Ms. MCGINTY. I want to share with you what I think is a problem and it has been an issue over the years, and that is whether

or not social and economics get into environmental assessments, as

well as EIS’s. It’s my view that they should and I would just share

with you that I think it has not been the practice that the social

and economic concerns are as fully integrated into EAs as they

have been in EIS’s, and I think that that’s an area for change and

improvement.

Mr. HILL. Madam Chair, if I could just ask one more question.

In the process of the development of this road moratorium, did you

have discussions with Chief Dombeck with regard to the NEPA aspects of this and the advisability of this policy?

Ms. MCGINTY. I did have conversations with him on both the policy overall and the NEPA application, too.

Mr. HILL. And when did you initiate those discussions?
38

Ms. MCGINTY. I would have to respond for the record, but I certainly did have several conversations with the Chief.

Mr. HILL. Could you give us an approximate time when you

think—you had several conversations.

Ms. MCGINTY. Yes.

Mr. HILL. But do you have an idea of when the first one might

have been?

Ms. MCGINTY. In the fall perhaps.

Mr. HILL. Fall of 1997?

Ms. MCGINTY. Late fall perhaps of 1997, just before Christmas.

Mr. HILL. I find that interesting because Chief Dombeck, in his

testimony, advises that he had no conversations with you with regard to the road moratorium issue.

Ms. MCGINTY. Well, I would have to see what specifically he was

referring to, but I was apprised. I did discuss with him the road

moratorium.

Mr. HILL. Thank you, Madam Chairman. Thank you.

Ms. CUBIN. The gentleman from Utah, Mr. Cannon. That’s OK.

I was going by seniority, but if you two can work it out. The gentleman from Nevada, Mr. Gibbons.

Mr. GIBBONS. I appreciate your kind consideration.

Ms. CUBIN. I’m just trying to fair to you.

Mr. GIBBONS. And the senior gentleman from Utah that’s also

here. Ms. McGinty, I just want to followup with what Mr. Hill said

about the American Heritage Rivers Initiative. I also sent you a

communication, a letter requesting an exemption from all rivers in

the 2nd District of Nevada. The 2nd District of Nevada is 99.8 percent of the territory of Nevada, except for the downtown urban

area of Las Vegas, which has no rivers.

I have yet to hear back from you on our request. Can I assume

then, because of our request for exemption, that no river in that

area of the 2nd District of Nevada will be included?

Ms. MCGINTY. Yes, sir.

Mr. GIBBONS. Thank you. All this talk about consultation with

states over environmental projects and actions that are taking

place and local governments, would you sort of balance out, for my

education, Yucca Mountain in Nevada and the DOE’s action and

state consultations?

Ms. MCGINTY. Yes, sir. In terms of what the state consultations

that have been had or have not been had, I am not aware of the

details with regard to that specific issue. But I think the issue is

very illustrative to come back to the legislation that Congresswoman Cubin had raised.

I would think some members of the Committee might give cause

to the notion that the county in this case in Nevada would have

decisionmaking authority, for example, as to whether Yucca Mountain would go forward.

Mr. GIBBONS. Or even the State of Nevada.

Ms. MCGINTY. Or if the State of Nevada would have that kind

of authority and, therefore, might want to take a second look at the

proposed legislation. I think Yucca Mountain is a very good example as to why a broad-brush approach doesn’t necessarily serve everyone’s interest.
39

Mr. GIBBONS. In other words, what you’re saying is the State of

Nevada should have no say in this issue.

Ms. MCGINTY. No. I would say very strongly that the State of

Nevada should. I am just suggesting that some members of the

Committee may have some pause about that, given the legislation

that’s been introduced, for example, to override the state’s views on

the Yucca Mountain issue.

Mr. GIBBONS. Ms. McGinty, moving on, what actions are you specifically taking to expedite the time delays between the time an environmental impact statement is asked for and the time it is granted and the permit is granted? Today we are seeing numerous

years, hundreds of thousands of dollars expended, jobs at risk in

order for many industries to get a permit.

Ms. MCGINTY. Yes.

Mr. GIBBONS. And it is an unreasonable—in fact, it’s an indefensible practice to delay, delay and delay. I want to know what you

are doing to change that and I would like you to tell us what a reasonable period of time would be for you to issue a permit.

Ms. MCGINTY. Well, sir, first of all, I do not issue permits, but

let me respond to the thrust of your question. First, I have begun

to resurrect that part of the regulations which gives the permitees

the right to negotiate a NEPA schedule, so that there would be a

schedule that is agreed upon.

Another initiative that we have begun and related to that is that

there would be performance indicators for an agency, which indicators would include how many times have you granted a permitee

the right to negotiate a schedule with you.

Related to that, I want to come back to one of the suggestions

that Governor Geringer had made, because I think it’s one of the

most important new phases of natural resources management, and

that is the idea of adaptive management. Get on with the process,

get on with the project now, with the idea that you monitor it and

you can change course if need be down the road, but don’t wait

until the perfect documentation or the perfect scientific thesis is

written.

Mr. GIBBONS. Well, what problems I see in all of that proposal

about a negotiated time schedule is that it holds agencies and industries hostage. It holds them hostage because only those that can

afford to pay will get an expedited EIS.

The cost of these EIS, environmental impact statements——

Ms. MCGINTY. Yes. Yes.

Mr. GIBBONS.——is an enormous burden that ends up being delayed and delayed throughout the practice. I just wanted to get an

estimate of the time you thought would be a reasonable time and

I see that that’s a little bit complicated to come up with a direct

answer.

And I just wanted you to also look at this picture, that is the

Dixie National Forest in Utah, and take out the meadow that you

have there in the foreground and put Lake Tahoe in it and it will

show you the same theme, the same picture, with a lake in the

middle, that has beetle-infested, fuel for a dangerous, disastrous,

deadly forest fire, and would ask that if we come before your agency to show you the same conditions, will you grant that agency

emergency waiver status to deal with that problem?
40

Ms. MCGINTY. If the Forest Service comes forward, as you’re suggesting, with an application for emergency procedures, we would sit

down with them immediately.

Mr. GIBBONS. So it’s not the forest manager.

Ms. MCGINTY. It can be the forest manager. It can be the person

who is on the ground, the forest supervisor. Yes. I think that, in

fact, was the case in Texas. We deal with the people that were

right there on the ground.

Mr. GIBBONS. That’s what I want to get. I just want to find somebody that I can go to.

Ms. MCGINTY. Yes.

Mr. GIBBONS. That’s identifiable. I don’t want a big, broad agency. I want the manager of this forest to come to you and if I can

do that, you will grant him an emergency waiver.

Ms. MCGINTY. I would have to work with him or her on the specifics of it. It’s not a carte blanche, but it is—there is an opportunity for emergency provisions in the statute and I would be very

happy to work with that forest manager if there is an emergency

situation, yes.

Mr. GIBBONS. I see my time has expired, Madam Chairman.

Thank you very much.

Ms. CUBIN. Before I recognize Congressman Cannon, I do have

to make a point, since you brought up the cooperating agency status and said that Yucca Mountain might be why the Thomas bill

is not needed.

I have to point out that because an entity or a governmental entity has cooperating agency status does not mean that they can direct unilaterally what the result of the EIS or the EA or the recommendation will be.

So they are just at the table and have a bigger role. So I think

that your statement supports my position.

Mr. Cannon.

Mr. CANNON. Thank you, Madam Chair. Gale, it’s nice to see you

again, and, Governor and Ms. McGinty, I appreciate your testimony and the answers to the questions so far.

I am motivated a little bit by the gentlemen from Nevada and

Montana who have asked you about their states being exempt, but

unfortunately, I just asked my staff, we have not sent a letter asking that my district be exempted from the American Heritage Rivers Initiative.

I’m wondering if we can do that here just by my asking you.

Ms. MCGINTY. If you are asking that rivers in your district be

withdrawn from consideration under this initiative, I hear that and

you have every right to do that and they are withdrawn.

Mr. CANNON. As the head of the CEQ, you have the authority to

put my mind at ease here on record with that, right?

Ms. MCGINTY. I’m happy to followup with a letter to this effect.

But it is a provision within the initiative itself that a Member of

Congress can withdraw rivers in their district from consideration.

Mr. CANNON. Thank you. I appreciate your doing that. If you

would like to follow that up with a letter, I would like to get the

letter. I’m still waiting for other things, I would remind you, from

your agency.
41

You heard Congressman Hansen vent a little bit. I would like to

go back over some of his concerns and actually hear what you think

about that.

He characterized your discussions through e-mail with the solicitor of the Department of Interior, Solicitor Leshy, as agreeing that

if an agency starts the process, then NEPA applies, but if the

President starts the process, NEPA may not apply. Do you think

that’s a fair characterization of the law?

Ms. MCGINTY. I think it’s actually a very important principle of

law that Presidential action, whether it’s NEPA or very many other

statutes, those statutes don’t apply to Presidential action, military

defense, the international trade. The President is given prerogatives to act on behalf of the interest of the——

Mr. CANNON. In the case of the Antiquities Act, where you have

a non-delegable authority, I think that was the context in which

this discussion took place and the e-mails between you and your

staff and Mr. Leshy and his staff.

Is that a fair characterization that, in fact, if the President starts

it, it’s possibly exempt from NEPA, but if the agency starts the

process, then NEPA applies?

Ms. MCGINTY. It is absolutely the case that NEPA, again, as

other statutes, do not apply to Presidential action. That is absolutely the case. And it’s also absolutely the case, as you are suggesting, that should an agency initiative a process to declare—that

would lead to the declaration of a national monument, I would

have to respond for the record on that, where the lines are with

NEPA’s application or not.

Mr. CANNON. First of all, I’m just asking you about the characterization of the e-mail that went back and forth, which I know you

read because you responded to the press about that. Is that a fair

characterization of what went back and forth between your office

and Mr. Leshy’s office? That characterization being that the agency, in this particular case, under the Antiquities Act, begins the

process, then it’s subject to the requirements of NEPA.

Ms. MCGINTY. I do believe that is right. I would have to review

the e-mail in question, but I do believe it is right. It is absolutely

the case that NEPA does not apply to Presidential action. I believe

what you are saying is right with regard to agency action.

Mr. CANNON. You’re a lawyer, as I recall. Is that right?

Ms. MCGINTY. Not licensed to practice in any state of the union,

however.

Mr. CANNON. Have you ever practiced law?

Ms. MCGINTY. No, I haven’t. I went to law school. I worked for

various firms during my summers in law school, but I have never

practiced law.

Mr. CANNON. Did you look at this issue legalistically? I mean,

lots of e-mail went back and forth and, in fact, many of those emails were, I believe, authored by you, saying that you needed the

President’s—a letter from the President to initiate the action so as

to avoid NEPA.

Did you look at those letters as a lawyer or as a non-lawyer?

Ms. MCGINTY. Actually, the action was initiated prior to the

President’s letter. The action was initiated in the President’s personal conversation with the Secretary of Interior. I believe on——
42

Mr. CANNON. We had an oral communication here, an oral interaction between the President and the Secretary of Interior. I heard

that in the press that you said that. I wondered if that was actually an accurate quote, but that was not my question.

My question was, as you sent those letters, those e-mails saying

that you needed a Presidential letter to start the process, were you

doing that legalistically? Were you thinking as a lawyer or were

you taking advice from other lawyers, either at CEQ or at Interior?

Ms. MCGINTY. No. I was fulfilling the President’s directive to me

that he wanted the process initiated to review whether a national

monument pursuant to the Antiquities Act could be established in

this area. Again, because of his grave concern about legislation that

was pending on Capitol Hill that he——

Mr. CANNON. But you have not answered the question. Pardon

me. I’m just wondering, when you authored those letters, when you

said we need the—you said this several times, as I recall, we need

the President to sign a letter, were you thinking then as a lawyer

or were you acting on advice of other lawyers?

Ms. MCGINTY. I was acting at the direction of the President to

try to fulfill his directives that he wanted this process engaged and

a——

Mr. CANNON. With all due respect, Ms. McGinty, the e-mail was

very clear that you were going to the President with this idea and

that you wanted to go with a letter, not at his oral direction.

Ms. MCGINTY. If I recall, if I am thinking of the e-mail you’re

talking about, that e-mail was to the staff secretary. The function

of the staff secretary in the White House is to secure the President’s review of documents, often that he has requested, and to secure then his signature of those documents.

That is the e-mail that I believe you are referring to. The President requested the action.

Mr. CANNON. No, no, that is not. There are e-mails between you,

I believe, and I believe it’s the Interior Department and other

members of your staff, not the document controller of the President. But, still, I’m wondering, did you act as a lawyer when you

did that or whose advice—did you get counsel as to that issue and

if so, whose counsel was it? That is, legal counsel.

Ms. MCGINTY. I was only fulfilling the President’s request of me

that the Interior Department engage in the analysis required

under the Antiquities Act to inform his decision as to whether or

not——

Mr. CANNON. And when did the President give you that direction?

Ms. MCGINTY. It was around the time that he spoke to the Secretary of Interior, so around July 4 of 1995 or 6. Six, I suppose.

Mr. CANNON. May I have an additional 5 minutes to continue

this line of questioning or would you prefer that we come back?

Ms. CUBIN. Actually, Representative Cannon, we are going to

have two rounds and so if you wouldn’t mind coming to that next

time.

Mr. CANNON. Yes, thank you.

Ms. CUBIN. And besides that, it’s my turn, since Representative

Pombo left, so hey.
43

Ms. McGinty, you made it very clear and I don’t argue this point

because I am not an attorney and I don’t know, but that NEPA

does not apply to Presidential actions.

Ms. MCGINTY. Yes, right.

Ms. CUBIN. But isn’t the purpose of NEPA, in spirit, if not in the

word of the law, to protect the resource? It’s yes or no. I mean, it’s

to protect——

Ms. MCGINTY. In part, I’d say—as we’ve been talking about before, there is an environmental component of NEPA, but it’s broader. I think, to use current buzz words, it’s about sustainable development is what NEPA is about.

Ms. CUBIN. Fine, fine. OK. So now, to quote NEPA regulations,

this is the quote, ‘‘Major Federal actions significantly affecting the

quality of human environment are situations where the NEPA

process should be triggered.’’

Ms. MCGINTY. Yes.

Ms. CUBIN. Now, isn’t it, again, a bit disingenuous to say, well,

the President doesn’t have to—or NEPA doesn’t have to be applied

to Presidential action, when, in fact, that is what the purpose of

NEPA is? Whether it’s strictly spelled out in the law or not, because what the law actually says is that the lead agency should

identify potential cooperating agencies.

I mean, basically, if, in fact, the letter of the law wasn’t violated,

isn’t the spirit of the law violated in this situation? Because certainly there are enormous impacts to people by Escalante.

Ms. MCGINTY. I think—and related to Mr. Cannon’s point, there

are very few areas where the prerogative, through legislation,

through tradition, through the Constitution, is retained specifically

and exclusively by the President of the United States solely.

In almost all instances, the authority is delegated to the agencies.

Ms. CUBIN. And this is considered an emergency, is that—I

mean, the timing has been brought into question, that it was done

for political gain, and this was considered an emergency that, even

while people were being told this is not going to happen and other

folks were being loaded in buses in Colorado to drive them down

to Arizona, to make this announcement—I mean, come on, Katie.

Ms. MCGINTY. Well, I would not say that this is an emergency

in the sense of some of the other issues we’ve been talking about

in terms of fires breaking out. We certainly were, and had communicated to the Congress, gravely concerned about the legislation

that was moving on Capitol Hill, but it is true that the Antiquities

Act relegates certain powers and prerogatives to——

Ms. CUBIN. I understand that, but that doesn’t direct—but that

does not answer the question that I am trying to get answered. So

let’s just move on.

Like the others, I would like to have it on the record that we

wrote a letter to CEQ and all of the rivers within the State of Wyoming are not to be included in AHRI. Thank you.

One thing I have to say, though, is that I thought it gave me reason for pause when AHRI was sold as going to be, you know, local

people are going to make the decision, even though we have a river

navigator that isn’t answerable to anyone except the political person who appoints him. But local people are going to be the ones to
44

make the decisions and yet it’s Federal people who are knocked out

of the process when rivers are withdrawn from consideration.

That just gave me reason for pause.

Ms. MCGINTY. Of course, if there were local opposition, that

also—significance local opposition, that is one of the criterion on

which an application is judged. There has to be a demonstration of

strong and broad-based local support.

Ms. CUBIN. One thing that we have had a problem with in my

state, as well as—during a NEPA process, as well as the Federal

agencies working with the state to get the process completed in a

timely fashion, we have had a horrible problem with the disagreement between Federal agencies, between the EPA and the BLM

and things like that.

Do you think that the CEQ has a role in establishing a policy

whereby different Federal agencies cannot get my constituents in

a deadlocked, money-losing situation?

Ms. MCGINTY. Yes, and——

Ms. CUBIN. And are you working on that? I know at one time you

were working to streamline the process, but then I heard that you

stepped away from that. So what is the status on that?

Ms. MCGINTY. The answer to the first part of your question is

absolutely yes. One of the major and, I think, not well implemented

parts of NEPA is the scoping process, which process requires that

all of the agencies are going to have a piece of this. Any agency is

going to have an issue with regard to a specific project, be at the

table and bring those issues to the fore in the initial stages of the

project.

This is one of the top priorities in the overall reinvention effort

that we had launched. We had——

Ms. CUBIN. But our problem was that the agencies were brought

together, but two Federal agencies disagreed.

Ms. MCGINTY. Yes.

Ms. CUBIN. Which caused a long delay in any——

Ms. MCGINTY. Right. And the point of the scoping exercise is

supposed to be to iron out those differences and find a plan that

everybody can move forward together with.

Ms. CUBIN. Just one last observation, because since I was so

strict with Mr. Cannon.

It was suggested to me, and regretfully so, that sometimes this

Administration appears to promote the Leona Helmsley philosophy

that laws are not for the Administration, but they’re for the little

people, and, you know, when I see things like Escalante and the

American Heritage Rivers Initiative and the questioning that Ms.

Chenoweth brought forward on what the legal role of government

agencies is, it gives me cause for concern.

The Leona Helmsley philosophy ought to be the least philosophy

considered by anyone in government, I think.

Mr. Pombo.

Mr. POMBO. I’ll pass.

Ms. CUBIN. Ms. Chenoweth.

Ms. CHENOWETH. Madam Chairman, I will forego my next line

of questioning, but I would like to submit a letter for the record

from the Central Arizona Project Association, from Robert S.

Lynch, Chairman of the Board.
45

Ms. CUBIN. Without objection.

[The information referred to may be found at end of hearing.]

Ms. CUBIN. Mr. Cannon.

Mr. CANNON. Thank you, Madam Chair. Going back to the American Heritage Rivers Initiative for just a moment. There is some

question about what level of government the CEQ will accept as

opting out of the program for their area.

In other words, you have certainly the Governor, I suspect, may

be able to, and I’d like your response to that. But going down

through, how about county commissioners or mayors or special districts within a town or political subdivision? Have you—where are

we on that?

Ms. MCGINTY. We have not granted the same veto kind of authority to the full spectrum of government officials that you just

mentioned. Certainly we have with Members of Congress and as

this discussion illustrates, there are many such waivers we have

granted.

But very much related to this, an application has to demonstrate

broad-based and diverse local community support before it will be

positively considered.

Mr. CANNON. If a Governor asks to opt out, would you opt out

for the Governor?

Ms. MCGINTY. I can’t—I am not aware of any such request that

we have had. For the most part, the requests have come from

Members of Congress, which we have granted.

Mr. CANNON. But you would weigh lower levels of government in

your process of deciding which waivers should be done.

Ms. MCGINTY. Yes.

Mr. CANNON. Let me just ask one other question on another topic

here. If you look at the picture to the your left, this is an area that

I—I have tracked horses through this area. I grew up and spent

a lot of my youth in my area.

One of the things I find disturbing is there is a group of environmentalists or a thought among some groups that this kind of devastation by pine bark beetles is natural and, therefore, acceptable.

I take it when you earlier said that you had talked about that

with the Forest Service, that is not particularly your view, but I

would like to note that for the record.

Ms. MCGINTY. Well, every specific instance, I think we need to

have the scientists decide the land management—the land managers decide what is the best course. But I will say it is my experience that in almost all instances, the land managers believe that

some management of the resources is necessary, if even just for the

purpose of enhancing its environmental quality. That just leaving

problems fester is not a workable solution.

Mr. CANNON. So you think that this is a mistake that we have

made, the picture that’s represented here of the Dixie National

Forest is a mistake and we ought to be solving that, if we can.

Ms. MCGINTY. Well, I wouldn’t want to criticize the actions taken

by the land managers. I don’t know what the situation has been.

Certainly this is not a positive development that there is this kind

of infestation, no.

Mr. CANNON. That’s what I wanted to hear. Thank you. I appreciate that.
46

Ms. MCGINTY. But, also, there are many and varied causes.

Sometimes it’s lack of management. Sometimes it’s overly intense

management. I think we realize——

Mr. CANNON. Right. We recognize there are all kinds of cause,

but ultimately, I understand you as saying that you think this kind

of infestation shows that a mistake has been made and we need to

do something to correct that. We’re not even talking about what to

do to correct it. Maybe just NEPA, maybe we do other things, but

you think that this is a problem.

Ms. MCGINTY. Well, it could just be an act of nature, too. I don’t

want to cast blame with and blame——

Mr. CANNON. Well, it’s clearly an act of nature. These are bugs

that are killing the trees. That is clearly an act of nature.

Ms. MCGINTY. And I would strongly suspect that it is linked to

management decisions that have been made in the past,

whether——

Mr. CANNON. Clearly you could have cut down a few trees 5

years ago and solved the problem. A few hundred acres would have

solved the problem and that didn’t happen.

Ms. MCGINTY. That may be the case in this instance, but there

are other instances where clear-cutting, for example, has greatly

exacerbated these kinds of problems and given the invitation for

invasive species to come into an ecosystem.

Mr. CANNON. Well, but not this kind of bark beetle, which I think

we understand how it works and we know that you can contain it

if you do that.

Oh, the yellow light is on. Can you tell me, in just a minute, who

was at the meeting on July 4 with the President when he communicated his interests orally about the creation of a monument?

Ms. MCGINTY. The President spoke to the Secretary at a Fourth

of July celebration on—I think it was the Eastern Shore of Maryland, where a Bald Eagle was released, and it was after that—I

think right after that ceremony that the President and the Secretary had a conversation.

Mr. CANNON. Who initiated it, were you there?

Ms. MCGINTY. I was not there, no, sir.

Mr. CANNON. I take it then that Secretary Babbitt told you about

this or was it the President?

Ms. MCGINTY. No. I had spoken to the President about it either

before or after that, but certainly around that same time.

Mr. CANNON. So did the President initiate the discussion or did

Secretary Babbitt?

Ms. MCGINTY. The President initiated the discussion.

Mr. CANNON. And did you initiate the discussion with the President or did he initiate the discussion with you?

Ms. MCGINTY. Well, we had been engaged in an endless number

of discussions throughout the—since the inception of the 104th

Congress, when legislation relevant to these lands began to move,

and as you know, we had a whole series of actions that, yes, I discussed frequently with the President, veto threats, testimony

against the legislation, and ultimately the establishment of the national monument, all of which were related to the same thrust that

we had to, as you know, oppose the legislation that was moving.

Mr. CANNON. Which legislation in particular was that?
47

Ms. MCGINTY. The legislation that would have removed environmental protections from Federal lands in Utah.

Mr. CANNON. I’m sorry. What?

Ms. MCGINTY. I’m happy to provide it for you, but it was sponsored by the Utah Delegation.

Mr. CANNON. Was it the wilderness bill?

Ms. MCGINTY. I’m sorry?

Mr. CANNON. Was it the wilderness bill that Jim Hansen introduced that would have created 2.1 or 2.4 million acres of wilderness?

Ms. MCGINTY. Right. That would have reduced from——

Mr. CANNON. So you felt compelled to do in a regulatory fashion

what Congress deemed not to do.

Ms. MCGINTY. Well, we were successful, I think, in opposing the

legislation, but that didn’t happen, of course, until the final days

of the Congress, because there were still efforts in the appropriations process to deny our ability even to——

Mr. CANNON. Are you suggesting that the regulatory process is

co-equal with the Congressional process?

Ms. MCGINTY. Well, regulations, of course——

Mr. CANNON. As long as you accomplish your objective.

Ms. MCGINTY. Regulations, of course, have the full force and effect of the law.

Mr. CANNON. Of course they do, but they should follow Congressional intent, don’t you think?

Ms. MCGINTY. I absolutely agree with that, yes, sir.

Mr. CANNON. But that’s not what you just said. You said you

were protecting what Congress deemed not to protect or was considering not protecting.

Ms. MCGINTY. No. Congress did protect it, because the legislation

was not passed. So the protections on those lands now remain in

place. The legislation was failed.

Mr. CANNON. The protections remained in place. It was a wilderness study area. With all due respect, that’s a study area, not an

internal designation. Congress has not acted to designate wilderness.

Ms. MCGINTY. That’s right, but Congress has acted to say that

a wilderness study area is managed for wilderness purposes until

Congress acts to change that designation.

Mr. CANNON. The sum of what you’re saying is that you and the

President designated a monument because you know better about

how to designate land in Utah than the Congress does.

Ms. MCGINTY. Well, sir, the Antiquities Act is on the books, has

been on the books——

Mr. CANNON. And was massively abused, of course, in this case.

But was your purpose to beat Congress at our game?

Ms. MCGINTY. I didn’t understand that you were pursuing a

game, sir.

Mr. CANNON. This is the national game done by the founding fathers. We have that authority and you’re talking about usurping

that authority from Congress.

Ms. MCGINTY. No, sir, there is nothing—you have the authority

to designate wilderness areas. That’s right. A national monument,
48

of course, doesn’t designate wilderness areas one way or another.

And, in fact——

Mr. CANNON. It probably does eliminate wilderness areas. That’s

been my position for a long period of time. I think ultimately what

you’ve done to the land is probably wrong and subjects it to injury

that is unconscionable, like the bureaucratic process that doesn’t

work, is done to my home land down in southern Utah and I think

that the approach—if you read the law, you would not have done

so many acres.

That is unconscionable and I think that that will be solved elsewhere. Thank you. Mr. Chairman, I’m finished with my time, and

beyond.

Mr. POMBO [PRESIDING]. Thank you.

Mr. CANNON. But I can’t get over the fact that this is all a matter of oral interaction here at the Presidential level for making

these kinds of decisions.

Mr. POMBO. Ms. McGinty, I did not intend on touching this subject, but since we’ve heard so much about it this morning, I just

wanted to ask. In terms of the American Heritage Rivers Initiative,

how—I’ll just ask you. How can you tell Mr. Cannon that his rivers

are left out just unilaterally?

Ms. MCGINTY. In designing the program, many Members of Congress requested that they have that ability and we wanted to respond positively to that and made sure that as the program was

put together, that that would be an integral feature of the initiative. That if a Member of Congress wanted the rivers in his or her

district opted out, vetoed, if you will, that he or she would have

that right.

Mr. POMBO. I’m one of them who asked, but—and I’m not arguing with individual members having that right. But in looking at

your testimony and what the functions of the CEQ are, I see nowhere in here where it gives you or the Council on Environmental

Quality the authority to make decisions like that.

Ms. MCGINTY. Sir, I am obliged, pursuant to the National Environmental Policy Act, to ensure the coordination of environmental

policy and what this initiative is about is ensuring that the agencies are working together in a way that, on a second thing that is

called for in NEPA, that local communities begin to have a role in

decisionmaking, begin to have an effective voice in decisionmaking

processes.

This initiative is about effectuating that directive and its intent

in NEPA.

Mr. POMBO. It just appears to me that the way this whole thing

is being put together is that it’s not an initiative, it’s a new agency

and you are the head of that agency and are making decisions for

Forest Service, for the Department of Interior, for the Department

of Agriculture, for the National Marine Fisheries Service.

You are now the head of all of those agencies and are making

those decisions. You’re not coordinating the activities of those agencies. You are now the super-agency on all environmental issues and

you are the one who now has been put in the position of making

those decisions.

Ms. MCGINTY. I will assume no decisionmaking responsibility for

any statutory program which is a part of this initiative. For exam-
49

ple, I think it’s the Environmental Protection Agency and the Department of Housing and Urban Development who have the authority to decide who gets a brownfields grant. We hope to have

that integrated into this program, but I will not make those decisions. EPA and HUD will make——

Mr. POMBO. Let’s just use your example that you just gave me

of the Brownfield cite. Is there someone from EPA here that you

just coordinated with when you made the decision that none of the

rivers in Mr. Cannon’s district are going to be included? Is there

anyone from EPA here?

Ms. MCGINTY. Every one of these agencies is involved in this program and I think it’s 13 different agencies cooperating, have already decided that should a Member of Congress act as Mr. Cannon has just done, to withdraw the rivers in his or her district, that

they would be withdrawn. Those agencies have reached that decision as part of putting this initiative together.

Mr. POMBO. And so you are the one who has been put as the

head of this new American Heritage Rivers agency.

Ms. MCGINTY. There is no agency that has been created here.

Mr. POMBO. Who is in charge of it?

Ms. MCGINTY. This is a collaborative interagency effort. There

are, as I said, 13 different agencies.

Mr. POMBO. But who is in charge of it?

Ms. MCGINTY. They’re all working collaboratively.

Mr. POMBO. So no one is in charge?

Ms. MCGINTY. They are reaching decisions on a consentual basis

and we provide the——

Mr. POMBO. Who chairs the meetings?

Ms. MCGINTY. Sorry?

Mr. POMBO. Who chairs the meetings?

Ms. MCGINTY. There are many different agencies involved. CEQ

acts as a convenor of those meetings. Some of my staff are involved

in those meetings. I would say probably at every instance, someone

from my office is involved in those meetings, but——

Mr. POMBO. Do they chair the meeting?

Ms. MCGINTY. They have been more collaborative than the, I

think, question would suggest.

Mr. POMBO. You and I both know if you sit down in a room with

13 different agencies, you don’t sit around a round table and nobody chairs the meeting.

Ms. MCGINTY. If this is helpful, the agencies involved in this will

report to the President through me on what their recommendations

are. They have done that throughout the process and putting the

initiative together. It led to the President’s execution of an Executive Order on this, and that will continues to be the process. But

in terms of the decisions, it is the agencies that are reaching those

decisions on how the project should be developed and implemented.

Mr. POMBO. Maybe I can ask you the question in writing and

have it answered.

Ms. MCGINTY. That’s fine. I’d be happy to.

Mr. POMBO. In writing.

Ms. MCGINTY. Fine.
50

Mr. POMBO. It’s apparent that you really don’t want to answer

it, so maybe if we do it that way, you can have your attorneys look

at it and you can answer it.

But I want to thank the panel for your testimony a great deal.

I know that we kind of got off on a few other subjects during the

panel, but I appreciate your testimony and thank you very much.

Mr. GERINGER. Thank you, Mr. Chairman.

Ms. MCGINTY. Thank you.

Ms. NORTON. Thank you.

Mr. POMBO. I would like to call up the second panel. Mr. Randy

Allen, Mr. Michael Byrne, Mr. Dan Chu, and Ms. Lynn Scarlett. I

would like to welcome the second panel up. Thank you very much.

I am sure you’re all aware of how the light system works. Mr.

Allen, if you are prepared, you can begin.

STATEMENT OF RANDY ALLEN, GENERAL COUNSEL, RIVER

GAS CORPORATION, NORTHPORT, ALABAMA

Mr. ALLEN. Thank you for the opportunity to be here. I represent

River Gas Corporation, a small, independent natural gas producer,

with three shareholders.

We currently operate over 500 wells in Tuscaloosa, Alabama, 114

wells near Price, Utah, and some wells in Wyoming.

Over the past 3 years, we conducted a study of every domestic

coal basin. Every area showing strong potential involves Federal

land. Our future is based on the premise that we will be allowed

to extract natural gas in a prudent fashion from Federal lands.

We are very concerned about the costs and timing of NEPA compliance. In its current form, NEPA can either be a very useful planning tool, encouraging prudent decisionmaking, or it can be used

to block even the most environmentally sound proposal.

How it is used depends solely on the Federal agents who are

making key decisions throughout the EIS. This Russian Roulette is

crushing small companies and driving large ones overseas.

River Gas purchased 128,000 acres of leases in central Utah.

Seventy six thousand acres of those were on BLM land. When we

made the investment, we planned on a certain time-frame within

which we would realize a return. In April 1994, an EIS was initiated for our proposal to develop our leases. We agreed to pay for

it.

The EIS originally was scheduled to be completed in 13 months,

before June 1st of 1995, within a $200,000 budget. It was completed in May 1997, almost 2 years late. We paid $1.3 million for

the effort, $1.1 million over budget.

Some have said that our experience is the Poster Child for NEPA

reform. Whether it is or not, it’s an example of how the current system allows things to go terribly wrong and it demonstrates how

much power is wielded by field level BLM employees without oversight.

Early in the EIS, a small group of BLM employees clearly indicated that they were personally opposed to our project. Over the

course of the EIS, the group manipulated the system to delay the

process. It forced the contractor to back up and repeat work and

forced us to spend a lot of money.
51

They were hoping we would just go away, but we couldn’t. We

had invested our entire future in the leases in Utah and our wells

on state and private land were prolific, indicating vast untapped

reserves under our Federal leases.

For example, in 1997, we paid the State of Utah $2.3 million in

royalty. Our EIS was completed over 9 months ago, yet we still

have not received a single permit to drill on Federal land. That was

as of yesterday. We could have received some today.

The small same group who caused the problems during the EIS

are working on our permits. This being said, most BLM employees

are good to work with. Most of the people are good, they’re honest,

they have integrity, they’re professional, but a small group involved

in the process can cause big problems.

NEPA also is fundamentally good. I think NEPA has done a lot

to promote prudent decisionmaking in the process. I think the industry is better off for it. I think we would be concerned if were

talking broad-ranging sweeping changes to the law, but in certain

instances, it can get out of control.

We need strong oversight during the process. We need to demand

that agencies get control of the process early on and we need to develop a process allowing project proponents to raise concerns during the process.

We need to set maximum time limits on the EIS process; not

only on the entire EIS, but also on critical key points during the

process. We need followup analysis. Many EIS’s are made based on

assumptions of previous EIS’s on how different activities will impact the environment. No followup is done on these assumptions.

So the same effects could be perpetuating themselves over time.

Followup analysis needs to be done.

Also, the employees inside the BLM, for the most part, are overworked, they’re understaffed, and they’re struggling with a very

complex set of rules and regulations.

I would request that in the budget-making process, that there be

at least consideration given to dedicating money to resolving some

of these issues in the field and dedicating employees for that purpose.

Thank you for the opportunity to be here today. I’ve wanted to

tell our story for some time. I hope it helps.

[The prepared statement of Randy Allen may be found at end of

hearing.]

Mr. POMBO. Thank you. Mr. Byrne.

STATEMENT OF MICHAEL J. BYRNE, VICE CHAIRMAN OF THE

FEDERAL LANDS COMMITTEE, NATIONAL CATTLEMEN’S

BEEF ASSOCIATION, WASHINGTON, DC

Mr. BYRNE. Thank you, Mr. Chairman. I am Michael Byrne, Vice

Chairman of the National Cattlemen’s Beef Association, Federal

Lands Committee, and Director of the California Public Lands

Council. My brother and I ranch in a family partnership in northern California and southern Oregon on a fourth-generation cattle

ranch.

Thank you for the opportunity to testify today. I would like to

submit written testimony at this time.
52

I wish to begin by saying that I have no doubt that the intentions behind NEPA were good. The vision encompassed in NEPA

is that all Federal agencies work together to achieve, in quotes,

‘‘productive harmony among our environment, economic and social

objectives, and to give a voice to the various interests represented

in the decisionmaking process.’’

It is my belief that NEPA has fallen far short of these goals in

many respects. In my business, NEPA analysis is considered a broken process because of the endless delays caused by lawsuits and

administrative appeals and the endless new interpretation of what

is needed to fulfill NEPA’s mandates.

Implementation of NEPA with respect to ranching operations has

created a lengthy regulatory maze, imposing a heavy economic burden on the ranching industry.

In my opinion, the NEPA process has become a redundant exercise in document production, resulting in limited, on-the-ground

implementation of resource management, which is robbing the public of its intended benefits.

More importantly, the way NEPA is currently being administered is subverting the whole purpose of the Act. In the original

Congressional declaration of intent for NEPA, Congress stated that

it is the policy of the Federal Government to create and maintain

conditions under which man, and I underscore man, and nature

can exist in productive harmony and fulfill the social, economic and

other requirements of present and future generations of America.

Instead, NEPA has evolved from a national policy designed to

protect the integrity of the environment into an unbridled regulatory apparatus which subordinates the economic needs of the

community to agency preferences for resource preservation. This

situation causes uncertainty and apprehension in the ranching

community.

The livestock industry’s experience with the NEPA process suggests it is time for Congress to clarify its original intent to the

agencies and to the courts so that NEPA can be applied as it was

supposed to be, instead of today’s morass of delay and bureaucratic

red tape.

Currently, qualified range managers are tied up in the office

with paperwork and endless coordination meetings with other

agencies instead of being on the ground managing the resource.

I am not here to argue whether the NEPA analysis should or

should not apply to specific grazing decisions or whether the process is biased toward uses other than grazing. The fact is, most

ranchers are already good stewards of the land and are dedicated

to working within the regulatory constraints of the Act to demonstrate their good management to the American public.

The Forest Service has estimated the cost of managing the forests and completing the NEPA work, as currently interpreted, to

be more than double what the current range management’s budget

is. That means they want $2 for every one to comply with what

they interpret Congress requiring them to do.

Instead of doubling the agency’s budget to fund a broken process,

let’s fix the process. The public’s right to participate in decisions

about the use of its public lands can be accomplished without

spending an obscene amount of money.
53

NEPA has turned into a money black hole for the land management agencies. We are funding a process. The process has taken

control. We are more concerned about complying with a process

than we are about managing the resource or making sure the

American public’s concerns are addressed.

The procedural mechanism of NEPA is in dire need of overhaul.

The following is a list of some of the positive suggestions for

change. Overlap of regulatory statutes should be eliminated and

consistent and coordination with the application of the Act among

agencies should be mandated.

Duplication of regulatory efforts involving multiple agencies

leads to unpredictability and unnecessary costs and delays. The

process should be amended to eliminate multiple analysis of the

same allotment. Under the present system, it is not uncommon for

a rancher to spend over 2 years working with the Forest Service

or the BLM toward the completion of an environmental assessment, only to have the Fish and Wildlife come along and change

everything with a biological opinion, effectively changing the completed EA.

Agencies should coordinate efforts and the Act should be applied

consistently. Under the present system, each Federal agency interprets and applies NEPA differently. For example, one agency can

build a fence almost immediately, but another agency may have to

wait up to 2 years to complete what it perceives to be the process.

Agencies should have the authority to categorically exclude land

management plans and grazing authorization from NEPA. Agencies should also be required to work cooperatively from one set of

data, incorporating all the science necessary to meet the requirements of the applicable regulatory statutes.

The public participation requirement extends the public involvement invitation to anyone interested in any livestock management

action occurring on Federal lands, including small actions such as

fence-building or maintaining range improvements.

This broad-scale public participation ties the hands of ranchers

and range managers attempting to make timely stewardship decisions. The public involvement requirement should be reevaluated

to preclude the interested public from interfering with the minor

decisions at the local level, where the agency land managers have

been trained to make these types of decisions.

The number of frivolous NEPA appeals is increasing, despite the

opportunity for increased public participation in the early stage of

allotment planning process. The result of more appeals is increased

delay, expense, and exhaustive record production that have no positive effects on range management.

For example, under the current grazing regulations, any member

of the interested public may become involved in the decisionmaking

process for any action relating to the management of livestock, including activities such as issuing, renewing and modifying permits

or leases.

In a recent letter from Director Shea to Senator Larry Craig, on

appeals, he has estimated that the cost went from $52,000 in 1994

to over $350,000 in 1997 for just one regional office. This is unconscionable, because these appeals have mostly been denied because

they are without merit.
54

The 1995 Rescissions Act required the Forest Service to come up

with a schedule for completing NEPA. The Forest Service estimates

vary, but they are only at 40 to 70 percent complete of what they

estimated, and, as has been testified to earlier today, the cost has

been enormous, with the production being very slow.

The bottom line is NEPA is a procedural law designed to ensure

that actions of the Federal agencies are balanced between the

needs of man and the environment by allowing everyone to voice

their concerns in the decisionmaking process. Currently, we are

caught up in the process that we are forgetting about the bigger

picture, which is the public lands are being held in trust by the

government for the benefit of all Americans.

Right now, the American public and the resources are not being

well served by the NEPA process.

This concludes my testimony and thank you very much. I will be

happy to answer any questions.

[The prepared statement of Michael J. Byrne may be found at

end of hearing.]

Mr. POMBO. Thank you. Mr. Chu.

STATEMENT OF DAN CHU, EXECUTIVE DIRECTOR, WYOMING

WILDLIFE FEDERATION, CHEYENNE, WYOMING

Mr. CHU. Good afternoon, Mr. Chairman and members of the

House Resource Committee. My name is Dan Chu and I am the

Executive Director for the Wyoming Wildlife Federation.

We are a non-profit conservation organization, composed of over

3500 members, who are united by deep commitment to the protection to wildlife habitat, the perpetuation of quality hunting and

fishing, and the protection of their right to use and enjoy public

lands.

Today I would like to provide our perspective on the function and

effectiveness of the National Environmental Policy Act.

NEPA was established in 1970 to establish the Council of Environmental Quality and to guide Federal agencies in their efforts to

manage for sustainable development and to allow the public to be

involved in the management of their lands and resources.

Our members directly benefit from NEPA because it provides a

forum for local people and local interests to be considered in Federal actions on public land.

We educate and mobilize citizens to be involved in these decisions that affect the public land throughout Wyoming. We view

NEPA as providing Federal agencies a formal process for responding to the public and determining if an action is truly in the

public’s interest.

We believe that the purpose of NEPA is to establish the policy

that all Federal agencies must, No. 1, be responsible to future generations; No. 2, provide environmental equity for all Americans;

No. 3, allow for the beneficial use of the environment without

undue degradation; four, encourage historical, cultural and biological diversity, as well as individual liberty; five, promote widespread

prosperity for all Americans; six, manage for the conservation and

prudent use of our natural resources; and, seven, consider and incorporate public comments and interests.
55

NEPA does not have decisionmaking authority. Rather, its function is to provide a framework for disclosure and sound planning.

NEPA requires that Federal agencies provide the public with full

and adequate disclosure of impacts and effects of development.

Such effects include ecological, aesthetic, historic, cultural, economic or health.

To determine the true impacts of development, an adequate cumulative impact analysis must be conducted. Ultimately, a good cumulative impacts analysis can ensure the orderly development of

our public natural resources under a multiple use mandate.

Although we believe that NEPA is an example of great foresight

and responsibility from Congress in 1970, we also feel that the implementation of this Act can be improved and streamlined. In fact,

the topic of improving and streamlining the implementation of

NEPA was a major topic of discussion for the Green River Basin

Advisory Committee, on which I served as a member in 1996.

In response to a growing number of concerns and appeals surrounding the cumulative impacts on proposed oil and gas development on Federal public lands in Wyoming and Colorado, both oil

and gas companies and environmental organizations asked the Secretary of the Interior to initiate a formal process to help resolve

conflicts.

Secretary Babbitt formed the Green River Basin Advisory Committee, which I will refer to as GRBAC, in February 1996. The

GRBAC was given a one-year charter; to ensure the reasonable development of natural gas and oil, while protecting environmental

and other resource values on public land in southwest Wyoming

and northwest Colorado.

Secretary Babbitt, in cooperation with the states, selected 16

members from the oil and gas industry, conservation groups, state

game and fish agencies, local and state government, and any recommendations forwarded to the Secretary from the GRBAC received the wholehearted support of every single member on that

committee.

One of the issues we agreed to discuss was the use of NEPA.

After much discussion, we reached consensus on some recommendations we felt could improve the implementation of NEPA

and the process of oil and gas development on public lands.

I would like to briefly point out some of the recommendations.

For more detail, I refer you to the GRBAC’s final report to the Secretary of the Interior.

One of the most common issues of concern we discussed was the

lack of interagency coordination in the NEPA process. We recommended, quote, ‘‘improving coordination and communication

among project proponents, affected agencies, and stakeholders, to

reduce adverse comments and time required.’’

Specifically, we all saw a need for Federal agencies to improve

interagency coordination prior to and during the NEPA process. We

all felt that there have been too many instances where one particular development project had resulted in two or more NEPA documents initiated by different Federal agencies.

Such a lack of coordination resulted in unnecessary delays and

inadequate cumulative impact analysis.
56

One complaint we heard from industry is that the NEPA process

results in significant delays. Many of these delays result from a

lack of accurate field data, detailing the status of existing wildlife

and plant communities. We also recognize that industry and environmentalists alike are frustrated with the incompatibility of various Federal agency data bases, often precluding the share of key

biological data.

Another GRBAC recommendation addressed how to improve the

format and content of the NEPA document, while reducing its size.

‘‘Eliminate duplication in data requirements, as well consolidating

and accessing existing data bases.’’

To this end, we recommend that Congress provide additional

funding to Federal agencies for the purpose of consolidating various

data bases to provide accurate and comprehensive biological data.

Another recommendation was ‘‘impact analysis should be based

on scientific and realistic impact assessments, not speculation.’’

This recommendation states that a common need of industry, environmentalists, and management agencies is that of having reliable

and complete databases. Whereas industry strongly believes that it

is not their responsibility to collect baseline data, Federal agencies

have a legal and moral responsibility to the public to conduct a cumulative effects analysis and minimize impacts of the proposed development on other users.

We believe the fundamental problem once again resides with inadequate funding of data collection. For this reason, we support the

Teaming with Wildlife Initiative and believe that it could bring

sorely needed funds to state game and fish agencies to conduct

those baseline data studies.

In conclusion, we applaud the great foresight and wisdom of Congress when they established the National Environmental Policy Act

in 1970. Consolidating Federal agency data bases, improving interagency coordination, investing and filling crucial biological and cultural data gaps, and facilitating early communication between all

resource users can enhance the implementation of NEPA.

Thank you for this opportunity to comment.

[The prepared statement of Dan Chu may be found at end of

hearing.]

Mr. POMBO. Thank you. Ms. Scarlett.

STATEMENT OF LYNN SCARLETT, REASON PUBLIC POLICY

INSTITUTE, LOS ANGELES, CALIFORNIA

Ms. SCARLETT. Yes. I’d like to thank the Chair for convening the

hearing and thank Mr. Pombo for his patience and perseverance

and the committee members for their attention.

As Executive Director of the Reason Public Policy Institute, a Los

Angeles-based think tank, I am not here as a practitioner involved

in the NEPA process, but rather as an analyst who has reviewed

NEPA and other environmental statutes and practice.

Let me offer a few brief comments, first, on NEPA goals and

practice and then perhaps on some propositions for change. NEPA

is unique, in my mind, among environmental statutes in several

ways.
57

First, as several folks have pointed out, it explicitly sets forth a

goal of balancing environmental, economic and social values, not a

dominance of one over the other.

Second, it offers an opportunity for a big picture focus on environmental impacts rather than a single impact focus. Third, it is

not prescriptive, but rather procedural and somewhat general.

As with others, I think that NEPA was laudable in its intent, but

it has not always fulfilled its promise. Specifically, sometimes we’ve

had unintended consequences and, as we have heard much today,

many procedural inefficiencies and some ineffectiveness, and I

want to mention three in particular, which repeat some of what

other folks have said.

First, sometimes balance is absent. NEPA has been used rather

as a tool to delay and stop rather than to improve projects in some

instances, and this has been more evident in some areas, particularly forestry, highways and mining, than in others.

On the other hand, some agencies only reluctantly comply and

don’t integrate NEPA into their plans, the result being that there

is a failure to consider alternatives and a failure to make perhaps

needed environmental improvements in some cases.

Moreover, there is also little meaningful state, local and citizen

participation, as we’ve sometimes heard.

The third problem, again, to repeat, is that it has been time-consuming and costly, sometimes with no clear consequence resulting.

Costs range from a few thousand dollars to, in one instance that

I tracked, as much as $40 million for one EIS. Sometimes the process takes up to 6 years or more. Indeed, sometimes even closer to

a decade. The cost on occasion is over 10 percent of total project

costs, although usually it is much smaller than that.

Documents are long and inaccessible. One study that I looked at

showed that the language in these documents is geared to the typical college graduate or a person with a graduate degree, rather

than the general public.

CEQ is aware of many of these problems, as are agencies, and

they have attempted to reduce cost inefficiencies and improve public participation through some of the reinvention efforts that we

have heard. Some of these efforts, I want to point out, have actually been successful. The DOE, Department of Energy, set up specific goals for reducing its median time for EIS’s and for environmental assessments.

It tracks those costs and, more importantly, actually discloses

those to the public. The consequence is that the DOE has managed

to reduce its average time for EIS’s from about 3 years down to less

than 20 months.

CEQ, as noted earlier, has also embarked on various reinventions, including the use of alternative dispute resolution, as Ms.

McGinty suggested.

Some of these reinvention efforts have been laudable and folks

point to them as a reason for not making any changes. I would suggest that that conclusion is perhaps overly optimistic and there

may be a role for Congress to rethink some of NEPA.

While some agency reinventions have been successful, others are

less so. For example, the Federal Highway Administration, despite

streamlining, still has EIS processes that take many, many years.
58

There is a lack of up front state and local participation, as we have

heard repeatedly; a lack of interagency coordination and cooperation, despite reinvention efforts.

The Forest Service often engages in costly over-evaluation in

order to avoid litigation for fear that perhaps it hasn’t covered all

its bases.

I want to put forth several options to consider, but first restate

five problems and summarize them.

One, there are no clear requirements in the statute for up front

state, local and citizen participation or for the states to play a role

as joint lead agency. Two, there is no mechanism to ensure coordination among agencies. Three, there are no clear requirements to

report costs, length of time to complete EAs and environmental impact statements. Four, there exist substantial continued disputes

over the scope of evaluations; and, five, inadequate attention to

substance.

I see my time is out, but I will just summarize very briefly several recommendations.

One, I think with Ms. Norton, Congress may wish to consider establishing clear conditions and requirements for coordination of

agencies and involvement of states and local governments.

Second, again, with Ms. Norton, I agree that Congress may wish

to establish conditions that would trigger mediation and conflict

resolution. That now occurs, but only in a serendipity and not reliable fashion.

Third, Congress may wish to consider clear requirements for

NEPA costs, timing and results disclosure. That is very uneven

among agencies at this point and what gets reported gets done.

When you have those specific time lines that you report, it has a

tendency to create incentives inside the agency to get things done.

Next, Congress may wish to clarify and set bounds on the concept of significance and, finally, Congress may wish to establish

basic consistency requirements, because the reinvention efforts

we’ve seen to date have been uneven.

In conclusion, fixing NEPA will not fix many of the problems

with how agencies currently try to balance their multiple missions,

including environmental protections, that they face, because some

of the problems are embodied in other statutes.

Nonetheless, there is room for NEPA improvement in a way that

will enhance environmental results, public participation, and reduce costs.

Thank you.

[The prepared statement of Lynn Scarlett may be found at end

of hearing.]

Mr. POMBO. Thank you. Ms. Scarlett, you stated in your testimony that you didn’t believe that the reinventions have solved all

of NEPA’s problems and you’ve come up with a number of suggestions for changes to the process.

One of the things that we’ve spent a great deal of time on, and

it kind of concerns me a little bit, is we talk a lot about the process

of NEPA and how we get through the process, but I don’t believe

that there’s a lot of effort being put forth to does this really do anything for the environment.
59

I mean, we spend a lot of time on the bureaucracy of it and

whether or not the bureaucracy is working, but is it doing anything

for the environment by having this process in place.

Do you have an opinion on that?

Ms. SCARLETT. I think you’ve pointed to an oft reported problem

with NEPA. It is a very much process-focused statute. One of the

things that I suggest might be useful to do is in addition to reporting the costs and the time-frame, I also suggest that it might be

useful to actually require the reporting of results.

That is not now done on a systematic basis and, again, that is

a process, that is requiring reporting of results, but it has a way

of changing the internal incentives that agencies face, making

them more conscious that what this is all about, after all, is not

simply producing a pile of paper, but actually achieving some end

result that in some way improves the particular project that they

were focused upon by incorporating environmental considerations,

social and economic.

Mr. POMBO. Most of the complaints that I have received, that my

office has received over the NEPA process have not been centered

around whether or not they were doing any environmental good.

Most of the complaints that I have received have been over just the

very process of doing it.

I know I’ve had the opportunity to speak to Mr. Byrne on several

occasions before and I know that you’ve gone through—what is it—

a 7-year process with NEPA?

Mr. BYRNE. Yes.

Mr. POMBO. What grand development were you undertaking that

required a 7-year process? Was it a major development that you

were projecting?

Mr. BYRNE. We were trying to maintain a continuing, ongoing activity which had over a 100-year history, with substantially no

changes.

Mr. POMBO. What was that activity?

Mr. BYRNE. Grazing cattle on public land.

Mr. POMBO. So you were trying to get a permit to graze cattle

on public land, a process that had been occurring for 100 years,

and this has taken 7 years to get a permit.

Mr. BYRNE. We’re trying to get our permit renewed because the

courts came out and redefined permit renewal as the major Federal

action, not really the grazing. We were not trying to do any large

activity or project at all, except for what had been occurring there

for 100 years. Except the paperwork part needed to be done again.

Mr. POMBO. So you’ve gone through 7 years, a 7-year process to

have your grazing permit renewed.

Mr. BYRNE. Correct. Plus, everything and anything out there was

analyzed in the process. We are unfortunate. We used to believe we

were fortunate to have live water and that allows us to have habitat and potential habitat for threatened and endangered fish and

plants, et cetera. We also have wild horses, for which we had plans

and developed things, but this analysis put them all together in

one document.

Mr. POMBO. In your experience with this, has it changed your

compliance with environmental laws? Were you not obeying any

environmental laws before you began this 7-year process?
60

Mr. BYRNE. I don’t believe that we are any more in compliance

with environmental laws as they were interpreted then and are interpreted now. What we are doing mostly is preventative type

things, such as keeping the cows out of the riparian area so that

they will not have an adverse effect, because the penalties are so

severe that if it did happen to take a fish by some act, that it

would preclude you ever doing it.

Mr. POMBO. You state in your prepared testimony that we are

funding a process, the process has taken control. Is it your opinion

that if there was a—for lack of a better term—a different process

that we went through, that this could have been done on a much

shorter basis and at a lot cheaper cost?

Mr. BYRNE. Yes. I submit that when you’re analyzing an activity

such as grazing that’s gone on in the same area at the same or less

intensity than it has in the past, that it is a gross misappropriation

of human and financial assets to undertake this type of analysis.

If there was a substantial change, such as a big earth moving

event or a large Department of Defense installation or something

like that, I would concur that you need to do a big analysis, but

to spend this amount of time and money on an activity that has

a 100-year history, to me, is fairly ludicrous.

Mr. POMBO. Mr. Allen, it’s my understanding, from reading your

testimony, you were attempting to develop a number of gas and oil

wells.

Mr. ALLEN. Only natural gas. We’re a methane company.

Mr. POMBO. Natural gas wells.

Mr. ALLEN. Yes.

Mr. POMBO. Did this project that you proposed involve a very

large area?

Mr. ALLEN. The overall area of the EIS study area was about 300

square miles. We had 128,000 acres under lease. That was about

two-thirds of the 300 square mile area. We had not leased the entire 300-square-mile block, but we originally proposed drilling 1,000

wells within that area. Our final proposed action was 601 wells inside that area.

The wells would be spaced on 160-acre spacing, so that would be

four wells for government section, four wells a square mile. Each

well pad would require about one acre. So we would have four

acres of well pad disturbance for each 640 acres of land.

Mr. POMBO. And there was an estimated 600?

Mr. ALLEN. 601 wells were our final proposal, yes. We have

drilled 114 wells to date that are currently producing. We have not

drilled a single well on Federal land. We are producing from land

owned by the State of Utah and by private individuals.

Mr. POMBO. So your entire development would have covered approximately 2,400 acres out of 128,000?

Mr. ALLEN. I’d have to double-check the math.

Mr. POMBO. It’s 600 times——

Mr. ALLEN. Each——

Mr. POMBO. No. Actually, it’s less than that. Six hundred wells

and they’re an acre a well, so it’s 600.

Mr. ALLEN. Plus some acreage to put in roads to the wells. So

a little bit more than that, yes.
61

Mr. POMBO. How many years have you gone through this process?

Mr. ALLEN. We were notified by BLM in February 1994 that we

needed to get through the EIS process before they could allow us

to develop any wells. So we initiated it shortly thereafter. Our first

meeting was in April 1994. The ROD was signed in May 1997,

about 9 months ago, and we have not received a permit yet to drill

a well.

Mr. POMBO. So it’s been approximately 4 years.

Mr. ALLEN. Yes. A few weeks short of that, yes.

Mr. POMBO. Ms. Scarlett, in your understanding of NEPA, with

Mr. Byrne’s case, do you think that the original authors of the legislation intended on this being a major 7-year event when someone

went to renew a grazing permit?

Ms. SCARLETT. It’s hard to get into the minds of people in the

past, but my own sense is that NEPA is increasingly being applied

to very trivial instances. There is another similar example where

when the Forest Service had gone through an EIS process with one

contractor, that contractor pulled out and was replaced. There was

no change in the project whatsoever, but they were then requiring

that new contractor to again go through the EIS process all over.

I don’t think that was what was intended in the original legislation. And that’s one reason, by the way, that I would recommend

Congress considering perhaps better defining what significant is.

Mr. POMBO. So that would be one of the recommended changes,

for Congress to be a little bit more specific about when it intends

this Act to kick in.

Ms. SCARLETT. That’s correct.

Mr. POMBO. Mr. Chu, just briefly, what everybody states and everybody that testifies before the Committee, without exception, always says that they are interested in protecting the environment,

whether it’s the Cattlemen that’s sitting next to you or whoever it

is. They all come in and say that they have no ill will toward the

environment, they want to abide by all the laws, they want to protect our fish and wildlife, our clean air and clean water.

Do you believe that that’s possible for us to do that without going

through a 7-year process to renew a grazing permit?

Mr. CHU. I think so. And I don’t know the particulars of why it

took 7 years, but I don’t know——

Mr. POMBO. They’re in Mr. Byrne’s testimony. You can read that

after the hearing.

Mr. CHU. Yes, I think I will. But if part of that 7-year process

was involved in collecting data or bringing together various laws or

statutes, I don’t know, but I guess the bottom line for us is that

that those are public lands, that there are other public resource

users out there.

We understand that his livelihood depends on that allotment.

But we just want to be ensured that those lands are going to be

adequately managed by the permitee.

I would suggest that if he had a very good record of management

and had a good record of riparian protections and that sort of

thing, then that 7 years could have been excessive.

Mr. POMBO. Do you understand that the more people like Mr.

Byrne that come in with testimony like he has or Mr. Allen with
62

testimony like he has, that the more people that do that, the more

pressure there is on Congress to change these laws? And that with

your goal and with the goal of the other panel members to protect

the environment, that the pressure, political pressure begins to

build and a lot of these laws will lose some of their luster by doing

that?

Mr. CHU. Yes. That’s certainly one consequence. One of the

things that we’ve tried to do help along the NEPA process is we’ve

been working on various land exchange proposals, where BLM land

and private land would be exchanged, and we have sat down with

the land owner, the proponent, and other interest groups prior to

scoping and tried to hammer out a land exchange proposal that we

can all live with before we take that to the BLM, and we believe

that that will greatly expedite the process through NEPA because

what’s going to happen is you’re going to have a lot less controversy, a lot less public acrimony over that particular land exchange, because we’ve hopefully dealt with most of the time bombs

before we’ve even brought it in front of the BLM.

That is one suggestion I would have. One of the programs that

we have in our state is what’s called coordinated resource management and it’s a voluntary consensus effort, where the land owner

or the permitee gets together with other interest groups and talks

about wildlife and livestock management on that particular allotment, and try and come to consensus.

And so we strongly support that kind of process, as well.

Mr. POMBO. So you don’t suggest that that process takes 7 years.

I want to thank the panel for your testimony. We have a vote on

the floor, so I am going to temporarily recess the Committee. This

panel will be excused and when I return, the final panel will have

their chance to testify.

[Recess.]

Mr. POMBO. We’re going to call the hearing back to order. I

would like to welcome the third panel back. First off, I would like

to apologize to you for the delay. Unfortunately, we don’t control

the floor schedule, so we have to kind of do this the best we can.

But I appreciate you sticking with us.

Mr. Leftwich, if you are prepared, you may begin.

STATEMENT OF TIM J. LEFTWICH, SENIOR ENVIRONMENTAL

SCIENTIST, PRINCIPAL, GL ENVIRONMENTAL, INC., RIO RANCHO, NEW MEXICO

Mr. LEFTWICH. Thank you, Mr. Chairman. I appreciate the opportunity to present testimony and appreciate your endurance here

today and hanging with us.

I am speaking on behalf of the National Mining Association. It’s

the voice and single representative of one of America’s great basic

industries.

It’s hard for me to say something that hasn’t been already alluded to today, but I will attempt to make a couple of points about

NEPA and the involvement of various agencies and the interaction

of those agencies with NEPA.

First of all, I’d call your attention to the display, to my left and

to your right. This is a flow chart or a gant chart showing task and

time lines associated with getting through an EIS process. We did
63

this in the throes of four EIS’s that were ongoing simultaneously

in an attempt to get control of the process and understand the

process.

We’ve heard a lot of talk today about issues associated with the

process and I guess I’m going to talk in a little more detail about

that.

First of all, as to time constraints and to time limits, this particular document details about a 36- to 48-month time-frame for an

EIS. Some have gone sooner than that, others about 4 years.

Another issue that’s been alluded to during the testimony today

is the costs. Again, as most of us know, the longer the time, the

more the costs. In these particular examples, the costs have ranged

from one-and-a-half to six million dollars to complete an environmental impact statement for mining activities in the State of Nevada.

There is a study that was recently conducted by Dave Delcor that

I would like to introduce for the record on the mining industry

issues associated with NEPA, and I think that’s illustrative of some

of the points that I’m going to try to make today.

Mr. POMBO. Without objection.

Mr. LEFTWICH. One key issue that is not so much administrative

or regulatory-driven is the role of EPA in NEPA, and that would

take some statutory tinkering to fix. That problem that we have

encountered is that EPA has a mandate to review and comment on

every EIS that’s prepared and that oversight tends to act as an

800-pound gorilla in the closet that the other agencies try to overkill in terms of baseline data collection and the process that’s detailed to the left.

I’m not sure what the solution to that is. One suggestion is to

have EPA involved early in the process instead of coming in at the

eleventh hour; so that during scoping, if they are a party at the

table, since ultimately someone from that agency has to give final

approval of the document.

Another issue that we found particularly troublesome is lead

agency and who is the lead agency as opposed to cooperating and

coordinating that activity. It seems that there is a reluctance on

the part of the lead agency to take responsibility for the process.

We submit that it’s important to agree on a schedule, it’s important

to agree on what the process really includes, and whether all of the

issues that may come before the lead agency really need to be addressed.

We think that can be done in scoping and also agree on at least

taking a stab at a budget, because we find both schedules and

budgets seem to be open-ended with the lead agencies.

Another question that has, I think, caused confusion is when

NEPA is actually triggered. There is an attempt to get agency involvement early on in the process so that NEPA can be formally

triggered and at least start going through the process, as we know

it. There is reluctance, however, on the part of many applicants or

proponents to trigger NEPA until all the baseline work and all of

the data has been collected, and then that gets into a circular pattern of problems with timing.

If someone could flip the other chart over. In going through this,

we have identified four or five specific areas that the NEPA process
64

gets bogged down, and that’s detailed in yellow. Obviously, you

can’t read those from that distance, but I think that the point of

this is that a systematic approach to looking at the implementation

of NEPA identifies where problems occur, where bottlenecks occur,

and where the process just starts going in a loop, and resulting in

long time-frames and additional costs.

We think it’s important for lead agencies to understand their

role, to take the responsibility for guiding the process, to adhere to

a schedule and also a budget. Hopefully, both of those are negotiated at the beginning of the process.

Public participation certainly is a key part of NEPA and we feel

like should be coordinated by the lead agency in the very beginning

to identify issues as opposed to issues being interjected into the

process in the eleventh hour. The ultimate result of that is delay

and additional costs for things that potentially could have been

identified in the very beginning of the process.

That concludes my testimony. I have a more lengthy written testimony that you have and also a smaller version of what we lovingly refer to as the Dead Sea scrolls there, to try to identify what

we think the process entails.

[The prepared statement of Tim J. Leftwich may be found at end

of hearing.]

Mr. POMBO. Thank you. Mr. Loesel.

STATEMENT OF JIM LOESEL, ROANOKE, VIRGINIA

Mr. LOESEL. Thank you, Mr. Chairman. My name is Jim Loesel.

I’m the Secretary of the Citizens Task Force on National Forest

Management. We are a conservation group in western Virginia that

has interacted with the Jefferson and the George Washington National Forests for more than 15 years. We comment extensively on

projects that are proposed in both of those national forests.

Before I was the Secretary of the Citizens Task Force on National Forest Management, I commented on Forest Service projects

for a number of other local groups. I’m one of those people who has

been in the trenches interacting with an agency through NEPA.

At one time, I was a Professor of Political Science at Washington

and Lee University. I still enjoy talking with students. I talk to

students at an international school every year. They are amazed

that Americans have a law like NEPA that allows citizens to interact with government agencies. We are not only allowed to give

them our opinion but that opinion is quite often taken very seriously and it helps shape the eventual decision.

Students from Latin America, Asia, and Africa tell me ‘‘If we

tried something like that, we would be put in jail. There are colleagues of ours that have been put in jail for doing exactly what

it is that you do and have an effect on the outcome of how your

government operates.’’

It’s given me pause to think from time to time how effective

NEPA is as a manifestation of democracy. It’s important. When we

take a look at the big picture, we see all kinds of things that NEPA

does. I’ve tried to outline some of these in my testimony. In America, NEPA brings the public into contact with the agencies, whereas agencies in other parts of the world don’t want to have contacts

with their citizens to talk about resource management. We provide
65

information to the agency and we are able to bring up issues which

the agency would otherwise have missed. There is a function in

broadening the issues put before the agency. We help improve the

quality of the environmental analysis through our participation.

The bottom line is that the quality of the decisions are improved

through our participation.

I have people from the Forest Service that tell me repeatedly

‘‘You and people like you make a difference. Thank you. We don’t

say that very often because quite often you make life for us uncomfortable or you force us to do things that we wouldn’t have done

otherwise. But off the record, let’s say thank you for what it is that

you and people like you do, because, in the long run, it makes a

significant difference.’’

There is, of course, always room for improvement in the implementation of NEPA. I have made several suggestions for improvements in my written testimony. For example, I think there is a

tendency for the Forest Service to use NEPA to look at more and

more discreet, small projects as a result the projects tend to be

fragmented, rather than a ‘‘big-picture’’ look for an area. It has become almost impossible to do larger area analysis through NEPA.

On the Jefferson National Forest, we had Opportunity Area

Analysis, which tended to integrate projects over a landscape or

watershed area, over a 5–10 year period of time. There was great

enthusiasm for this kind of process on the part of agency people,

as well as members of the public, because it helped us focus on an

area and all of the projects to be implemented over a longer period

of time in that area.

If you have a hundred projects spread all over the forest, you

can’t focus. You don’t see the interrelationship among projects. So

I would like to see changes that would allow an appropriate NEPA

analysis at an intermediate level. It worked in the past and should

work again in the future.

Thank you. I will be glad to answer any questions.

[The prepared statement of Jim Loesel may be found at end of

hearing.]

Mr. POMBO. Thank you. Mr. Caldwell.

STATEMENT OF LYNTON K. CALDWELL, PROFESSOR OF PUBLIC AND ENVIRONMENTAL AFFAIRS, INDIANA UNIVERSITY,

BLOOMINGTON, INDIANA

Mr. CALDWELL. Mr. Chairman, before offering my testimony, may

I briefly state my qualifications for addressing this topic. Since

1962, author of numerous books and articles on the subject, and in

1968–69, consultant to the Senate Committee on Interior and Insular Affairs on legislation sponsored by Committee Chairman Henry

M. Jackson.

I was principal author of a 1968 Senate report on a national policy for the environment and introduced the concept of an environmental impact statement to make environmental policy operational. This was not an impromptu addition to Senate Bill 1075.

It had been under consideration for at least a year before its formal

introduction.

We sought the most effective way to make the declaration in

NEPA operational.
66

May I offer three points for consideration by the Committee. One,

as its name indicates, NEPA is a declaration of policy. Two, its procedures are intended to achieve its policy objectives. NEPA is not

essentially a procedural statute. Three, complaints against NEPA

are more properly directed toward misconstrued and insufficient

support in the Congress, the White House and the courts, than to

the Act itself.

Beginning now with point one. NEPA declares a broad national

policy for the environment. Specific goals and principles enumerated in Section 101 are intended to reflect basic and enduring values of Americans.

NEPA has been emulated in nearly half of our states and by

more than 80 nations abroad.

Point two. Contrary to judicial misconstruction, the application of

NEPA is not limited to pro forma procedures. The Congressional

Record and public statements by Congressman Dingell and Senator

Jackson clearly indicate that procedural requirements under Section 102 were intended to force agency compliance with the principles and priorities declared as national policy.

In addition, the Act sought to correct abuses of administrative

action by requiring disclosure of agency plans and projects to all

Federal agencies whose missions would be affected and to state and

local governments and the general public that would bear the consequences of agency action.

Procedures mandated under Section 102, notably impact assessment, apply directly only to Federal agencies and are not comparable to the regulations administered by EPA.

Point three. Criticism of NEPA is more properly directed toward

lack of commitment in the Congress, the White House, and some

agencies, and the courts, than to the Act itself or to its oversight

by the Council on Environmental Quality. The CEQ has been consistently under-funded and understaffed, unable to perform important functions which the Act requires.

In summary, complaints that the so-called NEPA process runs up

costs and delays important projects are not fairly attributable to

the Act itself. Misuses of the impact statement procedure have occurred, sometimes because of agency misallocation of planning

costs; that is to say, pushing actual costs of a project on the impact

statement requirement.

For projects that conflict with Congressional intent, declared in

NEPA, delays and costs required to ascertain a full accounting of

unintended consequences may be justifiable. Congress has the

power to reaffirm and reinforce this important national commitment. The culmination of 10 years of inquiry and deliberations by

successive Congresses, environment may not be the salient issue of

the moment, but our most reliable opinion analysts find it to be a

core and latent concern of the American people.

The Congress would be ill advised to act on the assumption that

the public is indifferent to the values and principles that NEPA

represents.

Thank you.

[The prepared statement of Lynton K. Caldwell may be found at

end of hearing.]

Mr. POMBO. Thank you. Mr. Hutchinson.
67

STATEMENT OF HOWARD HUTCHINSON, EXECUTIVE DIRECTOR, COALITION OF ARIZONA/NEW MEXICO COUNTIES FOR

STABLE ECONOMIC GROWTH, GLENWOOD, NEW MEXICO

Mr. HUTCHINSON. Thank you, Mr. Chairman. I represent the Coalition of Arizona/New Mexico Counties and I’ve had a rather remarkable journey arriving to that position as Executive Director,

having been through the radical environmental movement and actually having been associated with Earth First in the early nascence of that organization.

And I have found myself now at a crossroads, looking at the process that we decide environmental issues on, and that is the National Environmental Policy Act.

The role of tribal, state and local governments was established

under the NEPA and in the late 1980’s, the state and local governments, particularly county governments, began to feel the physical

impacts of reductions of revenue from economic activities on the

Federal lands.

This prompted research into the Federal statutes and regulations, which disclosed the requirements for inclusion of non-Federal

governments in the environmental planning process. But up until

that point, we had not really informed ourselves nor been informed

of the ability for us to participate.

Years of no active participation, followed by this keen interest,

caught Federal agencies by surprise. If the past history of regulatory direction is an indication, the role of non-Federal governments will be defined over a period of years through judicial interpretation.

And I think that’s one of the reasons that I’m here today, is to

have Congress take a look at possible remedies rather than years

of court battles.

One of the major areas of contention at this point, and it was alluded to earlier, was the recognition or being requested by the land

management agencies or Federal agencies to be joint lead or cooperating agencies in actions affecting the environment within nonFederal government entities’ jurisdiction.

A number of conflicts have arisen out of this and I think it was

properly portrayed earlier that those conflicts have not been resolved in favor of local governments or state governments or tribal

governments and a number of pieces or a number of legal cases

have been initiated as a result of denials of cooperating status.

The administrative appeal process, which is part of that granting

of cooperating or joint lead agency status, usually results in upholding the decision not to grant joint lead or cooperating agency

status. This is usually long after the agency decision is implemented. At this point, the only option left to the counties is Federal

court.

During this delay, the adverse impacts to the local environment

continue and I should stress at this point that it’s the local environment, and it’s not just the economic, social and cultural impacts,

are having tremendous physical and biological adverse impacts.

Federal agencies cannot nor should they bear all the responsibility for the lack of non-Federal government participation, because

the law was there. The county, local governments, state governments, tribal governments could have participated. However, Fed-
68

eral agencies had an obligation to notify them of the ability to participate.

One of the things that was alluded to in earlier testimony was

a discussion about significance, significance of the action itself and

significance of issues that are raised to be looked at in the NEPA

process, and, again, this is an area of conflict.

What we have seen is agencies and local governments disagreeing over the significance of impacts. And just a quick example, in Reserve, New Mexico, which comprises about 400 people, it’s

the county seat, 35 people were laid off from the sawmill when it

was shut down over a Federal decision. Those 35 people don’t

sound like very much, but it was 20 percent of the work force in

that area. And had that occurred in a major metropolitan area,

Congress would have heard a scream that you wouldn’t have been

able to ignore.

But those 35 jobs were very important and, therefore, significant

to that local economy and the significance was ignored because the

statewide analysis was done, and it was a brief one at that, on the

economic impact.

Federal agencies are in gridlock. No responsible official can make

a decision that follows all of the procedural requirements contained

in all the statutes and all the regulations all of the time. Clearly,

Congress has an obligation to bring resolution to this and get uniformity into the decisionmaking process, because it goes across

lines of the National Forest Management Act, Federal Land Management and Policy Act, the Endangered Species Act, the Clean

Water Act, the Clean Air Act, and on and on and on. All of these

have NEPA implications and they all have stops in them, and those

stops are killing us.

Thank you, Mr. Chairman.

[The prepared statement of Howard Hutchinson may be found at

end of hearing.]

Mr. POMBO. Thank you for your testimony. One of the things

that you said in your testimony, Mr. Hutchinson, was that you believed that the local environment suffered in this delay game that

we go through in the NEPA process. Can you give me an example

of that?

Mr. HUTCHINSON. Yes, Mr. Chairman. Apparently—and I’ll just

give you a local example, an on-the-ground example from my area.

The Gila National Forest is a watershed for our local area. We

have had a significance decline in the quality and quantity of water

coming off of those national forest lands.

We identified that as a significance impact. Yet, the Forest Service refuses to even analyze that and in the last forest plan amendments that were run through the NEPA process, they didn’t even—

they barely looked at it. There was a paragraph that was maybe

an inch and a half high on a Federal Register page devoted to any

of the hydrologic cycle impacts.

So these types of things are going on all the time. And then also

the significance of impact to the local economies, to our schools, our

road maintenance. All of those things are cavalierly cast aside as

not having significance and, therefore, do not receive analysis.

Mr. POMBO. Let me ask you this. If counties and states were

brought in as a partner in this process, do you believe that environ-
69

mental issues and local social and economic concerns would be a

part of the final document?

Mr. HUTCHINSON. Absolutely. What started out and was called

the county movement started in the county that I’m from, in

Catron County, New Mexico. I played a part in drafting a lot of our

land use plan and looking at the laws.

I am very proud to say at this point that at least it has reached

this level of recognition in Congress, but also at the state level with

the BLM in the development of standards and guidelines for range

land management in the state.

The state has been granted joint lead agency status. Several

counties who have significant BLM lands have been granted cooperating agency status. And those entities have members on the

interdisciplinary teams actually drafting the NEPA document and

it is making a significant difference in the outcome of the environmental impact statement.

Mr. POMBO. Mr. Loesel, would you support—and I don’t know if

you’ve seen Senator Thomas’ bill, but would you support an idea

of requiring that the states and counties be equal partners in developing the document?

Mr. LOESEL. I have not seen the bill.

Mr. POMBO. But just in general, and I won’t ask you about that

specific piece of legislation because I would not expect you to have

read it.

Mr. LOESEL. I’d have to think about that. I can tell you that

when we were doing Opportunity Area Analysis on the Jefferson

National Forest, it allowed for active state involvement. A number

of agencies found it worth their time to focus on the decisions that

were being made as part of the Opportunity Area Analysis.

I’ve seen a substantial decline in the state’s participation as all

these small decisions become very diffuse. Game and Inland Fisheries can’t keep up with that volume of work to comment.

I can think of two or three other agencies that are no longer at

the table. I’m not certain that it’s a question of a legal requirement.

I think it’s making it attractive for them to participate, to feel their

input is meaningful, and to understand where their input would

have some effect.

Mr. POMBO. If they were included and it was a requirement that

they be included from the very beginning, their impact would be

part of the final work product. It would be required that they be

an equal partner in developing an EIS or an environmental assessment. It would be a requirement that they be involved with it, instead of someone from a Federal agency coming into your state or

your county and saying this is what we’ve decided and we wanted

to update you on it.

It would be, from the very beginning, someone would come in

and say this is what we’re looking at and we want your involvement in this from the very beginning and not someone coming in

from the end.

One of the complaints that I have heard from a number of western states is that their first involvement in it is when the decision

has already been made.

Mr. LOESEL. You mean they weren’t on the scoping list?

Mr. POMBO. No.
70

Mr. LOESEL. That seems hard to believe.

Mr. POMBO. I actually have one particular project in my district

that a community meeting that was held, and a year and a half

after the community meeting was identified as a scoping session.

It was not at any time prior to that ever identified as a scoping session. It was a community meeting that was not attended by the

state officials, the county officials, because it was a community

meeting to discuss planning in one particular area or how they

were going to deal with some environmental problems in one particular area.

A year and a half later, it was identified as a scoping session and

the final document that they ultimately came up with, that was ultimately presented to the county and state officials, supposedly was

drafted from the input that they got at that one community meeting.

Mr. LOESEL. We don’t let them get away with that kind of stuff

in Virginia. I mean, we whip them into shape, I think.

Mr. POMBO. As the Governor testified earlier, I think he would

take issue with what you just said in that he wouldn’t let them get

away with it either, but the way that they do things is not exactly

the same from state to state.

Mr. LOESEL. I recognize that. But I think we have played an important role in shaping how the Jefferson and the George Washington interact with the public.

For instance, as part of the settlement agreement on the appeal

of the Land and Resource Management Plan that was done for the

Jefferson National Forest back in 1985, there was a requirement

that there be an annual conference at which the Forest Service lays

out for the public those projects which are going to be put on the

table in the next year and to provide some background information.

We are very proactive in making certain they tell us what it is

that they want to put out there. If they don’t do that—if they don’t

give us advance information before they do scoping—we’re on their

case.

We make certain that there are extensive lists where people get

notice of NEPA opportunities. It’s hard for me to believe that people who want to be involved would not be on lists—that they would

allow that kind of action to go unchallenged.

The public and officials have some responsibilities here.

Mr. POMBO. There is a very different relationship. Let me turn

to Mr. Leftwich just for a second. Has that been your experience

with this process? Have they been forthright and notified everybody that this is what they were looking at and this is a scoping

session that we’re going to go through?

Mr. LEFTWICH. In some cases, yes, in some cases, no. It seems

to me the problem, though, with scoping is that the agency, particularly the lead agency is reluctant to, at some point, say we have

scoped this. And what has been our experience is that additional

commenters will come in at the eleventh hour in this process over

here on the chart and suddenly you’re back to square one.

So there seems to be the need for opportunity for public participation and then at some point in the process there has to be a time

where that’s it, we have scoped this, these are the issues, and we’re

moving forward. And lead agencies are reluctant, in my opinion, to
71

take that responsibility and roll, primarily because of the litigation

and the appeals process that’s been alluded to all day long.

They feel like they are under a microscope and they’re going to

be sued if some commenter comes in right before the final EIS document hits the streets and raises another issue that requires an

additional study that causes another delay and then you’re back in

the loop here.

So I’m not sure—I think the whole public participation scoping

issue needs to be emphasized and one of the suggestions that I

would make is that Congress and CEQ ask for periodic reports

from the agencies about their implementation of NEPA.

I know of major land management agencies that don’t have

NEPA in their budget. It’s not an identified line item that goes

down to the district level where these projects are actually implemented.

So what that says to me is it’s not a priority, they’re not budgeting for it, they’re not staffing for it, there is not even some basic

management skill sets within the agencies to get through what is

a fairly complicated process.

You throw in the integration of the other environmental laws

that kind of get wrapped into this envelope of NEPA, where you’re

analyzing the Clean Water and Clean Air issues and ESA gets

thrown in and 404 permitting from the Army Corps of Engineers

and a multitude of other environmental laws that have specific permit requirements that are also looked at in the overall context of

baseline information included in a NEPA document.

Again, I think it goes back to who is charged with the responsibility of that process and that’s the lead agency. So there’s two or

three key areas there. I think the public scoping is certainly one

of them and the participation and then putting some sideboards on

the process, and that’s what we attempted to do because we had

so many going on at the same time. We had four.

We didn’t really understand all the steps and the agencies certainly didn’t really understand all the steps, and we’re reluctant to

commit to time-frames.

The CEQ regulations talk about major energy project development and implementation under NEPA not taking over 12 months.

Well, that’s kind of laughable given the time-frames that we’re

dealing with now.

Mr. POMBO. What is the typical time-frame you’re dealing with

right now?

Mr. LEFTWICH. Multi-year, three and a half to 4 years, some as

little as 27 months.

Mr. POMBO. And that’s if there’s not any litigation.

Mr. LEFTWICH. Yes, and that’s not including appeals. There are

certain industry activities, and mining just happens to be one of

those poster child type for the environment, that are appealed

automatically. There are environmental groups in the west that

automatically appeal every NEPA decision that has to do with mining. So that’s a given.

So that is even an add-on to this process that I’ve illustrated

here. When appeal is then issued, the agency is the one who has

to defend their decision and many times they don’t have the legal

resources and/or the technical resources to really do that, and then
72

it falls back on the proponent to help provide that information and

then the industry is criticized because they’re controlling the process.

So you just kind of get into this tailspin here of a loop that you

can’t get out of and I think if we were to sit down and say what

is the really objective here, it’s to analyze the impacts and spend

time, money and people, those resources, to mitigate and to enhance the environment instead of the process, but we’re spending

all the resources on the process.

Mr. POMBO. I think that’s an important point and it is something

that Mr. Hutchinson brought up earlier and that we have had

other people testify to during this hearing, is that we end up

spending the money, the time, the energy on the process and begin

to forget that the reason we’re doing this is for the environment.

What’s the typical cost of going through a NEPA process on a

mine new that you’re involved with?

Mr. LEFTWICH. Of the four that we went through, the least ex- pensive one was about $1.2 million. Another one was $6 million

and the company——

Mr. POMBO. That’s just process.

Mr. LEFTWICH. That’s to get to a record of decision.

Mr. POMBO. You’re not talking about doing anything for the envi- ronment. You’re talking about $6 million of paper.

Mr. LEFTWICH. That’s correct. And what’s deceiving about an EIS

is if I were to bring in a typical mining EIS document, it may be

two or three inches thick. But what most people don’t understand

is the huge amount of research, baseline data work that goes into

compiling—it’s a summary document. If you look at your handout

of the process and the steps there, each one of those baseline studies may be another pile of paper, depending on the issue, ground

water modeling, wildlife, all of those resources that are studied.

And so those become a huge pile of paper there that back up the

document which is really written to summarize the studies and to

make some decision.

Mr. POMBO. Let me turn to Professor Caldwell for a minute. One

of the things that you stated a couple of times in your testimony

was that a renewed commitment to NEPA, additional dollars to

fund it, is what it needs.

One of the problems that we have in looking at this whole process is that you look at a document like he’s got laid out there that

takes three and a half to 4 years, cost $6 million. How will additional money and people and a renewed commitment to the NEPA

process shorten that?

Mr. CALDWELL. Mr. Chairman, I do think the additional funding

would enable the CEQ to more extensively consider these problems.

But let me add that there is a larger problem that hasn’t been referred to and this ties now, I think, to the succession of Presidential Administrations.

Under the Constitution, the President has the responsibility to

take care that the laws be faithfully executed. But we have had a

succession of Presidents that have not shown a very great enthusiasm for the implementation of NEPA.

That does not mean that they have been opposed to it, but NEPA

needs the very clear signal and support from the White House and
73

also an objective kind of inquiry coming from the Congress to see

that the NEPA intent is implemented.

This Act was never intended to produce million-dollar impact

statements nor to require the length of time that some of them

take. We had, I think, the Alaska Pipeline impact statement that

weighed about 50 pounds. Now, these are not to be attributed to

the law itself.

Mr. POMBO. What are they to be attributed to?

Mr. CALDWELL. To the misapplication of law, both in the Congress and the White House.

Mr. POMBO. Do you think that they ever intended for the CEQ

to become a super environmental agency?

Mr. CALDWELL. No.

Mr. POMBO. That would have one person as the head of it and

they would have complete and total control over all other agencies?

Mr. CALDWELL. Well, that is not the case now and it was never

intended to be the case. The reason that the CEQ now has one

councilor, Katie McGinty, is due to what I would regard at least

as a judicial decision that under the Government in the Sunshine

Act.

If the three members of a council have meetings together, attempt to work out policy positions and so on, that those meetings

must be scheduled, there must be notice, and they must be open

to the public.

Now, there are meetings, of course, where public participation is

very desirable, but there are other kinds of problems that—where

a committee needs to work through the issue before it can take an

informed and intelligent position.

So that I do think that it is a mistake to regard the CEQ as a

potential high court for the environment or super agency. My disappointment, I guess, with respect to the CEQ is that it has not

been able to be more effective.

If you look at the section of the law which creates and empowers

the CEQ, there are many things that it has not done, that it has

not been permitted to do, in effect, by under-staffing and by underfunding.

For example, we have had several bills introduced into the Congress, one of them, interestingly enough, by what some people regard as an odd couple, Gore and Gingrich, calling for an estimate

or some kind of a facility in the Federal Government for looking

at or forecasting trends in environment, population and resources.

You would think that this would be a very rational kind of thing

to do, but it never gets anywhere with the Congress. Now, as I

would read Section 202 of the National Environmental Policy Act,

the CEQ could initiate such action if permitted to do so. But

whether it’s permitted to do so depends, I think, very significantly

on Mr. President and on the respective committees of the Congress.

There has been, to me, unaccountable, that there should be in

the Congress such a resistance to any attempt to forecast. By that,

I don’t mean predict. I mean to look at the trends that are occurring in the society, their interactions, to the best of our knowledge,

and draw from them at least certain findings with respect to the

direction in which we’re going.

Now, we don’t do that.
74

Mr. POMBO. You don’t understand why there would be concern?

Mr. CALDWELL. Pardon?

Mr. POMBO. You don’t understand why there would be concern?

Mr. CALDWELL. Well, the Wall Street Journal at one point had

an editorial to the effect that this was going to be a bad idea because it would destroy consumer confidence, that we can’t predict,

we don’t know what’s going to happen in the future, and, therefore,

it would be a waste of time and money.

I don’t agree with that assessment at all.

Mr. POMBO. But when you have government agencies that do

things like this and have this kind of a result, when you talk about

expanding their power to that degree, it obviously is going to cause

some concerns amongst the Members of Congress that the result

will not be a streamlined process, but a much more heavy process

that people have to go through that when you begin to shift everything to the Federal Government, you begin to cut counties and cities out and you begin to say if you want to do anything, you have

to come to these 13 government agencies to get approval.

All of a sudden Members of Congress begin to get real nervous

about doing that. It’s not that anybody is afraid of information. It’s

not that anybody is afraid to find out what the forecast would be.

It’s placing all of that power in the hands of one person who may

have an agenda, who happens to be running one of the agencies.

That’s what the concern is.

Mr. CALDWELL. That certainly was not the intent nor the content.

Mr. POMBO. From an academic point of view, sitting there as a

professor with a great resume, you can say that this would be great

if we had this information. As a policymaker sitting on this side,

I’ll tell you it scares the heck out of me to give that kind of power

to the agencies, because this is not a one-time event for me. I get

people walking into my office every single day from my district

with lists like this or with 7-year processes to get a grazing permit

approved. That happens in my office every single day.

So we have to try to figure out a way to protect the environment

without punishing our citizens the way that we’re doing right now.

Mr. CALDWELL. Well, I certainly agree with what you say, but I

do not follow the reasoning that an attempt to track the trends

that we now have, we can see in our society, to indicate how matters of population, resources, environment interact, and these are

basically human problems, how that is going to create great power

in any particular individual.

Certainly there is nothing, in my view, of that as a policy question that would lead to that conclusion. I mean, the Congress has,

certainly, the power to create whatever kind of institution and to

lay down what groundrules would be desirable.

Mr. POMBO. Let me interrupt you just on that point. You heard

the testimony earlier about the American Heritage Rivers Initiative. That was not a Congressionally approved project. In fact, Congress said no, but they did it anyway. They took that power from

Congress and created that agency anyway.

So to say that we could just sit down and say you guys have to

stay within the rules, well, maybe in theory that’s the way it would

work. In reality, that’s not the way it is working.
75

So there is some confrontation between the legislative branch

and the executive branch in who gets to lay down the guidelines.

I mean, everything that we’re talking about here supposedly is a

law that was passed by Congress and Congress has the ultimate

decisionmaking power, and that’s not necessarily the way it works

in process. The way it works in process is these guys spend 4 years and $6

million coming up with a document that has dubious environmental quality to it and it’s just a $6 million stack of paper. Now,

if you ask Congress, would you rather them spend $6 million on

a stack of paper or actually do something to protect the environment, it would pass out of here unanimously to do something to

protect the environment. But that is not the process that we’re

going through right now.

So anytime we question the process, all of a sudden it becomes

a question of whether or not we want to protect the environment.

It has nothing to do with that. It has to do with six inches of paper

and $6 million.

Mr. CALDWELL. Well, the complaint, it seems to me, there is to

be directed toward the agency that is administering grazing permits or building access roads in the forests. It is not to the National Environmental Policy Act.

We have the Public Land Management Act, we have the national

forest legislation, and those are principal authorities or sources of

authority on which those agencies act.

Now, the power in the executive branch is certainly diffuse. I

would argue for more effective use of the Executive Office of the

President, which was created in 1936, during the Franklin Roosevelt Administration, to provide for a better oversight on the part

of the Executive of the various agencies in the executive branch.

It’s been observed by some students of what the Federal Government does, that some of the agencies have been mandated by the

Congress for particular reasons, for particular interests, to take

certain kinds of action. These are issues that are often popular

with particular Members of the Congress, but they also preclude an

agency decision. If an agency, for example, is the Forest Service,

through some, say, rider to an appropriation bill, mandates a clearcutting of a large area in a national forest, the Forest Service is

bound perhaps to do that, to follow what the Congress has decided.

But many of these issues are not necessarily reflective of public

opinion generally. They may be highly localized in their—both in

their impact and their impetus. I mean, the power and activity that

has brought about this legislation.

So I think it’s a more complex situation than perhaps we

might——

Mr. POMBO. But that’s not—in theory, I understand what you’re

saying. In reality, two years ago or so, we passed the salvage logging bill through the Congress, through the Senate, signed into

law. The executive branch refused to abide by that law and never

implemented that law.

It was passed, it was signed into law. They just decided not to

do it. They didn’t like it. So they never did it. There’s a number

of pieces of legislation that have been passed through this Congress

that because of lawsuits or an agenda of someone within the execu-
76

tive branch never get implemented, and we end up with this kind

of a confrontation between the legislative branch and the executive

branch.

I think that Mr. Hutchinson and what they have gone through,

as they have been extremely proactive in trying to have local community involvement with these decisions.

What Mr. Loesel is describing is having local community involvement and locally based people involved with these decisions. The

way the process currently works, that just doesn’t happen. I’m glad

that Mr. Loesel claims he has not had those problems. I’m happy

that he hasn’t.

If you were to talk to my constituency, you would hear a very different story than what we are hearing from you, because it’s just

done differently in different parts of the country.

Mr. LOESEL. Maybe you need me to come on out there and help

organize some things.

Mr. POMBO. That may scare my constituents more than——

Mr. LOESEL. Yes, it may. Could I answer a question that you

asked initially about mandating through legislation involvement of

states and—help me out with the other aspect.

Mr. POMBO. It was to mandate the state and county involvement.

Mr. LOESEL. In theory, there may be one answer, Practically, I

think there’s not going to be enough money in the county or state

budgets to get involved in all of the decisions. The practical result

of that would be that the process would come to a halt. If it were

structured in such a way that it required their active involvement

and they don’t have the money, then nothing could proceed.

So I would be very careful about developing a process that requires—that wouldn’t work unless their involvement were——

Mr. POMBO. What is the annual budget of the organization that

you represent?

Mr. LOESEL. About $4,000.

Mr. POMBO. And do you participate in the process from the beginning?

Mr. LOESEL. Sure.

Mr. POMBO. And your county that you live in could not come up

with $4,000 on an annual basis to have somebody participate in the

process?

Mr. LOESEL. But there’s a difference. Most of the involvement

from our organization is volunteer. They do it because they want

to. You don’t get that kind of volunteer activity from state agencies

and from county agencies. It doesn’t happen.

Mr. POMBO. Mr. Leftwich.

Mr. LEFTWICH. Mr. Chairman, this has raised an issue that we

maintain is a huge problem with the current implementation of

NEPA. It is that the agencies themselves don’t have the wherewithal to implement this process over here. They don’t have the

technical staff and the management skill sets. They don’t have the

resources, period, in many cases to do this, and that’s why there’s

these huge cost over-runs and it ties back into the process has kind

of gotten out of control.

It’s not just gridlock. They cannot fulfill their mandate to implement NEPA.
77

Mr. POMBO. I understand what you’re saying, but I’m not going

to agree with you, because I happen to be involved with the budget

process, as well, and I would suggest that you take the Interior Department’s budget and look at how much money they get. It’s a

matter of priority. It’s not a matter of whether they have the

money.

Mr. LEFTWICH. I think that’s right. I think that if you talk to

many agencies, it’s not even a budget item at the local level for

NEPA implementation, and yet it’s a requirement of the law.

Mr. POMBO. It’s a requirement, but it’s not a priority.

Mr. LEFTWICH. Yes, that’s the problem. Plus, the process has become so cumbersome, I think that if the process was back streamlined to a reasonable level, that there would be adequate resources

to produce the type of analysis that I think was envisioned in the

beginning.

But it’s gotten so complex and out of hand that, in fact, agencies

themselves, even if they had a budget, would probably not be able

to staff adequately to do the level of detail that everyone in the

world wants done in EIS’s.

Mr. POMBO. Well—yes, sir.

Mr. HUTCHINSON. May I address that point?

Mr. POMBO. Yes.

Mr. HUTCHINSON. The process of involving non-Federal government entities, soil and water conservation districts, counties, states

and tribal governments, we’re talking about specific jurisdictions.

Those entities already have plans and policies in effect.

They already have state statutes and county ordinances that

they are carrying out. The object in the NEPA process is disclosure,

disclosure to the Federal agency decisionmaker what those plans

and policies are.

We’re not talking about giant expense. Certainly, at the onset,

when we got into this process, we had to do some economic analysis. We had to go out and hire some biologists and culturalists, et

cetera, to take a look at it. But this is simply part of the checks

and balances of our system. That’s what those states are out there

for. It’s part of the check and balance system in our Federal system.

So the additional cost or involvement in that is just part of the

way of doing business in our country and most of those budgeted

items are already in there. And as far as our county organization,

we encourage voluntary participation by the citizens in the community on those communities that are bringing this input to the table

for those Federal agency decisionmakers.

Mr. POMBO. Let me ask you a question. You said you’re involved

with local planning in your county.

Mr. HUTCHINSON. Yes.

Mr. POMBO. Did you abide by Federal, state and county environmental laws when you developed your general plan? That’s what

we call them in California, a general plan. Did you abide by the

laws or did you ignore those and just do what you wanted?

Mr. HUTCHINSON. I think I would say that we abided by the principles, because there really wasn’t any guidance for the area that

we were going into. And the type of land planning that we’re talking about, again, is more like a NEPA document. It’s disclosure of
78

the conditions, disclosure of the existing conditions, a reasonable

prediction of future conditions, and will the natural resources that

are there fulfill those needs in the future.

That’s a planning document. You can have social engineering,

which is what a lot of planning documents end up as, or you can

have a planning document that offers disclosure to decisionmakers,

what the conditions are and what the possible conditions in the future are going to be.

That’s the way our document turned out.

Mr. POMBO. Thank you. I want to thank this panel very much.

We could go on the whole rest of the afternoon discussing this. But

I appreciate your patience in waiting for the Committee to get to

you. I appreciate your testimony and answering the questions a

great deal.

There will probably be additional questions that we will submit

to you in writing. If you could answer those in a timely manner,

we will hold the hearing record open for 10 days so that you can

respond to those, but I know that the Chairman of the Full Committee did have some additional questions that he would like to

ask.

Unfortunately, he was not able to get back from his meeting before we adjourned. So I’m sure that there will be additional questions that he will have for each of you.

Thank you very much. The hearing is adjourned.

[Whereupon, at 3:35 p.m., the Committee was recessed, to reconvene at the call of the Chair.]

[Additional material submitted for the record follows.]
79

LETTER OF ROBERT S. LYNCH, CHAIRMAN OF THE BOARD, CENTRAL ARIZONA PROJECT

ASSOCIATION, PHOENIX, ARIZONA

Dear Mr. Chairman:

Thank you for the opportunity to testify at the Committee’s September 24, 1997

hearing on the American Heritage Rivers Initiative and H.R. 1842 proposing to terminate further funding for this new ‘‘program.’’ I hope our reasons for keeping this

spurious adventure out of the Colorado River Basin highlighted the potential for

confusion and duplication of effort we see in the Initiative.

I was troubled by the testimony of Kathleen McGinty, Chair of the Council on Environmental Quality. Specifically, I was mystified by her bald statement that Congress had authorized the Initiative in passing the Policy section (42 U.S.C. § 4331)

of the National Environmental Policy Act (NEPA). My notes reflect that she directly

claimed that Section 101(b)(4) of NEPA constituted Congressional authority for the

Initiative.

My first reaction was: Why did it take the executive branch twenty-seven (27)

years to discover this programmatic directive? Since NEPA is written in mandate

format, how could this have escaped litigation by environmental groups for so long?

Obviously, it couldn’t because the authority doesn’t exist.

My second reaction was that the Supreme Court had dealt with this issue, making

Ms. McGinty’s position even more amazing. I did some research and thought I

should share the results with you as you consider taking action on H.R. 1842.

Section 101 of NEPA neither authorizes nor requires action

The nature of Federal agency obligations under NEPA has been the subject of a

number of Supreme Court decisions. In a nutshell, these opinions say that Section

102 (42 U.S.C. § 4332) contains the procedural requirements of NEPA, the so-called

‘‘action forcing’’ provisions, which are the only requirements of NEPA. NEPA contains no substantive law and invoking NEPA does not interfere with the ultimate

agency decision if NEPA processes have been correctly conducted.

Beginning at least with Kleppe v. Sierra Club, 427 U.S. 390 (1976), the Supreme

Court identified the NEPA ‘‘program’’ as its action-forcing procedural duties under

Section 102. Id., 427 U.S. at 409, n.18. Section 101 has been consistently described

as a set of national goals. ‘‘NEPA does set forth significant substantive goals for the

Nation, but its mandate to the agencies is essentially procedural.’’ Vermont Yankee

Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978); accord, Stryker’s Bay

Neighborhood Council v. Karlan, 444 U.S. 223, 227 (1980). As recently as 1989, the

Court has distinguished between Section 101’s declaration of ‘‘a broad national commitment’’ and Section 102’s ‘‘action-forcing procedures.’’ Robertson v. Methow Valley

Citizens Council, 490 U.S. 332, 348 (1989).

This being the case, no programmatic authorization can be tortured into NEPA

goals. Any such new program must come from Congress.

I hope this analysis is of some utility as you continue to address the Initiative

and H.R. 1842.

STATEMENT OF RANDY L. ALLEN, GENERAL COUNSEL, RIVER GAS CORPORATION,

NORTHPORT, ALABAMA

I am general counsel for River Gas Corporation, a closely held independent operator of coalbed methane wells with approximately 100 employees. Since 1991, River

Gas has purchased approximately 128,000 acres of oil and gas leases within a 300

square mile area in Carbon and Emery Counties, Utah, including 76,000 acres purchased from BLM, 27,000 acres purchased from the State of Utah and the remaining acreage purchased from private landowners. We currently operate 114 wells in

the area, but we have not drilled a single well on our Federal leases.

In February, 1994, BLM notified us that we could not develop any of our leases

until after an Environmental Impact Statement was prepared. BLM was the lead

agency. No other Federal land management agencies were actively involved. One of

my responsibilities was to coordinate River Gas’ limited role in the EIS. We initiated

the process in April, 1994, by submitting a proposal to drill up to 1,000 wells on

our leases. The original schedule called for completion before June 1, 1995, and the

original budget was $200,000. The Final EIS Record of Decision was signed in May,

1997, over 3 years after it began and almost 2 years late. EIS expenses were over

$1.3 million, $1.1 million over budget.

No environmental groups opposed the project. Local sportsmen were concerned

about potential impacts to deer and elk. Most of the opposition came from governmental employees, primarily from within the BLM. Early in the process field agents

of BLM indicated that they opposed our proposal and they would make the process
80

as difficult as possible. As a result, the process quickly became adversarial. Individuals in the same organization that sold us property rights for a lot of money were

actively working to block us from making use of the property it sold us.

Based on our experience, we are concerned governmental agents may retaliate

against us because of my appearance to testify, causing River Gas additional harm.

We would like the ability to return in event retaliation occurs.

Most BLM employees are hard working, conscientious, courteous, fair and reasonable. They sincerely try to do the right thing while handling an overwhelming workload with limited time and limited resources. Their jobs are not easy, particularly

considering the complex and sometimes conflicting directives they must follow. They

have fairly broad discretion to analyze each individual situation on its own merits,

and try their best to issue well reasoned and fair decisions. When these people control the NEPA process it seems to work well.

Unfortunately, there are a few bad apples. Through the free rein allowed by the

current NEPA system, these agents can kill proposed projects by requests for expensive data acquisition, simple stalling, and other tactics described below. The system

is flawed because these actions are allowed to happen without oversight and with

no forum for project proponents to seek timely redress of abuses.

We were fortunate. We survived the EIS process. If we did not control leases on

a block of State and private acreage or had not been backed by larger financial partners, we would have been unable to drill our existing 114 wells. Without our partners and the producing wells, we would have been unable to cash-flow the EIS process. It would have killed us because we had invested our entire future on the Utah

properties. Not all small companies are so lucky and few projects in the West can

be partially developed without accessing Federal land. The uncertain timeframe and

unpredictable up-front cost associated with developing Federal land are forcing larger companies overseas and crushing small companies.

Of equal importance for state and national concern, the vast natural gas reserves

underlying the project would likely never be developed if we had been unable to

withstand the process. In 1997, we sent $2.3 million to the State of Utah in royalties, dedicated for the benefit of Utah school children. If we would have been forced

to abandon the project before it was proven, it would have become tainted and other

companies would have been hesitant to take on the risk. But for a stroke of luck,

Utah school children would have lost a considerable resource and the U.S. taxpayers

would have lost the potential for significant income.

The NEPA process involves four critical steps: (i) identifying significant issues, (ii)

describing what is known about the environment, (iii) developing alternative development scenarios, and (iv) analyzing how each alternative will impact each aspect

of the environment. Each successive step builds upon the earlier ones. Changes late

in the process can cause significant backtracking, delays and cost increases. For example, if a new issue is identified during impact analysis, the new issue may require additional data to describe unique aspects of the environment, modification of

alternatives and new impact analysis.

Field agents of the lead agency must be actively involved for successful completion

of each step. As each step can involve broad discretion, avenues for abuse exist.

As the project proponent in the third party EIS process, we agreed to pay a consultant to perform work on behalf of BLM. We were told that, based on BLM time

and budget constraints, if we preferred to have BLM prepare the document in-house

they would not have been able to complete it until 2005-2010. The consultant was

to work under BLM supervision. Our involvement was limited to paying the bills,

becoming involved with schedule concerns, designing our proposed action, and negotiating how much new information would be gathered through field surveys at our

expense. We were included in discussions while alternative development scenarios

were being developed. We were not involved at all with impacts analysis or discussions setting methodology. We wanted to make sure we had absolutely no influence

on this part of the process. We did however pay enormous bills for the work. By

signing the MOU we had signed a blank check, and we had created an interesting

marriage. River Gas, a company in business to make profit, had agreed to pay for

a government project. We knew up front that our involvement would be limited and

that at times we would not even know the details about what we were paying for.

Examples from our experience follow.

Identifying Issues

Issues are identified through agency scoping and public scoping. Ideally, agency

scoping should occur before public scoping to provide a strong foundation for public

input. We understood this would happen on our EIS, but it did not. We also understood that public scoping would last at least 30 days, but that BLM would continue
81

considering new issues submitted after the deadline. We were told that public

scoping never really ends, setting up strong possibility of future backtracking.

We were very concerned about endless public scoping, but as it turned out it was

not an issue in our EIS simply because the public did not identify many significant

issues. The real problem in our situation was that agency scoping continued well

into the process, creating an extremely fluid situation.

In April, 1994, we met with BLM representatives from the Price River Resource

Area office and the Moab District office to initiate the EIS. Price controlled all the

data critical for the process and the EIS team leader resided in Moab. The State

Director maintained signatory authority over the project. BLM informed us that certain data gaps existed, and we made plans to fill those gaps by contracting with

third parties to conduct field surveys. We discussed that agency scoping would take

place during the contractor selection process, and that as soon as the contractor was

selected, a kick-off meeting would be held to (i) introduce each BLM resource specialist to each expert from the consulting company, (ii) discuss BLM expectations

for each significant resource, (iii) cover methodology concerns and (iv) transfer all

available data. We wanted everyone to be on the same page.

The contractor was selected on schedule and the kick-off meeting was held on July

28, 1994. We flew the entire consulting team from Denver to Price for the meeting.

We envisioned a serious group meeting followed by individual meetings between the

experts, a field tour and data transfer. I thought the consultants would be leaving

with clear direction, knowledge that they were on the same page with BLM agents,

and truck loads of information. None of this happened. The meeting was chaotic.

BLM field employees were not prepared. They came and went freely during the

meeting. It was clear that they had given no thought to our proposal, the EIS or

anything related to the meeting. Several comments were made by BLM agents that

they wanted to see our proposed action, which had been available since the April

meeting. No data or guidance was transferred.

It was clear that the project was in serious trouble. Our budget and schedule were

based on the assumption, supported by the EIS team leader, that if we filled certain

identified data gaps all other data would be readily available. The schedule called

for consultants to begin describing the environment during public scoping, so the alternatives could be defined immediately after scoping and the impacts analysis

could proceed shortly thereafter. The original $200,000 budget was based on this

also. Because we had no cooperation or concern from the Price office, the entire

game plan which had developed from the April meeting had dissolved. Since the

budget and schedule were based on the game plan, they were no longer valid.

Although agency scoping had not really begun, public scoping began in August,

1994. A public meeting was held on September 8, 1994 in Price. The BLM hydrologist and BLM recreation specialist each arrived with a separate group of friends.

On several occasions during the presentation, I noticed that the BLM hydrologist

leaned to the gentleman sitting next to him, whispered in his ear, then the gentleman rose to ask a question relating to water issues. The same thing happened

after the BLM recreation specialist whispered to those around him. It was my impression that BLM agents were rallying opposition to our proposal during the public

scoping meeting.

No significant new or unexpected concerns were raised by the public. I don’t recall

any detailed discussion about deer and elk being a major concern during the meeting. Most of the discussion centered on socioeconomics, noise, air quality, water

quality, and visual impacts, routine topics for an EIS. Following the meeting I was

approached by the BLM wildlife biologist who stated that the biggest roadblock to

our project would be deer and elk. I’ll never forget the look in his eye as he said

it. At the time I did not understand what he had said. I understood the words, but

I could not comprehend how big game could be the deadly issue because it had not

been raised. The meaning soon became clear.

Data Availability & Adequacy

During public scoping the Price office prepared a memo requesting libraries of

new information that would be critical for beginning the EIS analysis. I thought we

had settled all data issues when we agreed to fill certain data gaps the previous

April, five months earlier. BLM’s EIS team leader indicated we should not be overly

concerned by the memo and that the issues would be resolved.

A meeting had been scheduled on September 16, 1994, the week following the

public scoping meeting, to discuss the alternative development scenarios that would

be analyzed in detail. The meeting took place in Price as scheduled, but no alternatives were discussed. The meeting focused on BLM’s requests for additional information to describe the environment. The EIS team leader had been unable to resolve the issues. BLM requested that we pay to gather a great deal of additional
82

information through field surveys before the EIS analysis could begin. Some of the

requests seemed legitimate, but others were outrageous. For example, the cultural

resource expert wanted a class III survey of the entire 300 square mile area, which

would entail a team of archaeologists walking the entire area separated by no more

than 15 meters.

We needed a process to reach final resolution of the issues quickly. No one was

available with the appropriate authority and no process existed. Simply because

agency specialists issued requests, we were forced to have experts research the legal

and scientific bases for the requests to determine whether they were appropriate.

After we had performed our investigation, no procedure for redress was available

to us. Responding to the requests was very time consuming and expensive. We

agreed to perform some of the surveys, but not all of them. We attempted to resolve

the remaining issues through follow-up meetings with the very agents who had requested the information in the first place. We had to convince them they were

wrong without any objective oversight. It was a difficult situation.

During one of the meetings, the BLM recreation specialist said that he had moved

to Price from California, he had seen what oil and gas companies had done there,

and he was not about to allow that to happen in Price. I still do not know what

companies had done in California, but he had clearly articulated his personal opposition to our proposed development. Other agents in the Price office made their opposition known through their actions and inaction.

Following several follow-up discussions, a meeting was held on November 4, 1994

involving BLM, USFS, USFWS and Utah Division of Wildlife Resources. By this

time, the issues had been narrowed and the most significant issue involved deer and

elk. BLM and DWR explained they had enough information to know where big game

critical winter range was and where high value winter range was, but they needed

to determine where the most critical portion of the critical range was. Without this

information, DWR and the BLM wildlife biologist indicated they would be forced to

protest the development. A three to five year survey was required at an estimated

cost of $500,000.

A DWR official indicated, with a great deal of emotion, that he knew our proposed

development would decimate the elk herd and he was not about to leave that legacy

for his grandchildren. When asked whether his assertion was supported by empirical evidence, he did not answer. The entire discussion was more emotional than scientific.

We could not conduct the survey. The projected expense was more than double

our entire EIS budget and it would have delayed the EIS three to five years. Based

on our reading of the CEQ regulations, adequate information was readily available

to go forward with the EIS. However, based on our perception that BLM agents

coached the public to oppose us during the public scoping meeting and DWR’s obvious concern, we wanted to make sure there was enough information to avoid successful appeal. We ordered a literature review, which ultimately amounted to two

inches of paper documenting studies performed on big game. It cost over $50,000.

The consultant presented the draft to BLM in January, 1995. BLM requested an

impact summary and conclusions. We objected because the EIS process itself is intended to assess potential impact, and there is no need to include it in a literature

review. After discussion, we directed the consultant to prepare the impact summary

and conclusion. They would need to do the work anyway in the EIS, so we believed

it would not create extra work or expense.

Once the modified report was presented, BLM wildlife biologist objected to the

conclusions and requested peer review of the report. It was our understanding that

peer review should take place during the public comment period on the draft EIS.

After additional delay on this topic, the literature review was finally accepted in October, 1995, over 11 months after it began and over 9 months after the first draft

was submitted.

Alternative Development Scenarios

A range of alternative development scenarios, including the no action alternative

and the proposed action, must be analyzed in detail in an EIS. While the events

described above were ongoing, many meetings took place to develop the alternatives

that would be analyzed in detail. Since the most significant concerns revolved

around potential impacts deer and elk, the alternatives were developed with this

concern in mind.

On December 1, 1994, the alternatives were finalized in concept. On May 23,

1995, almost 6 months later, we learned the alternatives had been thrown out by

the Moab District Manager, the EIS team leader’s boss, at the request of the Price

BLM resource specialists. Through subsequent discussions with BLM, we believe

the EIS team leader’s efforts to gain control of the project were being thwarted by
83

field level BLM experts who were going over his head to change his decisions. As

a result, the project was delayed and we were forced to pay the consultants to repeat work.

A new set of alternatives was finalized in concept during a meeting on October

26, 1995. For the first time during the process, the consultant had the clear direction necessary to move forward in earnest drafting the document. On February 5,

1996, the consultant presented the preliminary draft EIS to BLM for review.

The next month, during meetings on March 20–21, 1996, the BLM wildlife biologist suggested that a new alternative be developed for detailed analysis. In consultation with the Utah DWR, BLM at this time knew which portions of big game critical

winter were the most sensitive areas. The areas were known as Security Areas, and

a new alternative was presented on April 3, 1996, which would create no surface

occupancy zones within the Security Areas.

The areas were depicted without regard to property ownership boundaries or our

valid existing lease rights. Without becoming bogged down with those or other related concerns, we were very concerned about the data used to create the Security

Areas. On November 4, 1994, we were told that a three to five year study was necessary to determine boundaries of the most highly sensitive portions of critical winter range. Approximately 18 months later, the information they desired had somehow become available and it was being used as the basis for a new alternative being

proposed at an extremely late date in the process.

When asked whether any field surveys were conducted over the past 18 months,

the BLM wildlife biologist stated that none had been performed and that the Security Areas were based on his 18 years of experience and his consultation with Utah

DWR.

It is possible that the information was known in 1994, and the study request was

simply an attempt to delay the process for three to five years. It is also possible

that the Security Areas were not based on scientific information at all. In any event,

it is unclear why it took 2 years after the EIS began for the alternative to be proposed by BLM. Nonetheless, the Security Area Avoidance Alternative was designed,

drafted, analyzed in detail and presented as the BLM preferred alternative in the

Draft EIS.

Impacts Analysis

After the environment is described and each alternative is designed, an assessment is made as to how each alternative will potentially impact each significant aspect of the environment. The system has established extreme deference to the judgment of Federal resource specialists on scientific issues. Scientists routinely disagree

on how to interpret the same information and on how the impacts should be assessed. It is important that the government scientists agree on the methodology before the consultants begin their work. Otherwise, the consultant may be forced to

repeat the analysis causing additional expense and delay.

Through our consultant I understand that BLM routinely responded to the consultants’ requests for input on methodology with statements along the lines of ‘‘You

are the expert, they pay you the big bucks to figure out those things.’’ In general,

there seemed to be an attitude among BLM resource specialists that they did not

want to be bothered until the work was completed. So BLM did not know the

thought process behind much of the work when the preliminary draft EIS was presented for BLM comment. Without the proper guidance up-front and BLM involvement during the work, the consultants’ work failed to meet BLM expectations in

several areas, leading to further backtracking, further delay and additional cost repeating work.

Delayed Response to Preliminary Draft EIS

To ensure the document meets lead agency approval before it is issued to the public, a preliminary draft must be reviewed by the lead agency and changes will normally be made. In an ideal situation, the lead agency works so closely with the consultant during the process that few changes are required. Our EIS did not follow

the ideal scenario.

As discussed above, the preliminary draft was presented to BLM on February 5,

1996. BLM’s EIS team leader agreed that all BLM comments would be submitted

to the consultant by February 19, 1996. Preliminary comments were submitted on

March 13, and a meeting was arranged for March 20-21 to discuss the comments

in detail. During the meeting, major changes were requested including inclusion of

the new alternative, later called the Security Area Avoidance Alternative.

The requested changes meant the consultant had to gather additional data and

perform new impacts analysis. During the March 20-21 meeting, BLM resource specialists indicated they would provide the information to the consultant soon. On
84

May 7, 1996, the consultant still did not have the necessary information, so the

BLM EIS team leader ordered the consultant to go forward with its work without

the information. He was unable to force the resource specialists to perform their

jobs, so he attempted to push the project forward without them. The consultant simply did not have what it needed to go forward and, even if it did, would have been

reluctant moving forward without specialist approval for fear of future backtracking.

On June 17, 1996, the consultant received the final guidance on which it had been

waiting, nearly three months after it had been promised.

In an effort to avoid repeating delayed review of the second preliminary draft EIS,

the EIS team leader issued a letter to the BLM Price office dated May 30, 1996,

stating that only 2 weeks would be allowed for review of the second preliminary

draft. The consultant submitted the document on July 15, 1996. A meeting was

scheduled for July 31 between BLM and the consultant to review the comments.

During the meeting an additional 3 weeks were granted so the review could be completed.

With the extension, BLM comments were due on August 22, 1996. They were submitted on August 27. The consultant made the requested changes and submitted the

third preliminary draft on September 17, 1996. Following minor changes and BLM

approval, the draft EIS was submitted to the public for comment on October 10,

1996.

Public Comment

Two public meetings were held, one in Price, Utah and the other in Emery, Utah.

The vast majority of public comment favored the project. During the Price public

meeting, the personal attitudes of two BLM Price office field experts came out once

again. About half way through the meeting, following several comments favorable

to our proposed development, the two stormed out of the meeting. They seemed to

be outraged at the situation.

Revisions Following Public Comment

The public comment period ended on January 2, 1997. Based on public and governmental comment, a new alternative was proposed by BLM in consultation with

Utah DWR. The concept of protecting deer and elk Security Areas was discarded

in favor of a new concept: protecting drainage corridors, which were now believed

to be even more important than the Security Areas, and requiring other significant

mitigation for the benefit of deer and elk. The new alternative called for us to cancel

plans to develop over 8,000 acres of leases we had purchased from BLM and the

State of Utah in critical elk habitat (without compensation), agree not to conduct

drilling or construction operations during the winter on critical and high value big

game winter range (regardless of property ownership or lease rights), pay $1,250 per

Federal well drilled on critical big game winter range into a mitigation fund, and

agree to special site location standards within drainage corridors which BLM and

DWR had developed (potentially requiring well location contrary to BLM regulation). Individuals inside the BLM used the words extortion and blackmail, perhaps

jokingly, to describe the situation.

It is interesting to see how NEPA, in some situations, has replaced formal rulemaking under the Administrative Procedure Act. We were involved while the concessions were being developed, and we protested to some. But at that point, we had

spent so much on the EIS, we were processing huge consultant bills each month,

we saw the value of our initial investment in the field dwindling simply as a function of time, and we still had no idea when the process might end. We were in no

position to raise legal arguments that would further delay the process. Again, timely

oversight by an objective third party with authority would have helped.

We agreed to the concessions and the process began again. Information was gathered on the new alternative and a new impacts analysis was prepared. BLM field

experts in Price called for a new draft to be issued for public comment, suggesting

the new alternative would trigger a supplemental draft EIS. As with similar suggestions, this caused us to spend considerable time, energy and expense countering it.

The law, regulations and CEQ guidance was clear on the matter. But it was difficult

determining who we needed to convince. No procedure was in place. We had long

since learned that arguing with the Price office would be a waste of time. While the

EIS team leader wanted to do the right thing, he was without authority to render

a final decision. We went to the BLM State office, which intervened.

Had the Price office succeeded once again in its delay tactics, the EIS may be ongoing yet today. Fortunately, the Final EIS was issued and the Record of Decision

was signed in May, 1997.
85

Appeal

In spite of our concessions to protect deer and elk, the ROD was appealed by an

individual living over 100 miles away in Moab, Utah, citing concerns about potential

impacts to deer and elk. The IBLA denied his request for stay, so we are able to

move forward while the appeal is pending.

Post-EIS

Although it was closely involved throughout the EIS process, over the months following execution of the ROD, Utah DWR expressed concerns that BLM did not require us to pay the same mitigation fee, $1,250 per well, for wells on high value

winter range. Meetings with BLM and the State ended without resolving the matter

to the DWR’s satisfaction. After we refused to pay the additional moneys for high

value winter range, the BLM wildlife biologist guaranteed me that our permits

would be appealed as a result of our refusal.

During the same timeframe, I heard comments through the grape vine that BLM

agents from Price had said comments to the effect of ‘‘They may have made it

through the EIS, but wait till you see how long its takes to get permits approved.’’

Over 9 months have elapsed since the ROD was signed. As of today, March 11,

1998, we still have not received a single authorization to conduct work on BLM

land. We have submitted approximately 54 Applications for Permit to Drill, and approximately 5 right-of-way applications.

Delays since the EIS have not all been caused by the BLM, we have also been

at fault. We have been learning the Federal permitting process, we have had errors

on some reports submitted to BLM and have had other problems. We definitely

share some of the blame.

A portion of the blame also lies with BLM. The same individuals who indicated

they would block our development and who almost made believers out of us, are now

working on the permitting process. The ROD was a bitter pill for them to swallow.

Their dwindling opposition combined with their inexperience with the oil and gas

permitting process had contributed to the delays. I hope we are getting on the right

track.

Contrast with other BLM Offices

In contrast with the EIS experience described above, our experience with the Rock

Springs BLM offices is very encouraging. During very preliminary discussions that

could lead to the NEPA process; resource specialists from every discipline attended

meetings, acted professionally, offered input on what we should do to make the process go smoother, and generally tried to be helpful. I believe the NEPA process will

be very different while working with the Rock Springs office. Where the right people

are involved, the current system works well. But forcing companies to play Russian

roulette is unacceptable.

Suggestions

1. Only Minor Changes. We are all stewards of the environment, oil and gas companies included. It is my experience that industry wants to do the right thing. When

used properly, NEPA is a valuable planning tool. We should be careful not to overreact based on situation such as ours.

2. Oversight. The NEPA can be very fluid. It is critical to gain control of the process before it begins and to maintain tight control throughout the process. By allowing discretion for field-level agency experts to make decisions on a case-by-case

basis, decisions may be unduly influenced by personal agendas. Timely objective

oversight to agency discretion is necessary throughout the process and at the end

of each critical step to ensure accountability. The oversight could be through the legislative body, reimbursed by income derived from the project.

3. Reimbursement. Agencies rely heavily on the third party process, meaning companies must pay the NEPA bill. Everyone benefits from the process: the public at

large is ensured of environmentally conscious decisionmaking, agencies acquire additional information to assist their to efforts to do their job, and the project proponent can go forward in a prudent fashion. If the project is successful and the taxpayers benefit from Federal royalties, the project proponent should be reimbursed

for the NEPA expense.

4. Maximum Time Limits. The process currently has minimum timeframes; ie, no

decision can be made until a certain number of days has passed. There are no maximum timeframes. Particularly where government officials act like environmental

groups opposing a project, maximum timeframes are essential. For example, the

statute could be revised to state public scoping must last at least 30 days, and comments received after the 30th day will not be considered. It would also help to state
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that no EIS would take longer than 18 months to complete. In the event it is not

completed on time, the proposed action would be deemed approved.

5. Follow-up Analysis. Many assumptions are made during impacts analysis. Seldom are follow-up studies performed to determine whether the projected impacts actually occur as predicted. Sometimes assumptions are made simply because they

have been used as a basis for previous EIS analysis. For all the time and expense

that is going into NEPA processes, we are not learning enough. Follow-up studies

should be performed, again through dedicated accounts set up from Federal income

generated through the project.

6. Restrict Governmental Comment to Agencies Involved. Governmental agencies

that are not actively involved in the EIS process should be precluded from commenting on the EIS. Comments signed by governmental officials carry a great deal

of weight and create stronger impressions than those signed by average citizens.

Where governmental comments are negative, the taint can be very damaging. They

must be involved to be fully up to speed on a situation, which is essential to submitting quality comments. It is much easier to sit back and criticize than it is to get

involved and structure workable solutions. EPA was not involved in our EIS, but

it submitted a comment letter anyway. The comment read as if it had been prepared

by an environmental group, and it included issues beyond EPA’s area of expertise.

This type of activism must stop.

7. Prevent Automatic Stay Pending Appeal. We are concerned that DOI, IBLA or

BLM may approve an automatic stay provision in its appeal procedure, as currently

proposed by IBLA. If this is approved, we would still be delayed as if the EIS were

never completed. Anyone with 32 cents could block development indefinitely without

showing first that they were likely to succeed on the merits of the appeal. It may

be appropriate to stop such efforts through legislation.

8. Increase Budget. Part of the problems we have seen are the result of having

too few people with too little time to work on projects like our EIS. Budget increases

may help, particularly where the funds are dedicated for problem areas.

STATEMENT OF DAN CHU, WYOMING WILDLIFE FEDERATION, EXECUTIVE DIRECTOR

Good Afternoon, Chairman and members of the House Resource Committee, my

name is Dan Chu and I am the Executive Director for the Wyoming Wildlife Federation (WWF). WWF is a non profit conservation organization composed of over 3000

members who are united by a deep commitment to the protection of wildlife habitat,

the perpetuation of quality hunting and fishing, and the protection of their right to

use and enjoy public lands. Today, I will provide our perspective on the function and

effectiveness of the National Environmental Policy Act (NEPA). NEPA was established in 1970 to guide Federal agencies in their efforts to manage for sustainable

development and to allow the public to be involved in the management of their

lands and resources. Our members directly benefit from NEPA because it provides

a forum for local people and local interests to be considered in Federal actions on

public lands. WWF educates and mobilizes citizens to be involved in decisions that

affect their public land throughout Wyoming. We view NEPA as providing Federal

agencies a formal process for responding to the public and determining if an action

is truly in the public’s interest.

Specifically, the central mandate of NEPA is ‘‘The Congress . . . declares that 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 . . . 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.’’

WWF believes that the purposes of NEPA is to establish the policy that all Federal agencies must:

(1) Be responsible to future generations

(2) Provide environmental equity for all Americans

(3) Allow for the beneficial use of the environment without undue degradation

(4) Encourage historical, cultural, and biological diversity, and individual liberty

(5) Promote widespread prosperity for all Americans

(6) Manage for the conservation and prudent use of our natural resources

(7) Consider and incorporate public comments and interests

NEPA does not have decision-making authority; rather its function is to provide

a framework for disclosure and sound planning. NEPA requires that Federal agencies provide the public with full and adequate disclosure of impacts and effects of

development. Such effects include ecological, aesthetic, historic, cultural, economic
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or health. To determine the true impacts of development an adequate cumulative

impacts analysis must be conducted. Ultimately, a good cumulative impacts analysis

can ensure; the orderly development of our public natural resources in a way that

is compatible with other resource users under a multiple use management mandate.

Although we believe that the NEPA is an example of great foresight and responsibility from Congress in 1970, we also feel that the implementation of this Act can

be improved and streamlined. In fact, the topic of improving and streamlining the

implementation of NEPA was a major topic of discussion for the Green River Basin

Advisory Committee (GRBAC).

In 1996–97, I served as a member of this Federal Advisory Council. In response

to a growing number of concerns and appeals surrounding the cumulative impacts

from proposed oil and gas development on Federal public lands in Wyoming and

Colorado, both oil and gas companies and environmental organizations asked Secretary of the Interior, Bruce Babbitt to initiate a formal process to help resolve conflicts. Secretary Babbitt formed the Green River Basin Advisory Committee

(GRBAC) in February 1996 under the Federal Advisory Council Act. The GRBAC

was given a one-year charter to ensure the reasonable development of natural gas

and oil while protecting environmental and other resource values on public lands

in Southwest Wyoming and Northwest Colorado. Secretary Babbitt, in cooperation

with the states, selected 16 members from the oil and gas industry, conservation

groups, State Game and Fish, county commissioners, and state government officials.

The GRBAC was a consensus group and any recommendations forwarded to the Secretary received the wholehearted support of ALL of the GRBAC members. This was

truly a remarkable effort in true consensus building, bringing together a wide variety of interests and people to reach agreement on those actions that the Department

of Interior could take to resolve existing resource conflicts on our public lands.

One of the issues we agreed to discuss was the use of the National Environmental

Policy Act (NEPA). After much discussion we reached consensus on some recommendations we felt could improve the implementation of NEPA in the process of

oil and gas development.

I would like to briefly point out some of the recommendations the GRBAC reached

full consensus on. For more detail, please refer to the GRBAC’s Final Report to the

Secretary of the Interior, February 3, 1997 NEPA Streamlining Recommendations.

One of the common issues of concern we discussed was the lack of interagency

coordination in the NEPA process. We recommended ‘‘improving coordination and

communication among project proponents, affected agencies and stakeholders to reduce adverse comments and time required.’’ Specifically we all saw a need for Federal agencies to improve interagency coordination prior to and during the NEPA

process. We all felt that there have been too many instances where one particular

development project has resulted in two or more NEPA documents initiated by different Federal agencies. Such a lack of coordination results in unnecessary delays

and an inadequate cumulative impacts analysis.

One complaint we hear from industry is that the NEPA process results in significant delays. Many of these delays result from a lack of accurate field data detailing

the status of existing wildlife and plant communities. We also recognized that industry and environmentalists alike are frustrated with the incompatibility of various

Federal agency data bases, often precluding the sharing of key biological data.

Another GRBAC consensus recommendation addressed how to improve the format

and content of the NEPA document while reducing its size. One way is to ‘‘eliminate

duplication in data requirements as well as consolidating and accessing existing

data bases.’’ To this end, WWF recommends that Congress provide additional funding to Federal agencies with the purpose of consolidating various data bases to provide accurate and comprehensive biological data bases.

‘‘lmpact Analysis should be based on scientific and realistic Impact assessment, not

speculations. This GRBAC recommendation states that a common need of industry,

environmentalists and management agencies is that of having a reliable and complete biological data base. Whereas industry strongly believes that it is not their responsibility to collect baseline data, Federal agencies have a legal and moral responsibility to the public to conduct a cumulative effect analysis and minimize impacts

of the proposed development on other users and resources. We believe the fundamental problem resides in the inadequate funding of data collection and habitat protection by Congress. For this reason, WWF supports the Teaming With Wildlife Initiative (TWW). We believe that TWW could bring sorely needed funds to state Game

and Fish agencies to conduct surveys and compile the necessary information needed

in many NEPA documents. Such work would help fill important baseline data gaps

as well as enhance wildlife habitat on public lands. Additionally, such preventative

monitoring and mitigation could decrease NEPA documentation time and minimize

future impacts from development.
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In conclusion, WWF applauds the great foresight and wisdom of Congress when

they established the National Environmental Policy Act in 1970. Consolidating Federal agency data bases, improving interagency coordination, investing in filling crucial biological and cultural data gaps, and facilitating early communication between

all resource user interest groups can enhance the implementation of NEPA.

Thank you for this opportunity to comment.

STATEMENT OF LYNTON K. CALDWELL, PROFESSOR OF PUBLIC AND ENVIRONMENTAL

AFFAIRS, INDIANA UNIVERSITY AND STAFF CONSULTANT TO THE SENATE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS ON A NATIONAL POLICY FOR THE ENVIRONMENT, 1968–1970

Few statutes of the United States are intrinsically more important and less understood than is the National Environmental Policy Act of 1969. This comprehensive

legislation, the first of its kind to be adopted by any national government, and now

widely emulated throughout the world, has achieved notable results, yet its basic

intent has yet to be fully achieved. Its purpose and declared principles have not yet

been thoroughly internalized in the assumptions and practices of American government. Nevertheless there appears to be a growing consensus among the American

people that environmental quality is an enduring public value, and that development of the economy does not require a trade-off between environmental quality and

economic well-being. Voluntary compliance with NEPA principles may one day become standard policy and procedure for government and business; but meanwhile

it is in the interest of the Congress and the Nation to understand the historical developments that led to NEPA and the subsequent course of its implementation.

The legislative history of NEPA and the policy concepts it declares are more extensive and accessible than some of its critics recognize. Treating NEPA as if it were

a special application of the Administrative Procedures Act of 1946 misreads its principal purpose and misdirects criticism. NEPA declares public values and directs policy; but it is not ‘‘regulatory’’ in the ordinary sense. A decade of thought, advocacy,

and negotiation in and out of Congress preceded the legislation of 1969. Dissatisfaction with NEPA and its implementing institution—the Council on Environmental

Quality—should not be directed against this innovative and well-considered statute,

but rather toward failure to understand its purpose, to reinforce its administration,

or to support its intent.

Through the judicially enforceable process of impact analysis, NEPA has significantly modified the environmental behavior of Federal agencies, and indirectly of

State and local governments and private undertakings. Relative to many other statutory policies NEPA must be accounted an important success. But implementation

of the substantive principles of national policy declared in NEPA requires a degree

of political will, not yet evident in the Congress or the White House. That the American people clearly supports the purpose of NEPA is evident in repeated polls of

public opinion. But implementation of NEPA has not been audibly demanded by a

public at-large which has received little help in understanding what must be done

to achieve objectives of which they approve.

Three decades since 1969 is a very short time for a new aspect of public policy—

the environment—to attain the importance and priority accorded such century-old

concerns as taxation, defense, education, civil liberties, and the economy. The goals

declared in NEPA are as valid today as they were in 1969. Indeed perhaps more

so as the Earth and its biosphere are stressed by human demands to a degree that

has no precedent. (Note the 1993 World Scientists Warning to Humanity) But ‘‘environment’’ in its full dimensions is not easily comprehended. Human perceptions are

culturally and physically limited, but science has been extending environmental horizons from the cosmic to the microcosmic. Even so, the word ‘‘environment’’ does

not yet carry to most people the scope, complexity, or dynamic of its true dimensions.

If NEPA continues to be interpreted narrowly and exclusively by the courts, more

compelling legislation may be required. A statutory or constitutional amendment

may be necessary to give its substantive intent, operational legal status. Some defenders of NEPA fear that opening the statute to textual amendment might result

in its being weakened as, for example, through statutory exclusions limiting class

action suits based on NEPA, or in limiting its applicability to Federal action having

an environmental impact beyond U.S. territorial limits. Its text unchanged, NEPA

has already in effect been amended to exclude its application to major environmentaffecting projects popular with the Congress, (e.g. the Alaska oil pipeline). As of

1997 the U.S. Code listed at least 28 exceptions to the application of NEPA. Some

were for clarification, however, and did not significantly affect the substance of the
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Act. An amendment to the United States Constitution could strengthen the applicability of NEPA’s substantive provisions to judicial review and executive implementation. At present this possibility appears to lack feasibility, but merits consideration

as a future option. Meanwhile, for the NEPA intent to be more fully achieved two

developments will be necessary:

First is greatly increased popular comprehension of the purpose and principles

of environmental policy as expressed in NEPA—especially by conservation and environmental groups, civic organizations, religious denominations, and by political parties at the grass roots, along with recognition—now beginning to appear in the

world of business—that economic and environmental objectives need not be incompatible. NEPA principles, if rationally applied, would help sustain the future health

of both the economy and the environment.

Second is appreciation by the Congress, the executive branch, the courts, and the

news media of the political responsibilities and institutional arrangements necessary to fulfill the NEPA mandate. More visible commitments in the White House

and at the top policy levels of the Federal agencies, and especially in the Congress

are needed. As long as candidates for Federal office are dependent on financing from

sources whose purposes could result in destructive exploitation of the environment,

support for NEPA in the Congress and the White House is unlikely to be no more

than symbolic, and seldom invoked.

NEPA, however, contains means to achieve its purpose. Institutional arrangements for coordination of policies for natural resources and, by implication, the environment, underwent extensive consultations for at least a decade preceding NEPA,

within and between both houses of Congress, with the Federal agencies, and with

non-governmental representatives of public interests. NEPA incorporated most of

the provisions upon which general agreement had been reached.

Declaration of National Policy

The most important and least appreciated provision of NEPA is the congressional

declaration of national policy under Title I, Section 101:

that 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.

Seven specific aspects of policy are enumerated, and while necessarily stated in

general terms, they are hardly vague in purpose. Section 101b states that:

in order to carry out the policy set forth in this Act, 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 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.

In addition the Congress recognized that ‘‘each person should enjoy a healthful

environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.’’

The declaration clearly implies that economic and environmental values are or

should be compatible. A key to understanding NEPA may be found in the phrase

‘‘. . . 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.’’ This statement has often been interpreted to

require a balancing of equities, primarily economic and environmental. But the intent of NEPA would not be achieved by off-setting (but still retaining) an economic
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‘‘bad’’ with an environmental ‘‘good,’’ as mitigation measures may attempt. More

consistent with the spirit of the Act would be a synthesis in which ‘‘productive harmony’’ is attained and transgenerational equity is protected.

Beneath the language of the Declaration there are fundamental questions of jurisprudence and constitutional responsibility that, bearing upon the implementation of

NEPA, have not generally been addressed Does the Declaration establish a policy

by law? If the statute, in fact, is a declaration of law as well as policy what then

are the responsibilities of the President under Article II of the Constitution that ‘‘he

shall take care that the laws be faithfully executed’’? And what are the responsibilities of the Congress to see that a policy declared by a Congress and not repealed,

is not sabotaged or neglected in the Executive branch or by its own committees?

Critics of NEPA have found its substantive provisions nonjusticiable, and by implication not positive law. The courts have refrained generally from overturning administrative decisions that could be interpreted as incompatible with the substantive provisions of NEPA. However, in the case of Calvert Cliffs Coordinating

Committee v. Atomic Energy Commission, Judge Skelly Wright of the U.S. Circuit

Court of Appeals of the District of Columbia declared that:

The reviewing courts probably cannot reverse a substantive decision on its merits, under Section 101, unless it can be shown that the actual balance of costs

and benefits that was struck was arbitrary or clearly gave insufficient weight

to environmental values. But if the decision was reached procedurally without

individualized consideration and balancing of environmental factors, conducted

fully and in good faith, it is the responsibility of the courts to reverse.

The generally recessive posture of the courts on the policy provisions of NEPA

contrasts markedly with their activist policymaking in constitutional civil and property rights cases. In these cases Federal judges have not hesitated to assert sweeping jurisdiction over all levels of government in which official action or inaction was

found to be at variance with judicial opinion. A plausible explanation for this contrast is the absence of any direct provision in the Constitution of the United States

for environmental protection, in contrast to explicit provisions for property rights

and civil rights in the Fifth and Fourteenth Amendments. Where the Congress has

mandated or prohibited specific actions affecting air and water pollution or endangered species, and provided penalties for violations, the courts have reviewed and

enforced if no infringement of constitutional rights is found. Presumably they would

do so for any of NEPA’s substantive policy mandates for which Congress provided

specific procedures and penalties not subject to judicial reversal as contrary to the

Constitution.

An environmental protection amendment to the Constitution might enable the

courts to clarify equities and diminish uncertainties between private rights and public interests in the environment. It could reduce litigation in environmental affairs

and might prevent some arbitrary and unpredictable policymaking on environmental issues by the Federal courts. Section 101 of NEPA establishes the principles

and goals of environmental policy and is, in essence, a declaration of values. It is

difficult to adjudicate values, but legislation implementing principles expressed in

NEPA and applied to specific tangible policies has been reviewed and upheld in the

courts. The Historic Preservation Act (Public Law 89-665, Oct. 15, 1966) and the Endangered Species Act (Public Law 93-205, Dec. 28, 1973) are examples. Substantive

mandates in these and other environmental statutes are or could be reinforced by

the substantive and procedural provisions of NEPA.

Beyond the judiciary there is another recourse to enforcement of the principles of

NEPA—in the constitutional obligation of the President ‘‘to take care that the laws

be faithfully executed.’’ The President rarely needs a court opinion to use residual

executive power to apply the law; the presidency possesses broad executive discretion over implementation of the laws by the Federal agencies. A President whose

priorities coincided with NEPA’s principles, absent blocking in the Congress or the

courts, could by executive action go a long way toward fulfilling the NEPA mandates.

The Case For a National Policy

From the viewpoint of historical constitutional conservatism, environment in the

broad sense was not a comprehensible subject for public policy—at least for national

policy. Strict constitutional constructionist Thomas Jefferson did not even believe

that highway construction was an appropriate function of the Federal Government.

For environmental nuisances, such as air or water pollution, common law remedies

were available under state police powers, and prior to the 1960’s were widely regarded as local issues.

Emergence of environment as a public and national issue followed from profound

changes in the population and economy of the United States in the course of the
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20th century. These changes were accompanied by unprecedented growth of scientific knowledge and technology. Progress of this new industrial society increasingly encountered and created environmental problems which neither local government or the market economy could cope. Quality of life values in health, amenities,

and opportunities were being lost or threatened and the causes transcended artificial political jurisdictions.

Only the Federal Government had the geographic scope and institutional structure able to deal with the growing array of interrelating problems now called ‘‘environmental.’’ These problems of air, water, resource conservation and the biosphere

were soon seen to be transnational, but national government was the only available

institution sufficiently inclusive and authoritative to deal with them. International

cooperation depended upon the ability and willingness of national governments to

address common regional and global environmental problems and so by the mid

20th century, environment began to emerge as a new focus for public policy.

Broad statements of policy and principle that are not perceived to affect personal

interests or property rights seldom arouse much public concern or response. Issues

that do elicit popular concern almost always affect the present and personal advantages or apprehensions of people. Attitudes relating to the environment in modern

American society have been largely issue-specific and subjective, as in the NIMBY

(Not in My Back Yard) syndrome. But effective response to circumstances in the

larger societal and biospheric environments necessarily must be collective, with

whole communities or an organized ‘‘critical mass’’ of the society activated. Stratospheric ozone depletion, global climate change or tropical deforestation are hardly

neighborhood or personal issues which people might feel that their actions could influence. And while non-governmental organizations may help in many ways to assist

environmental protection, the ultimate agent of public interests affecting all of the

United States is the Federal Government. State and county boundaries are environmentally artificial, corresponding neither to ecosystems nor bioregions, and seldom

to economic activities that are increasingly interstate, nationwide, and transnational

in scope.

NEPA, supplementing the legislative powers of the Federal Government over

interstate commerce, navigable waters, and public lands, creates an obligation to

apply its provisions where relevant. Thus applications for Federal permits, licenses,

purchases, concessions, and grants may require the preparation of environmental

impact assessments required by NEPA. For other environmental impacting policies

the President, through Executive Orders, may instruct the agencies in the performance of their functions, as President Carter did in giving legal status to the NEPA

Regulations of the CEQ, (EO11991, 24 May 1977) and, paralleling NEPA in Federal

activities abroad, in EO12114, 4 January 1979.

Conclusion

NEPA is potentially a powerful statute, well integrated, internally consistent, and

flexible, even though not entirely clear on some points of law which have nevertheless been clarified by interpretation, as in the Regulations issued by the CEQ under

Executive Order 11991 of 1977. That it has made a significant difference in the

United States and has influenced governments abroad is hardly debatable. NEPA

was not a sudden inspiration, nor was it put over on an unsuspecting Congress and

the public by an environmental lobby. Its purpose was never the writing of impact

statements; but this action-forcing procedure has been a great inducement to ecological rationality in Federal actions which traditionally had largely ignored environmental consequences.

No technical fix nor administrative reorganization will achieve the NEPA intent.

To implement NEPA as intended requires a president committed to its objectives

and using his appointive, budgetary and leadership powers to this end. It requires

a judiciary that recognizes the legislative history and substantive intent of the statute and does not defeat the purpose of successive Congresses through narrow legalistic interpretations. It requires from Members of the Congress recognition of the

legislative history and intent of NEPA and of the efforts of successive Congresses

since 1959 to respond to concerns of the American people for a sustainable and harmonious environmental future.

Legislative priorities may change with voting majorities (even by one vote) in successive Congresses. But the printed record of the history of NEPA should make clear

the intentions of its architects in the 91st and preceding Congresses. Nevertheless

many critics of NEPA appear to have interpreted it from subjective premises without inquiry into the legislative history of the Act or into the assumptions and expectations of the persons responsible for its language and content. These critics have

missed the implications of NEPA’s broad and basic principles and goals. It sets an

agenda to be implemented through legislative and administrative action. From one
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perspective NEPA may be seen as the capstone of national environmental policy;

more importantly it should be viewed as a foundation for the future.

STATEMENT OF LILLIAN C. BORRONE, DIRECTOR, PORT COMMERCE DEPARTMENT, THE

PORT AUTHORITY OF NEW YORK & NEW JERSEY

Dear Congressmen Saxton and Pallone:

The occasion of the House Resources Committee hearing on matters pertaining to

the National Environmental Policy Act prompts me to share some thoughts on Federal management of environmental policy as it regards dredging activities in the

Port of New York–New Jersey. As you know the Port was in crisis through the first

6 years of the 1990’s. Ships had trouble entering marine terminal areas; cargo was

lost to the competition in Canada. However, the tide has changed. The Port community became energized as did the New Jersey and New York congressional delegations. And initiatives were taken by the Governors of New York and New Jersey

and the Clinton Administration, especially with respect to coordination among the

Federal regulatory agencies.

The Port of New York–New Jersey is the largest on the East Coast of the American continent, an international gateway of national economic significance and a

major economic engine for the States of New York and New Jersey. The Port is dependent on channel, berth and anchorage dredging to maintain adequate depths for

the many thousands of ships that call each year. Approximately 4 million cubic

yards of sand and mud are dredged annually. In addition ours is a region with superb, coastal natural resources that are on display in your congressional districts

and in the Port itself. Perhaps not surprisingly the region has been witness to especially vigorous environmental regulation—and litigation—of water-based activities

including navigational dredging. That intense interest is prompted in part by sediment contamination that is the result of upstream sources of pollution and the region’s industrial heritage. It raised legitimate questions within government and attracted well-intentioned—sometimes constructive—critics of dredging practices. All

those ingredients combined to produce a crisis of the like the Port had not seen in

my memory. For the purposes of this letter I would like to focus on the Federal regulatory function, complicated as it was by sediment contamination.

The Army Corps of Engineers is the Federal Government’s permitting agency for

dredging activities. However the natural resource agencies—EPA, NOAA’s National

Marine Fisheries Service and Interior’s Fish & Wildlife Service—also play influential parts. When the Federal process was not functioning well often times the agencies were conducting their respective roles less in ways that facilitated decisionmaking and more as gatekeepers. Each had their own demands and seemed to have

little regard for the passing of time and the practical implications of regulatory

delay on the Port. Typically cautious and methodical in the perfommance of their

duties, they became especially so with the knowable that some environmental orations were prepared to litigate.

The Port’s only sediment disposal location at that time was the EPA-regulated

ocean Mud Dump site. As a result, there were no available alternative disposal

areas and sediments were subjected to the most rigorous testing requirements under

the law. Revised and tougher Federal testing protocols were put in place at the beginning of the decade and certain of those were never fully accepted in the Port community as scientifically supportable. The presence of dioxin and other contaminants

in sediments, especially in the busiest part of the Port where channels and berths

were overdue for dredging, produced frustrating and not always clear results on

which the regulators were to base their decisions. A nearly three-year period of regulatory indecision and, eventually, litigation is documented in the attached. Ultimately, the Federal and state permitting agencies and the court allowed dredging

to go forward, notwithstanding a lawsuit, the effects of which are still felt today.

And while the permit was issued and the channel was dredged in the summer of

1993 Federal permit problems persisted. Challenges to dredging activities in New

York Harbor continued to stymie Federal channel dredging well into 1996.

The positive news out of all of this is that steps were taken to address the various

problems in the States and in Washington, particularly with respect to Federal regulation. There were two developments of special note regarding the latter. I will

touch briefly on the first and then for the purposes of your Committee hearing focus

on the second, involving the work of the Council on Environmental Quality under

NEPA.

Importantly, dredging came to be understood as a transportation matter with

some attendant environmental issues, and not vice versa. In 1993, then Transportation Secretary Federico Pen ̃ a recognized that major channel dredging projects
93

were at risk and convened the Interagency Working Group on the Dredging Process

whose members were the regulatory agencies and the Maritime Administration.

Late in 1994, its report, The Dredging Process in the US: An Action Plan for Improvement, was issued and later forwarded to the White House. It included recommendations that focused on ways the permit process could be expedited through

greater cooperation among the regulatory agencies. Today, the Corps of Engineers

and EPA co-chair the National Dredging Team that, along with Regional Dredging

Teams in ports around the country, is working to improve the way the dredging permit process is implemented.

A second and significant step to improve regulatory decision-making and overcome

major hurdles to dredging was the involvement of the Council on Environmental

Quality. Administration officials came to understand that certain persistent issues

caused great uncertainty in what should be predictable and routine dredging activities. It became apparent that the Port would continue to lose intermodal cargo and

jobs to Canadian ports—at a rate of roughly 100,000 containers a year—if the Federal channels were not able to be dredged promptly. Already large ships that routinely made New York Harbor their first call in North America were diverted to

Halifax to lighten their load of containers before sailing to our Port.

After spending over a year consulting with many persons representing the States,

the Port, marine terminal operators, labor, and environmental organizations, CEQ

and the Federal agencies developed a strategy designed to address specific needs of

the Port, including the dilemma over sediment disposal; the immediate need to clear

Federal channels and berths of accumulated silts; and the long term question of the

future of the Port channel structure. On July 24, 1996 Vice President Gore announced a three-pronged strategy as outlined in a letter to members of the Port’s

congressional delegation. It was a strategy, the components of which were not pleasing to all interests, that served to get the Port past seemingly intractable issues.

First, in coordination with the States, the controversial ocean disposal site—the

Mud Dump—was to be closed in September of the following year to all but Category

1 sediments (the cleanest of 3 categories as determined through sediment testing).

The nearly century-old site was to be capped. Second, prompt steps were to be taken

to remove ‘‘immediate obstacles to dredging the Port,’’ with a focus on the permit

process, and the Corps would accomplish maintenance dredging for ‘‘10 high priority’’ Federal channel projects by the end of 1997. Those were selected in cooperation with the States and the Port Authority. Third, the Corps would undertake an

‘‘expedited’’ feasibility study of alternatives for a 50-foot deep Port. In addition the

Maritime Administration was to recommend any additional measures needed to ‘‘enhance the international competitiveness’’ of East Coast ports. Steps also were to be

taken to address the quality of sediments in the Port. The letter, signed by the Secretary of the Army, the Secretary of Transportation, and the Administrator of EPA,

is attached.

Significantly, the White House and agencies did not simply declare victory and

move on to another crisis in another part of the country. Implementation of the July

1996 strategy was carefully monitored and managed by CEQ, Corps and EPA headquarters staff. Not unexpectedly, problems with some permits and other issues did

appear along the way. Those were managed with great diligence and conscientiousness and interested parties at all levels were consulted and heard. In our experience

the coordination role played by CEQ as contemplated in NEPA was essential to our

success by ensuring that conflicts and obstacles among agencies are addressed by

the Executive Office of the President. As a result we were able to overcome years

of gridlock—or mudlock—and move forward to protect the future of the Port.

The Port is not out of the woods yet. We are working with the States of New York

and New Jersey and the Corps of Engineers to implement a long term and economic

dredged sediment disposal strategy. Sediment contamination in some parts of the

Port continues to pose permitting and disposal issues. Meanwhile, essential dredging has occurred or is planned, construction should start on a major channel deepening project this September, and funding for the 50-foot feasibility study is on

schedule. Such progress is made possible by long term commitments on the part of

everyone involved. At the Federal level, the Council on Environmental Quality,

Corps of Engineers, and EPA officials continue to show that commitment. And with

the strong support of our Governors the Port’s future looks much brighter than it

did just a few years ago.
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STATEMENT OF CAROLE BROWNER, ADMINISTRATOR, U.S. ENVIRONMENTAL PROTEC- TION AGENCY, FEDERICO F. PEN ̃ A, SECRETARY, U.S. DEPARTMENT OF TRANSPOR- TATION AND TOGO D. WEST, JR., SECRETARY, U.S. DEPARTMENT OF THE ARMY

Dear Congressman Pallone:

Your leadership and support have been essential in advancing our shared goals

of protecting the ocean environment, while ensuring the competitiveness of the Port

of New York and New Jersey and the economic health of the region. We are writing

to announce our commitment to several substantial new steps to provide additional

Administration support for those goals. We believe the three-point plan outlined

below demonstrates this Administration’s commitment to the continued growth and

vitality of the port, to protective regulation of ocean disposal, and to a stronger partnership with the states in protecting regional commerce and the marine environment.

1. We will close the Mud Dump Site by September 1, 1997

After years of contention, this Administration is prepared to help resolve the controversy over disposal at the Mud Dump Site (MDS) off the New Jersey coast.

Environmental, tourism, fishing, and other community groups have long contended that the MDS should be closed immediately. These views reflect the important environmental values that New Jersey’s communities identify with their coastal environment. Community concerns have been heightened by the unhappy history

of other environmental threats that these communities have had to endure—ranging

from oil spills to the littering of shorelines with medical waste. This history warrants sensitivity to concerns about the MDS, including concerns about continued use

of the site for so-called ‘‘category 2’’ material. When these concerns are coupled with

the limited category 2 disposal capacity we expect the site to provide, we must conclude that long-term use of this site for disposal activity is not realistic.

Accordingly, the Environmental Protection Agency (EPA) will immediately begin

the administrative process for closure of the MDS by September 1, 1997. The proposed closure shall be finalized no later than that date. Post-closure use of the site

would be limited, consistent with the management standards in 40 C.F.R. Section

228.11(c). Simultaneous with closure of the MDS, the site and surrounding areas

that have been used historically as disposal sites for contaminated material will be

redesignated under 40 C.F.R. Section 228 as the Historic Area Remediation Site.

This designation will include a proposal that the site be managed to reduce impacts

at the site to acceptable levels (in accordance with 40 C.F.R. Section 228.11(c)). The

Historic Area Remediation Site will be remediated with uncontaminated dredged

material (i.e. dredged material that meets current Category I standards and will not

cause significant undesirable effects including through bioaccumulation). Our ongoing environmental assessment activities at the site will be modified to reflect these

new commitments. We also will seek to reinforce this approach in appropriate legislation.

Although we recognize that eventual closure of the MDS, followed by remediation,

is appropriate, immediate closure could jeopardize the Port, which may need shortterm use of the site to dispose of category 2 material. To strike the appropriate balance, use of the site for category 2 material will have to be supported with certifications by the permit applicant, and a finding by the Corps of Engineers that: 1)

the affected states or ports were asked to provide alternative sites for disposal of

the material identified by the permit, and that the states or ports failed to provide

a reasonable alternative site; and 2) the disposal of category 2 material at the MDS

will not increase the elevation at the MDS higher than 65 feet below the surface.

Any elevation limits will be designed to contain material within the current lateral

limits of the MDS, and will be set based on scientific evidence.

2. We will help remove the immediate obstacles to dredging the Port

The Port Authority of New York and New Jersey, terminal operators, shipping

lines, and labor groups have identified numerous ways in which we can help expedite dredging in the Port. We have heard, and are responding to, their concerns.

Making the MDS available for category 2 material for the next 12 months, and

allowing the elevation at the site for category 2 material to increase, would remove

the most immediate and major Federal obstacles to dredging. The designation of the

Historic Area Remediation Site will assure long-term use of category 1 dredge material.

Our outreach to the companies, longshoremen, harbor pilots, and others whose

livelihood depends on the Port, has identified many additional steps our agencies

can take to further facilitate adequate dredging in the Port. A major source of concern and potential cost for permit applicants has been uncertainty surrounding the

testing that must support permit applications. Accordingly, by the end of August,
95

EPA will finalize its proposal that tests of only two species, not three, will be required of permit applicants. EPA then will invest at least 9 months in a process

for all affected groups—industry, labor, and environmental groups—to help the

Agency review the ocean disposal testing requirements and ensure that any further

revision reflects both sound policy and sound science.

The Corps of Engineers will expedite the processing of dredging permit applications and completion of its own dredging projects. The Corps will issue public notices for dredging permits within 15 days after a completed application is submitted,

or will have requested any additional information necessary to make the application

complete. Within 90 days, the Corps will either issue the permit, deny the permit,

or commit in writing to a deadline for the permit decision. The Corps responsibility

for the Federal channels will also be met with cooperation from the states and the

funding requested by the President, the Corps will ensure maintenance dredging for

10 high-priority Federal channel projects before the end of 1997.

In addition, the Corps and EPA will accelerate their work with the affected state

and local governments on a sound dredge material management plan, and complete

the interim plan by August 30, 1996. This interim plan will identify any steps that

are necessary to sustain dredging through 1997. The final plan will be completed

by September, 1998.

Most importantly, we expect that our commitments concerning the MDS will diminish or eliminate the possibility of litigation challenging permits and the EPA

rule change during the period prior to September 1, 1997. This proposal is predicated on that result.

3. We will help ensure the health of the Port and the environment for the 21st Century

The short-term efforts identified here cannot truly help the Port without effective

long-term strategies to ensure that dredge material is managed properly. We recognize the significant efforts and commitments that New York and New Jersey have

made with us to put those strategies in place. We will reinforce those efforts, so that

long-term growth of the Port is sustained and sustainable.

Recognizing that a vital Port should be able to accommodate the full range of

world-class ships, the Corps will soon begin an expedited feasibility study of alternatives for a 50 foot deep Port, including recent legislative proposals on this issue.

The Corps will seek Congressional authorization and take steps to reprogram funds

to allow the study to begin in 1996, and the study will be designed for completion

in 1999. Recognizing that dredging is not the only issue affecting the future of this

and other Ports, the Department of Transportation is committed to a six-month

study of the causes of cargo diversion from our East Coast ports. This study, which

will be developed in consultation with other affected agencies, will recommend any

additional measures that are needed to enhance the international competitiveness

of our East Coast ports.

Continued growth of the Port must be coupled with aggressive development of disposal alternatives and expanded efforts to reduce toxic pollution in the harbor. The

Administration will continue to support legislation and appropriations to support

cost-sharing of upland disposal alternatives. The Administration will also seek support for the range of continuing efforts to develop acceptable alternatives. For example, EPA is today announcing $1.2 million in contract awards to support development of decontamination technologies for dredge material. In addition, the Corps

will immediately seek necessary authorization and funding to begin the technical

design and feasibility studies needed for environmentally sound confined containment facilities, in anticipation that such facilities may be part of the final dredge

material management plan. We also will pursue additional steps to reduce and address toxic pollution in the estuary. We will seek to minimize polluted runoff by

funding and suporting local and region-wide watershed planning and implementation activities. By September 1996, EPA will invest $100,OOO to facilitate pollution

reduction in the Arthur Kill. All of these efforts will be coordinated with the HarborEstuary Comprehensive Conservation and Management Plan, which is the blueprint

for working cooperatively with state and local governments, businesses, and citizens

to reduce toxic pollution in the watershed.

We will be calling upon every member of the New Jersey and New York delegations, as well as the affected state and local governments, to continue our constructive and cooperative efforts to sustain port growth and environmental protection. We

will also be submitting periodic reports to the President on our success in implementing this plan and on any continuing obstacles to harbor dredging.

We appreciate your continuing leadership and advice as we work together to ensure a healthy economy and a healthy environment for the region.
96

STATEMENT OF ROCKY MOUNTAIN OIL & GAS ASSOCIATION

INTRODUCTION

The Rocky Mountain Oil & Gas Association (RMOGA) is a trade association representing hundreds of members, both large and small, who account for more than

90 percent of the oil and gas leasing, exploration, and development in an eight-state

region in the Rocky Mountain West. Over 90 percent of the Federal lands lie in the

western third of the United States. As such, most RMOGA states contain significant

amounts of Federal acreage. Consequently, RMOGA’s members routinely obtain

Federal oil and gas leases and conduct exploration and development activities

throughout these public lands. All of these actions are subject to compliance with

NEPA.

NEPA, enacted by Congress in 1969, is a procedural Act designed to ensure the

Federal Government considers the environmental consequences of all major Federal

actions prior to making decisions on whether certain activities will be allowed to

proceed. The Act also directs that broad public involvement be an integral part of

the analysis process. Upon passage of NEPA, the Council on Environmental Quality

(CEQ) developed regulations for implementing the Act’s procedural provisions. The

CEQ regulations attempted to develop a reasonable approach to NEPA compliance

and have been modified since their inception to take into account the need for

streamlining the process to avoid unnecessary delays or analysis.

However, while RMOGA firmly believes no statutory changes are needed to ‘‘fix’’

NEPA itself or its implementing regulations, there are many problems associated

with the Federal agencies’ interpretation of NEPA and implementation of CEQ’s

regulatory requirements. Moreover, even though land management agency manuals

plainly recognize the intent of the law and regulations and have set forth procedures

accordingly, actual NEPA compliance by these agencies often flagrantly ignores the

intent of the law and regulations.

For example, the CEQ regulations direct agencies to reduce paperwork by keeping

the length of environmental impact statements (ElS’s) short by preparing ‘‘analytic

rather than encyclopedic’’ ElS’s; limiting issue analysis to only significant issues,

while briefly describing insignificant issues; and utilizing tiering, adoption or incorporation by reference of relevant documents to eliminate duplication and unnecessary analysis. Comparable direction is aimed at reducing delays by emphasizing

interagency cooperation before beginning preparation of the EIS, recommending the

establishment of time limits for EIS preparation, and utilizing categorical exclusions

and ‘‘findings of no significant impact’’ when an action not otherwise excluded will

not significantly effect the human environment. None of the Federal agencies adhere to these or other CEQ directions. As a result, the EIS process is overly long,

complex, and extremely costly. In fact, it would appear the process is also used to

delay proposed projects in the hope proponents will abandon their projects. An unfortunate outcome, due to excessive costs, delays, and uncertainty associated with

NEPA, is that companies are reluctant to invest their capital in projects on public

lands and end up avoiding Federal lands altogether, where possible.

The first step in remedying this onerous situation is clear—require Federal land

management agencies to immediately implement the NEPA Streamlining Recommendations developed by the Green River Basin Advisory Committee (GRBAC)

in June 1996. GRBAC was convened by Interior Secretary Babbitt and was comprised of environmental, oil and gas industry, private land owners, state and local

government representatives, as well as several ex-officio members from the BLM,

Forest Service and DOE. One of GRBAC’s self-appointed tasks was to assess the

myriad problems associated with the NEPA process, the impetus being perceived

conflicts between natural gas development in southwest Wyoming/northwest Colorado and wildlife concerns. As a result, the Committee identified many flaws in the

current NEPA process and developed a set of specific recommendations aimed at

solving the problems. The Committee’s findings are relevant to all NEPA endeavors

and the recommendations should be applied to all NEPA projects, whether they are

at a site-specific project or programmatic level, including Federal land use planning.

Even though the Department of Interior committed to formally adopting these recommendations, no specific guidance or direction has been issued to BLM field offices. And, while BLM named a pilot project, the Jonah II project in Wyoming, to

test the validity of the GRBAC recommendations, the project failed because the recommendations were not implemented by the Federal agencies involved in the

project. As a solution to this dilemma, we urge the House Resources Committee to

pass a resolution calling for DOI and DOA adoption of the GRBAC recommendations. We also recommend the Committee require an annual report from both BLM

and the Forest Service showing progress made in streamlining their NEPA processes.
97

Other specific issues and solutions RMOGA would like to emphasize are

identified in the following discussions:

Revise Agency NEPA Procedures To Ensure Consistency With CEQ Regulations

Over the past two decades, Federal land management agencies have become less

effective as land managers due to litigation by preservation groups. For example,

they have routinely elected to prepare full blown ElS’s on projects which could have

been sufficiently addressed by either a categorical exclusion from NEPA or an environmental assessment. This misguided attempt to prepare ‘‘bulletproof’’ documents

has resulted in protracted delays due to inordinate analysis requirements and increased costs in the NEPA process. In addition, agencies are relying less on trained

resource specialists to make everyday land use decisions. As mentioned previously

in this statement, the CEQ regulations offer a variety of options for ensuring the

NEPA process is effective but not excessive. The agencies should more clearly incorporate this direction into their own procedures and return land management to resource professionals.

Institute Federal Agency Accountability in the NEPA Process

The greatest cause for delay and excessive costs associated with the NEPA process is the agencies’ insatiable demand for new resource data, particularly when a

project proponent is paying for the NEPA documentation in order to have it completed within a reasonable timeframe. NEPA requires that an environmental analysis include only the best available information and that if there is a lack of information it should be so stated in the EIS. However, agencies are compelling project

proponents to pay for data collection which should have been collected as part of

the land use planning process. Some field offices also appear to be analyzing speculative and extraneous alternatives to the proposed action which serves to further

complicate the NEPA analysis and to delay projects in which millions of dollars

have been invested by proponents.

NEPA delays are not only harmful to the companies that have legally binding contractual agreements with the Federal Government to exercise their lease rights,

they also result in delays in revenue going to the Federal, state and local treasuries.

It is imperative for these onerous delays to be eliminated. In addition to requiring

agency personnel to comply with CEQ regulations, we believe the best way to reduce

costs and delays is to hold agency personnel accountable for using the most practical

and time and cost effective means to acquire data where gaps exist. Also, cooperative data collection undertakings among Federal agencies and state and local governments should be mandated. Ultimately, these cost and time saving measures

should be incorporated into job performance standards of NEPA team leaders, line

officers and agency heads.

Reduce Costs

Due apparently to increasing budget shortfalls, as mentioned above agencies are

increasingly shifting the financial burden of project level NEPA compliance to industry for the plant and animal inventories, surveys and documentation. Unfortunately,

this cost shifting trend also precludes many independent petroleum companies from

operating on Federal lands and is becoming a principal cost constraint for larger operators. Partial relief may be accomplished by adoption of an Eco-Royalty Relief

(ERR) program, as recommended by GRBAC. As proposed, ERR would allow industry to take credit against royalty payments for the cost of project NEPA documentation and mitigation/monitoring activities which exceed lease and regulatory requirements. ERR is supported by environmental Groups, the state of Wyoming, the public and industry.

Furthermore, GRBAC’s NEPA streamlining recommendations include ERR as a

critical streamlining element because it could help resolve controversial issues early,

provide a means for gathering sound scientific data to accurately assess potential

impacts and mitigation. A DOE analysis in the GRBAC report indicates application

of ERR would be revenue positive by accelerating royalty payments to Federal, state

and local governments.

Establish Time Frames

Time frames associated with project level NEPA analyses have become intolerable. Two to 4 years to obtain project approval on existing leases is unconscionable.

While we recognize it may be impractical to impose fixed timeframes for completion

of all NEPA documents, every effort should be made by the agency to perform within a reasonable schedule, which it can be held to by the project proponent. The

GRBAC recommendations target a 50 percent reduction in time and paper which

RMOGA believes is feasible if the agencies commit to streamlining the NEPA process. Utilizing options such as tiering, incorporating by reference and adopting exist-
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ing information would help agencies reduce their analysis times. RMOGA recommends the agencies be required to track their performance in an annual report

to Congress.

Improve Communication and Interagency Coordination

Improved communication, coordination and resource data exchange among Federal, state and local governments and project proponents will help streamline the

NEPA process, both at the project level and the land use planning level. Federal

agencies are reluctant to allow local government involvement in the NEPA process,

despite the fact they have a vested interest in the decisions being made and can

help make the process run more smoothly. On the other hand, one of the most frustrating and controversial aspects of interagency coordination is that many single use

agencies fail to recognize Federal land management agencies have a Congressionally

mandated multiple-use mandate which cannot be abrogated. Furthermore, issues

are often raised that are clearly beyond the scope of the analysis, e.g. global warming. Such input adds tremendous cost, time and controversy to the NEPA process

for all parties while contributing little value from the perspectives of science-based

decisionmaking, risk management or efficient land management. Clearly the lead

Federal agency must take responsibility to ensure the process runs efficiently and

cost effectively.

Establish NEPA Coordinators

Federal agencies should establish a national NEPA coordinator to oversee all

NEPA projects within an agency. This coordinator would ensure agency compliance

with CEQ regulations and would have actual experience in managing NEPA

projects. This position would also help ensure NEPA projects are kept on track and

are adequately staffed and funded. To date, there is little or no agency support for

NEPA experts. NEPA compliance typically falls to subordinate staff with little or

no experience in project management and/or NEPA compliance. Since NEPA compliance constitutes a major responsibility of land management agencies, greater support from all levels of management must be provided.

Avoid Unessential Public Involvement

Once again, due to fear of litigation, many Federal field offices issue public

scoping notices on each and every minor activity proposed on public land, including

those which involve previously disturbed areas, such as weed control along an existing access route. This results in unnecessary project delays, not to mention wasted

Federal funds. Public notification and requests for comments should be limited to

major projects that could result in significant impacts to other resource values or

the human environment.

Improve the Scoping Process

Agencies should limit the NEPA analysis to issues relevant to the project at hand.

Agencies typically analyze in great detail insignificant issues simply because they

have been raised in public comments. While it is important to identify all relevant

issues as early as possible in the process, it is irrational to analyze each and every

issue raised, particularly if a resource value or conflict does not exist within the

study area or if it has already been adequately addressed in another document.

While the CEQ regulations indicate ‘‘alternatives’’ are the heart of the EIS, it is

inefficient to analyze every possible alternative that can be contrived. NEPA, itself,

indicates only appropriate alternatives needed to address unresolved conflicts are

necessary. Therefore, the range of alternatives should be dictated by the nature of

the project proposal, including potential mitigation measures, and kept to the minimum needed to provide a method for resolving perceived conflicts.

Improve Monitoring Requirements

We propose the agencies adopt a procedure for determining when land use activities are approaching the management threshold established in land use plans to ensure resource sustainability and land management continuity. As such, active monitoring must be done on all resource activities. This will allow Federal land management agencies to track key resource issues, improve their resource data bases and

obtain a true picture of actual cumulative effects of surface management decisions.

In order for this concept to work, the agencies must make monitoring a priority. In

addition, a quality control process needs to be put in place to ensure resource management objectives are clearly stated and measurable. Management thresholds,

which when reached require a review of existing management practices, must also

be identified. An extremely important element of the monitoring effort is maintenance of existing resource data. This effort could be accomplished collectively with

other Federal and state agencies. The end result would be a system for resource
99

management planning which will increase efficiency in the Federal land use planning and project level NEPA processes.

In conclusion, there are many ways in which to improve the NEPA process by revising current agency procedures. While RMOGA believes the risks associated with

the legislative process may be unacceptably high on the NEPA issue and that the

current framework can be made to work better, we would fully support legislation

to implement an Eco-Royalty Relief program to address the currently unbridled

costs associated with project level NEPA.

STATEMENT OF HON. ALEX PENELAS, MAYOR, MIAMI-DADE COUNTY

In early 1993, President Clinton’s administration designated Homestead Air Force

Base as ‘‘a model for the nation’’ of fast-track realignment and conversion under the

Presidential Five Point Plan. Realignment occurred on 31 March 1994, and reconstruction of the Air Force Reserves cantonment area is proceeding on schedule.

However, 4 years later, the ‘‘conversion’’ part of the model (the non-cantonment portion of the base) is still in ‘‘analysis paralysis.’’ Specifically, the civilian airport reuse

of the base, which was touted as the engine of economic revitalization, lingers in

administrative limbo.

The economy of the South Miami–Dade area, dependent for over 50 years on active duty military operations and agriculture, has lost over $4 billion since realignment. The area’s continued economic recession is the biggest single contributor to

the persistently high rates of unemployment figures in our county while the remainder of the state and the Nation enjoy sustained prosperity. Clearly, the entire county’s economic viability is at stake.

The complicated conversion process of the former Homestead Air Force Base from

active duty to a joint civilian-military use facility was to be the engine of economic

renewal after Hurricane Andrew’s devastation. The process, however, appears to be

on an indefinite holding pattern. This is due primarily to the manner in which the

Council of Environmental Quality (CEQ) has interpreted a certain key rule in the

National Environmental Policy Act (NEPA) of 1969. The rule in question requires

the consideration of what is known as the ‘‘No-Action Alternative’’ as part of any

Environmental Impact Statement (EIS). Analysis of the No-Action Alternative is

very useful for situations involving the development of property at its highest and

best use, but the No-Action Alternative is very misleading in the context of redevelopment in situations where, through an unfortunate combination of natural disaster

and subsequent lack of maintenance and repair, property slated for redevelopment

is, at the time of the EIS, underutilized and/or abandoned. In these circumstances,

the No Action Alternative forces the Federal Government to start with a baseline

which produces an artificially low level of environmental impacts. This automatically biases the entire process against any type of redevelopment.

We currently face this situation with respect to the Supplemental EIS that has

been ordered for the former base. The No-Action Alternative as it exists today disregards the former active duty military operations on the entire 2,940 acres of the

property by reducing it to a reserve base with a very low level of military activity

along with some ancillary law enforcement uses occupying less than one third of the

original acreage. This is dramatically different from the level of activity that the

base generated prior to Hurricane Andrew. To use the current artificially low level

of activity as the comparative basis for a determination of whether the redevelopment should be allowed, defies sound judgment and harshly impacts South Florida

through the potential loss of the valuable resource of the redeveloped use of the

base.

This same scenario exists any time a natural disaster, or just programming

changes, result in the redevelopment of Federal property after it has become dormant for even a short period of time and therefore should be corrected.

The logical, factual, most equitable solution is to require that the No-Action Alternative be based upon the level of use that the property experienced at its highest

level of use in the past. Using this approach, redevelopment of real property that

has been allowed to deteriorate for some years would be appropriated based upon

the highest level of use that had existed in the past. This method considers the appropriate level of use of properties that were previously developed to their highest

and best use while still protecting natural resources requiring continuing evaluation. Using the prior level of activity as the basis for future determinations ensures

strict control over the potential for overdevelopment and overexpansion.

I strongly urge you to consider the clarification of this key NEPA interpretation

so that the No-Action Alternative reflects the highest level of activity attained prior

to it being artificially reduced.
100

Additionally, I urge that the current status of base contamination levels be accurately and rigorously documented in the SEIS. Restoration and investigation records

prove that the base is one of the most environmentally clean in the Nation and that

it poses an insignificant level of risk to human health and the area’s environment.

During the process of trying to complete the realignment and conversion of the

former Homestead Air Force Base to a joint civilian and military use facility, it has

been a problem dealing with NEPA because of the interpretive rules which have

come down from the CEQ. These rules require the consideration of what is known

as the ‘‘no action alternative’’ as part of any Environmental Impact Statement (EIS).

While looking at the no action alternative is very useful for situations involving the

development of previously untouched land and resources, the no action alternative

is very misleading in the context of redevelopment in situations where, either

through natural disaster or other abandonment, a piece of property to be redeveloped is, at the time of the EIS, underused or abandoned. The no action alternative,

in these circumstances, places the Federal Government in the position of having, as

the base line for determining environmental impacts, an artificially low level of impacts. This can render the redevelopment extremely difficult.

We currently face this situation with respect to the Supplemental EIS that has

been ordered for the former base. The no action alternative that exists today is a

base that has a very low level of reserve military use along with some ancillary law

enforcement uses. This extremely low level of activity is dramatically different from

the level of activity that existed at the base prior to Hurricane Andrew. To use the

current, artificially low level of activity as the comparative basis for a determination

of whether the redevelopment should be allowed, denies logic and harshly impacts

South Florida through the possible loss of the valuable resource of the redeveloped

use of this base.

This same scenario exists any time a natural disaster, or just programming

changes, results in the redevelopment of Federal property after it has become dormant for even a short period of time. This should be corrected.

A possible solution could be to require that the no action alternative be based

upon the level of use that the property experienced at its highest level of use in the

past. In this way, redevelopment of property that has been dormant or artificially

reduced in use for some period of time would be appropriately based upon the level

or use that had existed in the past. This way the people will not be denied the appropriate use of properties that have previously been developed while still protecting

those natural lands that should continue to be protected. By using the prior level

of activity as the basis for future determinations, the prospect of over development

and over expansion can still be controlled.

STATEMENT OF THE AMERICAN PETROLEUM INSTITUTE, THE NATURAL GAS SUPPLY

ASSOCIATION, THE INDEPENDENT PETROLEUM ASSOCIATION OF AMERICA, THE MIDCONTINENT OIL AND GAS ASSOCIATION, THE WESTERN STATES PETROLEUM ASSOCIATION, AND THE NATIONAL OCEAN INDUSTRIES ASSOCIATION

The nation’s leading petroleum industry associations appreciate the opportunity

to present their views on NEPA process and how it affects our companies’ applications to explore for and produce hydrocarbons on Federal lands. This statement is

presented on behalf of the American Petroleum Institute (API), the Natural Gas

Supply Association (NGSA), the Independent Petroleum Association of America

(IPAA), the Mid Continent Oil and Gas Association (MCOGA), the Western States

Petroleum Association (WSPA) and the National Ocean Industries Association

(NOIA).

API represents more than 400 companies involved in all aspects of the oil and

natural gas industry, including exploration, production, transportation, refining and

marketing. NGSA represents integrated and independent companies that produce

and market natural gas. IPAA represents explorers and producers that drill some

85 percent of the nation’s oil and gas wells. MCOGA represents petroleum companies in Alabama, Louisiana, Mississippi, Oklahoma and Texas. WSPA promotes policies that will help meet energy needs of the West and the nation. NOIA represents

more than 280 companies and many individuals involved in exploration for and development of domestic offshore oil and natural gas resources.

In section 102 of the National Environmental Policy Act (NEPA), the Congress directed all Federal agencies ‘‘to use a systematic, interdisciplinary approach . . . in

planning and decision-making which may have an impact on man’s environment . . .

which will ensure that presently unquantified environmental amenities may be
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given appropriate consideration in decision-making along with economic and technical considerations.’’

Although NEPA contained few mechanisms to achieve its goals, it has had tremendous impact on public land management decisions as a result of the procedural

mandate from Congress, which directs all Federal agencies to ‘‘include in every recommendation or report on proposals for legislation and other major Federal actions

significantly affective quality of the human environment, a detailed statement by

the responsible official on the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, alternatives to the proposed action, the relationship between local shortterm uses of man’s environment and the maintenance and enhancement of longterm productivity, and any irreversible and irretrievable commitments of resources

which would be involved in the proposed action should it be implemented.’’ The

Council on Environmental Quality (CEQ), created by Title II of NEPA, promulgated

regulations implementing these action-forcing procedures of NEPA that are binding

on all Federal agency decisions.

The requirement that Federal agencies prepare an environmental impact statement (EIS) prior to major agency actions significantly affecting the environment has

spawned a body of law that now governs a variety of predominantly private activities involving any degree of Federal oversight, funding or approval. The lead agencies preparing EISs for oil and gas activities on Federal onshore lands are the Bureau of Land Management (BLM) and the U.S Forest Service of the Department of

Agriculture. For activities on Federal offshore lands, the lead agency is the Minerals

Management Service (MMS) of the Department of the Interior. In both offshore and

onshore projects, other agencies, such as the Environmental Protection Agency and

the Army Corps of Engineers, are typically involved in consulting roles, sometimes

recommending requirements or stipulations for the lead agency to impose as a condition for granting a permit. Although the EIS process has helped achieve many of

NEPA’s goals, it has at times and in different places imposed unnecessary delays

and costs on petroleum company operations without significant environmental benefits.

Although statutory change is probably unnecessary and existing regulations are

adequate, considerable change in the way the process is administered would be beneficial to Federal agencies, project applicants and American taxpayers. The only

groups that would oppose change would be those which use the NEPA process to

inflict costly and protracted delays in Federal decision-making, so as to sink projects

through procedural maneuvering when opposition on the merits is groundless.

Among the problems that need to be addressed are the following:

•Fear of litigation has forced Federal agencies to seek ‘‘litigation proof’’ reviews,

which leads to unnecessary analysis, cost and delay. A lower confidence level

should be satisfactory.

•Too often the Environmental Protection Agency (EPA) only provides comments

on draft EISs, frequently at the end of the comment deadline. EPA should identify its concerns early in the NEPA process, as contemplated in NEPA and the

CEQ regulations. Extraneous analysis could be eliminated if salient issues were

identified earlier and analysis were kept focused on important issues.

• At times lead agencies have difficulty getting other agencies with jurisdiction

or relevant expertise to become ‘‘cooling agencies.’’ If a request to a sister agency is denied, lead agencies are often unwilling to enforce CEQ regulations that

require all agencies with jurisdiction to participate in the process.

With regard to onshore projects in particular, we would note the following difficulties:

•There is a tendency in the BLM and Forest Service to slow down the process

simply because a project may be controversial, rather than moving forward with

an efficient ‘‘issue management’’ approach.

• Cooperating agencies do not always reflect an adequate understanding of the

multiple-use mission of the BLM and Forest Service. Hence, they often try to

force projects to comport with their own narrower agendas.

• Agencies have demonstrated a lack of understanding of CEQ regulations implementing NEPA and/or a lack of commitment to following CEQ guidelines.

• NEPA team leaders often have little or no experience or training in managing

the NEPA process or dealing with the type of project under consideration. There

is a lack of support and oversight on NEPA projects by agency managers and

NEPA specialists.

•There is no agency accountability for the NEPA process.

• Often there is poor communication between the project proponent, the lead

NEPA agency and any third-party contractor retained to conduct the analysis.
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• When project proponents are paying third-party contractors for EIS work,

there is no obligation or incentive on the agency’s part to streamline the work,

improve efficiency or otherwise reduce cost.

• Agencies often fail to explore preferred mitigation efforts early in the process

with other appropriate agencies and stakeholders. Agencies are often unwilling

to dismiss frivolous public commentary and to separate ideological commentary

from that focused on project-specific environmental impacts.

•The NEPA process sometimes creates timing difficulties when understaffed

agencies are asked to meet tight comment periods and time lines. Cooperative

planning memorandums of understanding between lead agencies and state and

local regulatory authorities could minimize difficulties and duplicative efforts

while still allowing for meaningful input from all parties.

Offshore projects encountered their own unique problems over the years. However, the MMS, in working with industry public commenters, has been able to significantly streamline the offshore NEPA process in the traditional offshore areas. In

the past, after a preliminary environmental assessment (EA) of proposed agency actions, the MMS routinely prepared full-blown EISs prior to offshore lease sales, and

prior to implementation of each 5-year Outer Continental Shelf (OCS) Leasing Program. Numerous full-blown EISs were prepared over the years for lease sales in the

central and western Gulf of Mexico. It is our understanding that, on average, it took

MMS approximately 2 years to identify, design, conduct, evaluate, draft, respond to

comments, and publish full-blown EISs. In these traditional areas, the final EISs

contained similar information. Since CEQ’s implementing regulations provide for

the agencies to develop ‘‘categorical exclusions’’ to avoid duplicative EIS requirements, MMS has moved significantly to streamline the process in the traditional offshore areas.

Oil companies must seek numerous Federal, state and local approvals for offshore

activities, such as Exploration, Development Operation Coordination Documents,

Plans of Development, and right-of-way applications. As part of MMS’s former review and approval process of each application, it had to make redundant internal

environmental assessments for each step, adding unnecessary time and costs to the

approval process. As a result of MMS’s evaluation of these past delays and redundant compilations of information, MMS has become one of the most responsive and

cooperative of Federal agencies involved in the NEPA process. Current MMS NEPA

requirements, as applied to the Gulf of Mexico OCS, include preparing one EIS for

multiple sales. In the central Gulf of Mexico, MMS prepared a single EIS covering

the next five proposed OCS lease sales.

With thousands of operations conducted annually on the OCS, and with strict liability regulations in place to assure that those operations are performed prudently,

using the highest environmental mitigation technologies, MMS has conduded that

additional full-blown NEPA reviews in traditional areas such as the central and

western Gulf of Mexico are unnecessary.

The full-blown EIS process in frontier areas—for example, in ultra deep waters

and the Eastern Planning Area in the Gulf of Mexico—is important to provide MMS

as the lead agency with new environmental information. These studies should be

expedited so that MMS will have the body of data necessary to decide if categorical

inclusions for these areas are warranted.

STATEMENT OF THE AMERICAN FARM BUREAU FEDERATION

The American Farm Bureau Federation (AFBF) is the nation’s largest general

farm organization. AFBF has affiliated state Farm Bureau organizations in all 50

states and Puerto Rico, representing the interests of more than 4.8 million member

families. We appreciate the opportunity to submit this statement for the hearing

record, and to bring to the Committee some of the problems and concerns that we

have encountered with the application of the National Environmental Policy Act

(NEPA).

One of the primary stated goals of NEPA is to ‘‘encourage productive and enjoyable harmony between man and his environment.’’ The statute provides a mechanism whereby the environmental impacts of Federal agency action can be assessed,

taking into consideration the social and economic implications for such actions.

NEPA is not designed to create any new substantive rights.

There are three main issues that we want to bring to the attention of this Committee with regard to NEPA.

1. Farmers, Ranchers and Other Economic Interests Are Being Denied Judicial

Standing To Challenge the Agencies’ Compliance With NEPA.
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1 Examples of such decisions include Nevada Land Action Association v. U.S. Forest Service,

8 F.3d 713 (9th Cir. 1993); Region 8 Forest Service Timber Purchasers Council v. Alcock, 993

F.2d 800 (11th Cir. 1993). This exclusion was also used to deny Farm Bureau standing to challenge the adequacy of the Environmental Impact Statement for the Reintroduction of the Gray

Wolf Into Yellowstone and Central Idaho, Wyoming Farm Bureau Federation, et al v. Babbitt,

et al. No 94-CV286-D, District of Wyoming (1997)

Despite the fact that NEPA is ostensibly just a procedural statute, it has been

the subject of extensive litigation. Most of the litigation has centered on the adequacy of a Federal agency’s compliance with the provisions of NEPA. Challenges

take the form of suits claiming that more extensive documentation should have been

prepared in particular cases, or that the prepared documentation was inadequate.

Unfortunately, recent court decisions addressing the scope or adequacy of NEPA

documentation have not included any cases brought by farmers, ranchers or other

landowners. That is because a number of Federal courts have held that farmers,

ranchers and other landowners have no judicial standing under NEPA to challenge

the adequacy or sufficiency of NEPA documents. Such courts have held that social

and economic interests are not within the ‘‘zone of interests’’ contemplated by

NEPA, and they conclude that there is no basis to bring suit to challenge decisions

made under the law.1

The courts that have denied standing to economic and social interests to challenge

NEPA documentation have failed to consider the balancing between man and the

environment required by NEPA and that was one of the primary purposes of NEPA

as set forth above. NEPA requires agencies to consider the social and economic impacts of agency action in evaluating alternatives, but courts do not give those interests any recourse when impacts are ignored or not adequately described.

Nevertheless, these decisions are on the books. Farmers, ranchers and other landowners have no way to challenge the adequacy of NEPA compliance in those jurisdictions where these cases exist. Even though NEPA only creates a process that

agencies must follow, the infommation that is produced as part of that process plays

a big part in the decision that is ultimately reached. Agencies rely on the information that is developed in reaching a decision. Thus, if any aspect of the information

required to be developed is inadequate or is inaccurate, that deficiency skews the

entire decision-making process.

The denial of standing for farmers and ranchers to challenge the NEPA process

is detrimental for a number of reasons. By denying them the opportunity to protect

their interests, it effectively denies them any meaningful participation in the NEPA

process. An agency that has no accountability for the accuracy or completeness of

its social and economic analysis will likely pay less attention to that part than to

other aspects of the analysis.

Denial of standing also creates the inequitable result that only conservation interests can challenge decisions adverse to them, while commodity interests cannot challenge decisions adverse to them. Agencies only have to pay attention to one side of

the issue, because that is all they can be held accountable for. The ‘‘balance’’ that

NEPA called for between man and his environment has thus been destroyed. Instead of promoting that balance as NEPA was intended to, the manner in which

NEPA is being interpreted is making consideration of man with his environment

even more out of balance.

This problem has adverse impacts on decision-making as well. Agencies considering only one side of an issue necessarily suffer because they do not consider the

other. Effective decisionmaking best occurs when all sides of an issue are considered.

This problem could be solved through legislation, with an express provision defining standing under the Act. Until this situation is resolved, the intent of NEPA will

be thwarted, and the quality of decision-making thereunder will suffer.

2. Resource Planning and Implementation Activities Are Too Often Subject to Duplicative NEPA Compliance.

Another major problem hamstringing land management agencies is the duplicative NEPA compliance that is required for both planning activities and for implementation of those planning decisions.

The National Forest Management Act (NFMA) requires the Forest Service to develop forest plans for each element of the National Forest system. Similarly, the Bureau of Land Management is required to develop land management plans for each

unit of its system. Typically, these plans encompass the entire unit, and are broad

based documents that encompass all or almost all resource uses within the unit.

The management plan is implemented within each unit through individual sitespecific management actions. If, for example, a forest plan calls for 30,000 animal
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unit months of grazing per year in the forest, that broad statement is implemented

through the implementation of individual grazing permits that total 30,000 animal

unit months per year. The plan paints the broad picture—individual implementing

actions fill it in.

Forest and resource plans are subject to the provisions of NEPA. All plans were

preceded by an Environmental Impact Statement (EIS) prepared in accordance with

NEPA. The EIS for each plan was used to determine use allocations and locations

within the forest. The goals, objectives and broad design for each resource unit are

determined through the public participatory processes spelled out in NEPA.

Once these goals have been determined, however, the actions that implement

these plans should not also have to go through the same process. The extensive

analysis undertaken for each forest plan or resource plan pursuant to the National

Environmental Policy Act is undermined by going through the same process for each

project level activity (such as grazing permit renewals), notwithstanding the fact

that such activities are in compliance with the forest plan. If adequate NEPA has

been done in the development of the management plan, the same process ought not

have to be repeated for individual projects that implement the plan. This results in

a waste of money, manpower and time.

These duplicative actions also hamstring the ability of a land management agency

to accomplish its mission. Instead of on-the-ground work, agency personnel are tied

up doing NEPA work onsite-specific projects that should not have that level of analysis in the first place.

An example of this situation occurred in 1995, with the renewal of Forest Service

livestock grazing permits coming due. More than half of the over 9,000 permits were

up for renewal by the end of that year, and the Chief of the Forest Service had determined that NEPA must be complied with before permits could be re-issued. Livestock grazing allocations had been determined in forest plans after having gone

through the NEPA process. This situation threatened to tie up Forest Service personnel for a long period of time doing nothing but NEPA compliance for grazing permit renewals. Fortunately, this situation was resolved before the entire Forest Service became nothing more than a NEPA compliance factory. But it took a legislative

solution to accommodate all interests.

That is not to say that NO analysis is necessary at the implementation phase.

But it certainly should not have to be an EIS. As long as the implementing action

is consistent with and in accordance with forest or resource allocations, a much lesser level of analysis should be sufficient. Perhaps all that is needed is an analysis

to determine that conditions are the same or similar to when the management plan

was developed. In any event, there needs to be some accommodation so that the

same costly and time consuming work that is being conducted at planning levels is

not being needlessly duplicated at the implementation stage.

3. Little or NO NEPA Work is Done on Many Things that Affect Federal Resource

Units.

We have described above situations where compliance with NEPA results in the

same NEPA activities being required to implement specific measures that have already undergone NEPA analysis.

Ironically, little or no NEPA work is usually done for actions that actually represent changes in direction of the land management plan. For example, the Forest

Service has adopted multi-forest or regional guidelines, or developed watershed

plans or ecosystem management plans, that may affect a number of forest plans.

Within the framework of NFMA, these changes would be viewed as plan amendments, yet very rarely is NEPA ever performed or forest plans even formally amended to incorporate these additional plans. Instead these additional processes are

overlain on the forest plan and not made a part of it. The use of these devices serves

to circumvent the requirements of NEPA altogether.

These are but a few of the general issues affecting the way NEPA works. In some

cases it causes duplication, while in other cases it allows complete circumvention of

its requirements.

All three of the issues that we have identified here are important, and they subvert the purposes for which NEPA was enacted. All three can be solved by some

legislative direction or clarification. If anything is to come out of this hearing, we

hope that it can be a way to resolve these issues. The American Farm Bureau Federation offers its assistance to satisfactorily resolve these situations.
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