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NEPA: LESSONS LEARNED AND

NEXT STEPS

OVERSIGHT HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

Thursday, November 17, 2005

Serial No. 109-37

Printed for the use of the Committee on Resources

(

Available via the World Wide Web: http://www.gpoaccess.gov/congress/index.html

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

RICHARD W. POMBO, California, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Barbara Cubin, Wyoming

Vice Chair

George P. Radanovich, California

Walter B. Jones, Jr., North Carolina

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Jim Gibbons, Nevada

Greg Walden, Oregon

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

Jeff Flake, Arizona

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Luis G. Fortun ̃ o, Puerto Rico

Cathy McMorris, Washington

Bobby Jindal, Louisiana

Louie Gohmert, Texas

Marilyn N. Musgrave, Colorado

Vacancy

Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Grace F. Napolitano, California

Tom Udall, New Mexico

Rau ́l M. Grijalva, Arizona

Madeleine Z. Bordallo, Guam

Jim Costa, California

Charlie Melancon, Louisiana

Dan Boren, Oklahoma

George Miller, California

Edward J. Markey, Massachusetts

Peter A. DeFazio, Oregon

Jay Inslee, Washington

Mark Udall, Colorado

Dennis Cardoza, California

Stephanie Herseth, South Dakota

Steven J. Ding, Chief of Staff

Lisa Pittman, Chief Counsel

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

TASK FORCE ON UPDATING THE

NATIONAL ENVIRONMENTAL POLICY ACT

CATHY McMORRIS, Washington, Chairwoman

TOM UDALL, New Mexico, Ranking Democrat Member

Ken Calvert, California

George P. Radanovich, California

Chris Cannon, Utah

Jim Gibbons, Nevada

Greg Walden, Oregon

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Louie Gohmert, Texas

Richard W. Pombo, California, ex officio

George Miller, California

Edward J. Markey, Massachusetts

Frank Pallone, Jr., New Jersey

Grace F. Napolitano, California

Jay Inslee, Washington

Mark Udall, Colorado

Rau ́l M. Grijalva, Arizona

Jim Costa, California

Nick J. Rahall II, West Virginia, ex officio

(III)

CONTENTS

Page

Hearing held on Thursday, November 17, 2005 ................................................... 1

Statement of Members:

McMorris, Hon. Cathy, a Representative in Congress from the State

of Washington ............................................................................................... 1

Rahall, Hon. Nick J., II, a Representative in Congress from the State

of West Virginia, Prepared statement of ..................................................... 17

Statement of Witnesses:

Connaughton, James L., Chairman, Council on Environmental Quality .... 2

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

Dreher, Robert G., Deputy Executive Director, Georgetown Environmental Law and Policy Institute ................................................................. 36

Prepared statement of ............................................................................... 38

Goldstein, Nick, Staff Attorney, American Road and Transportation

Builders Association ..................................................................................... 47

Prepared statement of ............................................................................... 49

Response to questions submitted for the record ..................................... 56

Harwood, Alan, Principal and Vice President, EDAW, Inc. .......................... 57

Prepared statement of ............................................................................... 59

Martin, John C., Attorney, Patton Boggs LLP ............................................... 62

Prepared statement of ............................................................................... 63

Response to questions submitted for the record ..................................... 71

Yost, Nicholas C., Partner, Sonnenschein, Nath & Rosenthal, LLP ............ 20

Prepared statement of ............................................................................... 22

Response to questions submitted for the record ..................................... 33

(1)

OVERSIGHT HEARING ON NEPA: LESSONS

LEARNED AND NEXT STEPS

Thursday, November 17, 2005

U.S. House of Representatives

NEPA Task Force

Committee on Resources

Washington, D.C.

The Task Force met, pursuant to call, at 10:37 a.m., in Room

1324 Longworth House Office Building, Hon. Cathy McMorris

presiding.

Present: Representatives McMorris, Tom Udall, Gibbons, Renzi,

Brown, Drake, Gohmert, Inslee, and Grijalva.

STATEMENT OF HON. CATHY McMORRIS, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF WASHINGTON

Miss MCMORRIS. The hearing will come to order.

This is the second and final hearing of the Task Force on Updating the National Environmental Policy Act. As I stated previously,

this Task Force will build upon the work of the prior NEPA Task

Force and put forth recommendations for updating and improving

NEPA.

Through the course of five field hearings and one hearing here

in Washington, the Task Force has conducted an unprecedented examination of NEPA and its impact. Witnesses have represented

nearly every sector of industry; national and regional environmental groups; tribal interests; as well as Federal, State, and local

governments. We have heard countless times and in countless ways

that NEPA is a good law born of good intentions. I completely

agree.

However, the Task Force has also heard that NEPA needs some

measure of reform. The reform ideas have not been to eliminate or

gut the law. On the contrary, there have been reasonable proposals

aimed at providing certainty and clarity to the NEPA process.

Despite what those who fear change would suggest, Congress has

a burden to ensure that the laws we create, like NEPA, continue

to meet their intent. Sometimes that means the laws need to be reviewed and revisited no matter how controversial that might be. It

has been the mission of this and the previous NEPA Task Force

to gather information and take a measured approach before embarking on the task of reforming NEPA.

2

This hearing will serve two purposes. The first is to understand

what lessons can be learned from previous hearings. The second is

to explore the possible effects of implementing the recommendations put forth by the Task Force.

One of the key elements of NEPA is public participation. In keeping with that practice, even though we only have six witnesses here

today, we want to hear from everyone; and I encourage anyone who

is interested to submit comments to the Resources Committee so

that we can take all thoughts and recommendations into consideration.

Do you have any opening remarks you would like to make?

Miss MCMORRIS. OK, at this time, I would like to introduce our

first panelist. To give us CEQ’s perspective on NEPA is James

Connaughton, Chairman of the Council on Environmental Quality.

I thank you for joining us here today.

It is the policy of the Resources Committee to swear in witnesses,

so if you would stand and raise your right hand.

[Witness sworn.]

Miss MCMORRIS. Let the record reflect that the witness answered

in the affirmative.

Miss MCMORRIS. So at this time—if or when Congressman Udall

arrives, we are going to give him the chance to make some opening

remarks, but at this point we are going to go ahead. So if you

would share with us your thoughts, we really appreciate you taking

the time to be here.

STATEMENT OF JAMES L. CONNAUGHTON,

CHAIRMAN, COUNCIL ON ENVIRONMENTAL QUALITY

Mr. CONNAUGHTON. Great. Thank you very much, Chairwoman

McMorris, Congressman and distinguished members of the

Committee. I am pleased to be here today to discuss the implementation and improvement of the National Environmental Policy Act.

I think I need to begin, Madam Chairman, Chairwoman

McMorris, reflecting on the time I spent in Walla Walla, in your

home district, where they are working on a project of national resource restoration that is a testament to the local involvement and

collaboration and broad interest group activity that leads to solutions rather than obstacles. So I think you have in your own backyard an example of the kind of process we want to replicate over

and over again in the implementation of NEPA.

That is why I was pleased to spend some time with you as you

launched your effort, and I am really delighted to be here as we

get to the back end of your public hearing process and look forward

as we move toward taking into account everything that you have

learned, and hopefully we can continue to provide you the strong

assistance that we have thus far.

Now, as the first modern environmental statute, NEPA is remarkable for its simplicity. Its foundational objectives, especially

those found in Section 101, are as relevant today as when Congress

passed it. As I am sure you are discovering in your review, the implementation and management of NEPA is a story of innovation

and success and one of challenges, hurdles, and barriers.

At CEQ, we are working to replicate the successes and address

the challenges through practical steps to increase the efficiency, the

3

effectiveness, and the timeliness of NEPA implementation. Let me

highlight a few examples.

First, CEQ now requires as a matter of policy that Federal agencies offer affirmatively tribal, State, and local agencies formal cooperating agency status when appropriate. Through increased

training, we are increasing the positive benefits of intergovernmental dialog.

Second, CEQ is working systematically to increase the internal

capacity of our Federal agencies to engage interested parties earlier

in the process and to use alternative dispute resolution techniques

to seek common ground.

I think it should be mentioned that the Morris K. Udall Foundation is working closely with us to help advance that capacity in our

agencies.

Third, in response to concerns from the field about judicial decisions that have created uncertainties about cumulative effects

analysis, CEQ recently issued guidance that reemphasized our

focus on using relevant, useful, available information about the potential effects of proposed actions.

And, again, bringing things back home, Chairwoman McMorris,

Federal District Judge Shay in your home district recently cited

the CEQ guidance in upholding the adequacy of an environmental

assessment prepared by the Forest Service for salvage sales.

Fourth, on May 18th, 2001, President Bush established the

Energy Project Streamlining Task Force, which has been available

to facilitate particularly challenging energy projects and to develop

more effective processes for NEPA analysis for certain categories of

energy-related projects such as liquefied natural gas terminal

siting and pipeline infrastructure. A memorandum of understanding we developed for pipelines was recently codified in the

energy bill that President Bush was proud to sign a few short

months ago.

Finally, CEQ established a NEPA Task Force of experienced senior career agency NEPA practitioners who produced the report

modernizing NEPA implementation. The Task Force and CEQ held

public roundtables around the country over the course of about 2

years, which generated a significant level of consensus and common

ground about important next steps to improve NEPA implementation.

With the Chairwoman’s permission, I would like to introduce the

report into your record as well as the stack of public materials,

which is—this is just a portion of them. In keeping with our goal

of using modern information techniques, we actually will simplify

it through the provision of digital versions of the very voluminous

record that we compiled that I think would be a strong contribution

to the record that you yourself compiled.

Miss MCMORRIS. Wonderful.

[NOTE: The information submitted for the record has been

retained in the Committee’s official files.]

Mr. CONNAUGHTON. About a dozen interagency work groups have

now been established to develop guidance for implementing the key

recommendations from the Task Force report. For example, they

are working on a proposal to implement a GIS—Global Information

System—enabled mapping of past and ongoing NEPA analyses in

4

order to provide a rich and publicly accessible data base of information. We have 35 years of information sitting on a shelf, and we

need to make that available and find efficiencies in its future use.

Another example from the Task Force is recent guidance that is grounded in the CEQ regulations calling for concise environmental

assessments. By concise, we mean short. The original 15 environmental assessments that implemented this guidance involve timber

harvests. Interestingly, only two ended up being administratively

challenged, and none were litigated. So we have found a template

that has achieved some measure of confidence and consensus.

Another innovative effort—and this is a modern tool that is not

familiar to many even up here in Congress—is the increased use

of environmental management systems as a mechanism to help

meet NEPA objectives and assure compliance with the substantive

statutes. An agency can effectively implement and use an environmental management system to retool its NEPA program and better

integrate it into their day-to-day management and policy and provisions, rather than have the NEPA process run forward as a standalone sort of a silo-based process.

Now based on the experience of 35 years and based on our recent effort in the last several years working with the Congress, we know

that we can and we must do better when it comes to the implementation of NEPA. While the statute has not changed in 35 years, the

statute itself requires that its implementation continually evolve

and improve; and that is why we look forward to this fresh look

that the Committee and the Task Force is bringing to NEPA in the

spirit of making sure we take advantage of what works really well

and replicate it massively and we begin to untie the knots of what

is not working well. So, to that end, Madam Chairwoman and distinguished members of the Committee, I look forward to a very constructive dialog.

Miss MCMORRIS. Thank you. I really appreciate you being here

this morning.

[The prepared statement of Mr. Connaughton follows:]

Statement of James L. Connaughton, Chairman,

Council on Environmental Quality

Madame Chairman and distinguished Members, I am pleased to be here today to

discuss the implementation of the National Environmental Policy Act (NEPA), and

the lessons we have learned over the past 35 years. I appreciate the Task Force’s

efforts to take a hard look at NEPA, and I welcome the opportunity to review the

Task Force’s findings and recommendations as a result of this process.

Today I want to reflect on the basic principles of NEPA, describe several steps

we are taking today to improve NEPA practice, and share some thoughts on NEPA’s

future and our goals at CEQ.

Basic Principles

As the first modern environmental statute, NEPA is remarkable for its simplicity.

It does not set forth overly detailed procedural requirements or regulations, but instead provides the foundation for a process intended to deliver better performance.

NEPA is a landmark statute that is as relevant today as when Congress passed it

in 1969. At its core, Section 101 of NEPA lays out a clear bipartisan vision of sustainable development:

‘‘(...) 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,

5

and other requirements of present and future generations of Americans. [42

USC 4331]

President Bush is committed to making consideration of the environment an integral part of how we conduct the people’s business. He continues to challenge us to

find new ways to improve our cooperative efforts to achieve our goals of enhanced

quality of life, environmental quality, and stewardship.

In my capacity as Chairman of the President’s Council on Environmental Quality,

one of my main responsibilities is to oversee implementation of NEPA. By focusing

on modernizing agency NEPA implementation, the President’s goal is to ensure that

federal decision-making is more effective, efficient and timely and that the goals and

objectives of NEPA are better aligned with that decision-making.

At CEQ, we have translated the President’s charge into five goals by which we

can measure our success in modernizing NEPA implementation:

1. Stewardship: We must empower ground level resource managers to be responsible and accountable for our nation’s natural, cultural and historic resources.

NEPA processes should empower local federal employees and their tribal, state

and local counterparts to identify and address all environmental aspects, and

provide for the future management of those resources. The NEPA process must

provide opportunities for public involvement early in the process and throughout.

2. Science based decision-making: NEPA analyses and documents must continue

to provide a solid scientific basis for managing environmental risks. Modern

technology can reduce duplicative efforts, by enabling agencies to use existing

datasets and analyses as a basis for future efforts.

3. Public involvement: Local involvement is the key. We emphasize efforts to engage state, tribal and local agencies as cooperating agencies to extend and expand public involvement.

Cooperating Agency status is the most formal way to provide opportunities for

tribal, state and local involvement. CEQ has required as a matter of policy

that federal agencies offer tribal, state and local government formal cooperating agency status. I would like to attach to my testimony a copy of CEQ’s

Memorandum to the Heads of All Federal Agencies on Cooperating Agencies

in Implementing the Procedural Provisions of NEPA (January 30, 2002).

In addition, we have increased our training for tribal, state and local government officials that have an interest in formal cooperating agency status. Our

efforts have had the effect of increasing the intergovernmental dialogue with

tribal, state and local governments. Indeed, even agencies that would rather

not assume the responsibility for a formal role have taken the opportunity to

enhance effective and timely participation.

4. Innovation: Market forces, incentives and research and development are three

ways to refocus our thinking about how future actions can protect our resources. NEPA analyses should include innovative mitigation and protection

measures that can take evolving technologies and practices into account.

5. Compliance: NEPA’s goal to enhance and protect the human environment includes the need to comply with environmental laws, regulations, and directives.

As directed in CEQ’s implementing regulations for NEPA, we must, to the fullest extent possible, integrate compliance with all environmental requirements

into a single set of directives and then translate that into our resource management operations and activities.

NEPA has been the subject of a comprehensive review in this and almost every

prior administration. One fact stands clear, the challenges, hurdles, or barriers to

effective NEPA implementation typically are not with the Act. In fact, it is how

NEPA regulations are implemented that most needs improving and modernization.

The efficiency and effectiveness of NEPA implementation has been and is the

focus of numerous practical steps CEQ has undertaken to modernize NEPA practice.

We are now implementing recommendations made by the CEQ NEPA Task Force

in its 2003 report to CEQ, Modernizing NEPA Implementation. Let me highlight

several consequential examples.

Public Involvement

The NEPA process brings together interested parties with various perspectives

and views. NEPA provides all interested parties a voice and a role in framing our

decisions. This aspect of NEPA has proven successful in avoiding, resolving, or at

least lowering the temperature of the conflicts that can complicate environmental

and natural resource management and policy.

CEQ regulations call for public involvement in all NEPA analyses, and we

continue to encourage agencies to be proactive in engaging the public in NEPA

6

activities at all levels. Early involvement by a better informed public narrows potential conflicts—we know this from 35 years of practice and experience.

Conflict Resolution

To further minimize potential conflicts, we must also ensure that interested parties participate in the ongoing dialogue and are closely associated with our decisions. In doing so, we ensure that interested parties have a sense of ownership of

the outcome, even if the outcome is not exactly as they want.

While litigation is one subset of the ways conflicts can be addressed, it can be

costly and time consuming, and is not the only way in which conflicts can be resolved. CEQ is working with the Institute for Environmental Conflict Resolution at

the Morris K. Udall Foundation to systematically increase the internal capacity of

federal agencies to use alternative dispute resolution techniques early in the process, bringing parties together to seek common ground and accept compromise. We

have referred specific matters to the Institute for assessment and mediation, and

I would commend the Institute’s work to this Committee.

We are now in the process of implementing changes designed to improve and

focus the NEPA process. I especially want to highlight today the work of the CEQ

NEPA Task Force, and thank them for more than three years of efforts on this important topic. The task force included seasoned, experienced agency NEPA practitioners who sought input and advice from every sector.

Their report, Modernizing NEPA Implementation, was issued in September 2003.

Subsequently, public roundtables were held around the country to review the report

and its more than 50 recommendations. I ask that the full report, public comment

records, and reports from the public roundtables be entered into the hearing record

along with my testimony.

Cumulative Effects

Recently, there has been concern at the ground level over the increasing scope of

cumulative effects analysis being required by the courts. In response, CEQ recently

issued guidance on consideration of past actions in agencies’ cumulative effects analysis. That guidance re-emphasized our focus on using relevant, useful, available information about the potential effects of proposed actions. Judge Shea in the Federal

District Court for the Eastern District of Washington recently cited CEQ’s guidance

in upholding the adequacy of an environmental assessment prepared by the Forest

Service for salvage sales in the Conservation Northwest v. Forest Service (Case

2:05-cv-002200-EFS, filed 08/26/2005).

Energy Projects

On May 18, 2001, pursuant to a recommendation contained in the Administration’s National Energy Policy, the President signed Executive Order 13212, establishing an interagency Task Force on Energy Project Streamlining (‘‘Energy Project

Task Force’’) to monitor and assist federal agencies in their efforts to expedite their

review of permits and actions. The Task Force sought to accelerate the completion

of energy-related projects, increase energy production and conservation, and improve

transmission of energy. Operating under direction from CEQ, the Energy Project

Task Force originally focused on both specific proposed projects and broader management issues. The Energy Project Task Force is still active today with responsibility for specific proposed projects now lying with the lead agencies, and CEQ focused on providing guidance and developing processes to address the effective, efficient and timely preparation of NEPA analyses and documents for energy-related

projects.

Liquified natural gas (LNG) terminals and pipeline infrastructure are two areas

where, as a result of the work of the Energy Project Task Force, we have taken

great strides in developing a timely, collaborative NEPA framework. We developed

Memoranda of Understanding (MOU) that call for early coordination among all federal agencies with a role in making and implementing the proposed actions involving pipelines and LNG ports and terminals. This process calls for developing and

adhering to timelines as well as providing opportunities for tribal, state and local

involvement.

Healthy Forests

In carrying out the President’s Healthy Forest Initiative, a large part of the administrative response to the threat of increased devastation from wildfires involved

categorical exclusions and environmental assessments. Categorical exclusion is a

term that I find implies an exemption or exclusion from NEPA. In fact, a categorical

exclusion is based on the administrative record that demonstrates through reasoned

analysis and consideration of past activities that certain classes of actions typically

7

do not individually or cumulatively have significant effects on the human environment.

This application of NEPA requires that the analysis be done up front to identify

those forest hazardous fuel reduction activities that merit exclusion from further

analysis in an environmental assessment or environmental impact. Of course, under

CEQ’s NEPA regulations, agencies must allow for ‘‘extraordinary circumstances in

which a normally excluded action may have a significant environmental effect’’

when applying a categorical exclusion to a specific proposal. Use of categorical exclusions allows agencies to focus on activities that do have the potential for significant

environmental impacts.

Similarly, CEQ provided guidance grounded in our regulations that called for focused, concise and timely environmental assessments. Although 15 environmental

assessments were originally prepared for the first hazardous fuels reduction forest

thinning projects that involved timber harvests, only two were administratively

challenged, unsuccessfully, and none were litigated.

Information Technology

Another set of recommendations is focused on improving our use of information

technology. My alma mater, Northwestern University, houses the most complete library of Environmental Impact Statements (EIS) in the country. We are working

with partners to develop a proposal to implement interagency GIS-enabled mapping

of past and ongoing analyses to provide a rich database of existing information, facilitate timely access to information by decision makers and the public, and provide

perspective on the number, extent and cumulative effects of proposed actions nationwide. It is now time to use today’s technologies to make the wealth of information

in NEPA documents more readily available.

The Task Force report also calls for guidance that empowers agencies to prepare

concise, focused environmental assessments. Implementing these recommendations

will help focus decision-makers on analyzing and documenting the types of proposed

actions likely to have significant environmental impacts and merit documentation

in an EIS.

Environmental Management Systems

The Task Force also recommended increased use of environmental management

systems as a tool to help meet our objectives under NEPA. An Environmental Management System (EMS) is a set of processes and practices that enable an organization (like a federal agency) to reduce its environmental impacts and increase its operating efficiency. Building on EMS concepts, an agency can retool its entire NEPA

program to include:

• Procedures to identify an agency or facility’s environmental impacts and set objectives and targets for improved environmental performance;

• NEPA implementation and operation systems that set responsibilities, require

training and awareness from everyone according to their responsibilities, and

use NEPA for documentation and operational controls;

• Practical programs for checking and corrective actions, including monitoring

and measuring performance towards continual improvement targets; and

• Management review requirement, not just for the signature on a decision document, but also to ensure that the NEPA program is suited and continually

adapted to changing conditions and information

This process can help translate the general concepts of NEPA into day-to-day

management and policy decisions that reflect our commitment to continual improvement, pollution prevention, compliance with relevant environmental laws, and additional requirements that an agency-has voluntarily adopted.

We encourage federal agencies to look at EMS as their main tool to implement

NEPA. Agencies must still apply the statutes and regulations because EMS requires

agencies to assess all environmental aspects including compliance obligations. It

therefore does not avoid elements of NEPA; it actually embraces and amplifies the

philosophy of NEPA.

Conclusion

It is a testament to the vitality of NEPA that the statute has not been changed

in 35 years in any substantial measure. CEQ regulations themselves have stood the

test of time. NEPA has however undergone comprehensive review in this and almost

every prior administration. To put the Act in perspective, federal agencies prepare

annually approximately 50,000 Environmental Assessments and 350 Environmental

Impact Statements. Between 2001 and 2004, approximately 140 cases were filed annually involving a NEPA-based challenge, and approximately 13 injunctions were

issued each year.

8

We take great pride at the federal level that 20 states have adopted a State-level environmental planning process that is similar to NEPA. Furthermore, many countries around the world have taken NEPA as a model for their own environmental

review practices.

But we can and we must do better. We must renew our efforts to provide decision

makers and the public with relevant and timely environmental analyses that add

value to the way federal agencies go about their business. By returning to the core

principles of NEPA practice as it was intended and learning from the past 35 years

of implementation activities, we can modernize NEPA practices for the new millennium.

I am committed to working with you and all interested parties involved to con- tinue a living NEPA process. Senator John Chafee, one of the greatest environmental statesmen of the Senate, described NEPA as a ‘‘tall order, but an important

one.’’ I agree and look forward to the Committee’s report and recommendations. Thank you very much.

Miss MCMORRIS. If you would just take a moment, I would like to hear a little bit more about CEQ’s Task Force; and if you would

just share some of what have been some of the successes and then

also some of the challenges in implementing the recommendations

that you were able to gather in your efforts around the country

with the Task Force.

Mr. CONNAUGHTON. Thank you very much. When I came into my job in June, I inherited a couple of decades of NEPA problem statements. So NEPA is constantly being under

review, there is constant questions and concerns about its implementation, and we have a fairly good and long record of a lot of

the challenges in its implementation. Sitting down with my senior career staff, who have collectively probably a century’s worth of NEPA experience—maybe I’m dating

them too much—that they strongly recommended that we pull over

to the White House some of the most seasoned NEPA experts from

the agencies. Some of these professionals have been working on

NEPA since its inception, so a few of them have been at it for 35

years. We brought them to the White House; and we said, we don’t want to tell you what needs to work best. We would like you to do

a process, canvassing your agencies, canvassing outside parties,

and tell us what we think can help you do your job better.

It was a wonderful process. We had open houses for the public

to come in. Everything we did is posted on the—was posted on the

Web site. In fact, I think we innovated anything FOIA-ble we put

on the Web site. So there was no—we didn’t need the statute

FOIA. We just made the information available as it came in to us

so everybody could see what was coming in. And then we received

a whole series, 50—more than 50 groupings of recommendations

from the Task Force.

Now we didn’t stop there. We then went out and had about I

think it was six public hearings about the recommendations from

the Task Force to be sure that we—you know, did we get it right?

Did we not get it right? All for the purpose of then coming back

into CEQ to say, all right, we have the senior officials, we have the

public, they have commented on the recommendations. Now how

can we go forward? So we now have a blueprint for action in this

Task Force evidence.

What is great is the Task Force members are now back at their

agencies, and they own their work product. So they are very

9

excited about carrying forward what they have achieved, and that

has led to these subinteragency groups that I mentioned.

A few items just to give you an example. We are pushing environmental management systems throughout the Federal Government. We are on target to the implementation of 1,800 environmental management systems at Federal facilities and Federal

lands operations. We have a very specific focus on collaboration and

cooperative conservation as an ethic to the agencies that will assure earlier public engagement and involvement in the NEPA process, which tends to minimize disputes.

Then we also have very specific, good old-fashioned roll-up-yoursleeve type stuff, which is a lot of the greater use of information

technology, how to use Web-based resources, how we share information technology. These are the kinds of things that—you know,

what happens within the NEPA process if you do a big EIS, you

sort of wipe your brow and say, thank goodness, I’m done with

that; and it sits on the shelf. Well, we want to translate this historical record into a living record, and we want to translate future

processes into a living process of adaptation as we’ve learned from

our experience in carrying out the Federal activities that give rise

to NEPA to begin with.

So it’s a—you know, I have given you just a quick snapshot. But

we have strong consensus on the recommendations. In fact, I am

pleased that I can only report a few naysayers on just a few issues.

I mean, that’s how strong this foundation is.

I think it’s the kind of record that we hope the Committee will

look closely at, because I think there are a number of areas, whether it’s in the context of NEPA itself or the context of the statutes

that govern agency activities, a lot of these recommendations could

use the force of congressional approval.

Miss MCMORRIS. From my perspective, the effort by this Task

Force is to complement what you have already started and just to

take a look at where we can even maybe do some more work to encourage further improvement of the process.

Mr. CONNAUGHTON. Well, and the example I would give is the

pipeline memorandum of understanding which now found its way

into the energy bill. So we now have—it’s statutory, which is fabulous. Also, in the healthy forest context, we made a number of very

effective improvements to the NEPA process for forest restoration

work, and that found its way in with additional concepts and ideas

from the Congress in the Healthy Forest Act which earned tremendous bipartisan support.

Miss MCMORRIS. Would you just—while you are on those two

subjects, because there were NEPA-related provisions in both the

Healthy Forest Restoration Act and the energy bill, would you comment on those who suggest that this is death by a thousand cuts

to NEPA?

Mr. CONNAUGHTON. Actually, it’s improvements by many measures to NEPA. We have 35 years of experience, and you are supposed to learn from your experience. And when you learn from your

experience about something that works better—you know, it’s the

job of the Administration and it’s the job of the Congress to make

things better. And I think when you look at the breadth of support

for the healthy forest provisions on NEPA, the bipartisan support

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in the Senate was 81 votes, for example. I think that gives you a

good sign that this is a net improvement to environmental protection and a net improvement to good government.

So I can talk about this highly qualitatively. You know, if you

want, I can get into the wonky weeds as well.

Miss MCMORRIS. No, that is good, very good.

Congressman Gohmert, do you have any questions?

Mr. GOHMERT. Yes, thank you, Madam Chairwoman.

I appreciate your testimony here today, Mr. Connaughton.

Following up on the last line of questioning, you had mentioned

that some of the regulations had found their way in the energy bill

and the healthy forest bill, and you had said that was fabulous.

There are, of course, some commentators that believe the CEQ regulations and guidance are somewhat ignored by agencies and

courts. Since you felt that was fabulous that those were included,

why not amend the NEPA Act itself or NEPA itself to put more

teeth into the CEQ regulations?

Mr. CONNAUGHTON. Well, there are two categories of potential

statutory improvements. So one is what we talked about, which is

where the overall framework of NEPA and the flexibility of the

CEQ regulations, which are just 20 pages long, they are not very

intensive, where what is needed is how you tailor that broad guidance to a specific subject matter, such as forest management or

energy projects, for example. Or, for that matter, we just had a recent highway bill that had some very useful NEPA provisions in it.

So there is a category where what is actually not at issue—

NEPA is not at issue, the statute; and the CEQ regs aren’t at

issue. What’s at issue are implementing mechanisms which it’s

helpful to codify the statute so we don’t have litigation that delays

our ability to put them into effect. You know, people fear change,

although NEPA compels change, the statute itself. It’s—the whole

implication of it is we have change and improvement.

Now there is the category of are there places where you can improve or enhance the CEQ regulations? Are there places where you

can add to the NEPA statute? And I think that’s what the subject

of this Task Force activity has been.

I have seen a number of very interesting ideas coming out of the

public process that you have engaged in on subjects such as

timelines, on subjects such as cooperating agencies, on some of

these what I would call horizontal subjects that would apply across

the government; and I think that would be a place where we would

want to look.

I would want to be careful about using a NEPA statutory amendment process to deal with what really are subject matter implementation issues, because we should focus this broader NEPA effort on these things that will have horizontal benefit to all these.

Mr. GOHMERT. You yourself indicated that litigation was a problem; and if you have seen the chart showing the rise in litigation

over the years since NEPA has been in effect, clearly something

needs to be addressed. And, yes, NEPA does have a lot of overall

flexibility.

The problem with that is that not all judges had the philosophy

that I did that I believed was part of the Constitution, that you

shouldn’t legislate from the bench. So flexibility to some judges is

11

seen with great glee, meaning I’m going to do the legislating myself

from the bench. Some of us left the bench and ran for the legislature to get to do that; others just go ahead and take their robe as

a right to do that. That is why I’m concerned that we need to take

some of the flexibility out and make it more rigid so even the more

ignorant judges—of the Constitution, that is—would understand

what the law says when it’s in black and white.

But there have been some recommendations that CEQ itself

might be an arbitrator in helping resolve some disputes. What are

your thoughts on that?

Mr. CONNAUGHTON. That is an activity that we engage in frequently. Usually, it tends to focus on the higher-profile and highly

complex issues; and the NEPA statute and the regulations itself

has a process built in for bringing issues of interagency conflict to

the Council for resolution.

What we found is the built-in process is a bit formalistic when

we can achieve mediated or arbitrary outcomes in a more collaborative fashion, and so that would be a very good area for us to talk

about.

But I would also underline, even more importantly, building capacity in the agencies to engage in dispute resolution is probably

a bigger long-term benefit than putting a huge focus on bringing

all of those to the White House. Because what happens is if you

get agencies in disagreement or they are in disagreement with the

States, people stake their ground waiting for the judge and the

White House, and it ups the stakes. When what we really want is

local accountability and local responsibility for reaching reasonable

outcomes. So I would look at both.

Mr. GOHMERT. Thank you.

Miss MCMORRIS. Representative Grijalva.

Mr. GRIJALVA. Thank you very much, Madam Chair. If I could,

for the Chairman, let me go into your written testimony; and I

apologize for not being here for your oral testimony.

In part of your written testimony, you make the statement:

NEPA has been the subject of a comprehensive review in this and

almost every other prior administration. One fact stands clear, the

challenges, hurdles, or barriers to effective NEPA implementation

typically are not with the Act. In fact, it is how NEPA regulations

are implemented that most needs improving and modernization.

Could you elaborate on that point?

Mr. CONNAUGHTON. Yeah, I could.

If you take the NEPA as it was enacted, which has broad general

guidance and then a number of administrative provisions, the general guidance in the statute itself, I haven’t seen any recommendations to change what’s there, OK, what’s in the statute. So that’s

stood the test of time.

What we do see is, on implementation, which is things that are

either, one, missing from the statute or things that are the subject

of how the agencies implement what the guidance that comes from

the statute and from the CEQ regs.

So, to give you a concrete example, an issue that’s emerged has

been the issue of timelines for statutes of limitations, for example,

or the need for setting clear timelines and management plans for

when you do a NEPA. That is an issue of horizontal interests. You

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know, it would fall under the broad umbrella of the statute, and

that could be a useful addition to the NEPA statute.

Then there’s other categories that are best addressed as they

were in the energy bill and the highway bill and in the healthy forest legislation.

Mr. GRIJALVA. But the substance of the Act, based on your writing that the Act is not the problem, and so—and as I understand

your testimony, you don’t really have any concrete, specific recommendations from your office as to the kinds of discussions that

we’re having about NEPA and what needs to be changed there. Am

I correct in that assumption?

Mr. CONNAUGHTON. Well, actually, our office has identified,

through the Task Force report, which I mentioned in my oral testimony which I would encourage you to——

Mr. GRIJALVA. For Congress to adopt.

Mr. CONNAUGHTON. There are elements in this that could be useful if codified, because it would assure that this is not just something being advanced by the executive branch but is something

that the Congress has wholly endorsed and supports and would get

behind in terms of moving the agencies forward. This activity deals

with the issues of NEPA implementation that cut across agencies.

So therefore——

Mr. GRIJALVA. But not specific to an action that Congress needs

to take in terms of the Act.

Mr. CONNAUGHTON. I think it’s a useful foundation for areas that

Congress—we would welcome congressional—a hard look by Congress.

Mr. GRIJALVA. In the conclusion of your written testimony—and

that will be my last point—and we have heard a lot of discussion

about how NEPA is burdened some in terms of its regulation, how

it slows things down, how the challenges occurred legally and how

that has been—that is the central problem that theoretically this

Task Force is looking at. In your written testimony, you say: To put

the Act in perspective, Federal agencies prepare annually approximately 50,000 environmental assessments, 350 environmental impact statements. Between 2001 and 2004, approximately 140 cases

were filed annually involving a NEPA-based challenge, and approximately 13 injunctions were issued each year.

It begs the question about, is this really theoretically the kind of

burden that we have been hearing from some of the witnesses during this Task Force hearing?

Mr. CONNAUGHTON. Well, actually—so let me amplify on the

point in my testimony. I emphasize in my oral testimony that we

have a rich experience of highly successful and innovative NEPA

implementation. It doesn’t produce conflict. Agencies go about their

business. The local communities are well satisfied. We need to take

those successes and figure out how to apply them in the places

where we do hit train wrecks, and we’ve had some big train wrecks

under NEPA.

If you think of the way litigation works, 140 cases a year, you

know, over 20 to 30 years, and then behind that are all the cases

that didn’t get filed or the NEPA processes that got unduly delayed

or were just dropped, you know, that’s a pretty sizable effort of

conflict in government.

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Now—so we can look to this area that works really well and say,

hey, so what’s going on there that’s working well and how do we

apply it in the situation where we do hit some pretty big roadblocks?

You know, if you have highway projects delayed for 10 years because of NEPA, that’s a real burden to that community. And, by

the way, NEPA applies on the community level, and so I wouldn’t

want to discount the challenges and obstacles that this process can

create. So our goal is how do we make it more effective, more timely, reduce the potential for conflict? That’s the kind of thing that

presumably everyone should be able to get behind, and we’ve got

some good ideas for how to do that.

Mr. GRIJALVA. Thank you, Madam Chairwoman. I don’t think

you eliminate controversy by undoing public process——

Mr. CONNAUGHTON. Not at all.

Mr. GRIJALVA.—and I would hope that’s not the intent of the testimony.

Mr. CONNAUGHTON. No.

I would note, in the Task Force recommendations and guidance

that CEQ has done in the last several years, we have actually

worked to amplify public involvement by cooperating agency status

by—and also by specific direction of earlier public involvement in

planning and decisionmaking and through integrating the NEPA

process into those planning efforts, rather than have it occur in

some separate process. So our goal has actually been to amplify

and bring public involvement sooner as a way of reducing conflict.

Mr. GRIJALVA. Thank you, sir. Thank you.

Miss MCMORRIS. Mr. Renzi.

Mr. RENZI. Thank you very much.

Thank you for your testimony. I want to continue along this line

of questioning just with a little maybe clarification and teaching

from you to me so I can understand a little bit better.

I can remember back when we voted out of this Committee the

Forest Health Initiative, the new standard that would be put in

place that a judge who issues an injunction would have 45 days to

then have to take up that injunction. It was meant to be a resource

and an asset to the communities that were affected, particularly

like in my district the wildfires that we had, or those that were of

the opinion that sometimes the litigation process was being used

as a delay tactic more than anything else.

It is interesting to hear you talk about arbitration, maybe binding arbitration, before a person goes to court. Is there any recommendations or thoughts that you have on having a new NEPA

reform policy that would include some sort of a factor or a day limit

or an ability for a judge, if he does issue an injunction, for him to

have to take it up in his own court within a certain time frame?

Now I know the 45 days was eventually compromised in the Senate

version, but do you have any thoughts on that?

Mr. CONNAUGHTON. Yes. Let me speak specifically to the example you have raised, Congressman. In that instance, the process

was designed such that, if there was a conflict, we would get to

court faster. Because in that case a decision delayed would be a decision denied because you would lose the environmental benefit of

the forest restoration. So by delaying the process it would no longer

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become viable or valuable to do the forest restoration work if you

had to wait a year until the next season.

So that’s one of those examples where we encouraged early public involvement and then very early—if there’s going to be a conflict, very early judicial review and then very prompt judicial decisionmaking. Because our concern was we would lose the environmental benefit of the restoration project.

So that’s a clear example where a tighter process and a more

clearly defined process would produce a significantly greater environmental benefit on a long-term scale. So this is an area that is

very worthy of looking at.

What we would want to be cautious about is the question of:

Could you do it on a one-size-fits-all basis? A forest restoration

project to remove some dead wood and restore the ecological foundation is one set of activities. A major highway project is something

different entirely. So there are some areas where we could I think

shape a horizontal approach. There are others where we would

have to figure out how to tailor it to meet differing needs.

Mr. RENZI. I had a major highway project, and the cost of concrete was skyrocketing daily. Do we have a time element there?

Mr. CONNAUGHTON. To me, it’s not whether you would do it. It

is how you structure the time element. You know, 45 days for a forest project may be different in a highway context. That’s the only

caution I would raise.

I would note, though, under another executive order we have a

Highway Task Force to streamline the NEPA process there, and

we’ve actually been able to cut years off the planning and implementation process. That goes directly to the point you raise. We

can save the taxpayer millions of dollars in costs to achieve a desired project if we do this process more effectively. And we have

some very good examples now—we’ve been at it for a couple of

years. We’ve got some very interesting examples that would be a

model for how to do it in other highway projects. And I think, you

know, if you’re interested in that, we have a pretty good record

that relates to that as well.

Mr. RENZI. Excellent. Thank you for your comments.

Thank you, Chairwoman.

Miss MCMORRIS. At this time, I would like to welcome Mr. Udall

to make any comments, opening statements you would like to

make, and then proceed with questions.

Mr. TOM UDALL. Thank you very much, Madam Chair; and let

me apologize for being late. We had a caucus meeting with Congressman Jack Murtha, who is one of our major leaders on policy

in Iraq. He is making a major statement today to the press as to

how we should proceed, and I just came from there. So I apologize

for the lateness.

Madam Chair, we join you in welcoming our panel of witnesses

and thank them for their time and effort to be with us today. In

particular, we are pleased to be joined by James Connaughton,

Chairman of the Council on Environmental Quality; and we look

forward to hearing from him regarding the Bush Administration’s—on some of the allegations that have come up during

previous hearings.

15

Let me also say I have enjoyed working with you and other members of the Task Force. It has become apparent that the lessons we

will take away from this process may be very different, but I have

appreciated your cordial and fair approach to our work together,

and I thank you for that.

As I indicated, it now seems clear that my view of NEPA differs

significantly from the views of those who have come before the

Task Force to criticize the statute. Where they see delay, I see deliberation. Where they see postponed profits, I see public input.

Where they see frivolous litigation, I see citizens requiring their

government to live up to its responsibilities. And where they see

a barrier to development, I see a shield that protects average

Americans from the short-sightedness of a massive Federal bureaucracy.

The characterization of NEPA put forth by critics is at odds not

only by the record developed by this Task Force but also with the

history of the statute. NEPA is the brain child of environmental

moderates, many of them westerners like the great Scoop Jackson

of Washington who championed the deliberative public process included in NEPA. The law operates as an antidote to the arrogance

of big government and thus should be embraced by anyone who

trusts the American people to take part in managing their public

resources.

We look forward to hearing from our witnesses today during this

wrap-up hearing and await a final report of this Task Force. And

if I may proceed to a question at this point, Madam Chair, since

I still have some of my time left, with your permission.

Miss MCMORRIS. If you would just give him 5 minutes of time.

Mr. TOM UDALL. Thank you.

Mr. Connaughton, I notice in your testimony—and this is at page

4—you talk about NEPA has been the subject of a comprehensive

review in this and almost every prior administration. And you say:

One fact stands clear. The challenges, hurdles, or barriers to effective NEPA implementation are typically not with the Act. In fact,

it is now NEPA regulations—in fact, it is how NEPA regulations

are implemented that most needs improving and modernization.

Could you talk to us a little bit about the thrust of that statement, that it’s the NEPA regulations and what you’re intending to

do and how you’re moving on that?

And can you tell us in a definitive way that you don’t want

changes to the statute, as I’m sure your staff and others have

heard from our hearings that we have had that some have called

for outright repeal of NEPA, others have called for various changes

in the statute. Is the Administration position that this is a good

statute and it should be left in place and that what we want to

see—what you, as the Administration, want to see is a movement

to make it a more effective statute rather than repeal? Please.

Mr. CONNAUGHTON. I will expand a little bit on some remarks I

gave to an earlier question, Congressman.

The record—first of all, I talk about reviews over time. I indicated in my oral testimony that we have a lot of problem statements that have been produced over time and some movement on

solving the problems. But in all of those episodes—and I think it’s

true of the record of this Task Force, that there is a broad core of

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activity under NEPA that is working great, OK? And I think, in

my conversation with Members from both sides and from east and

west, there’s a recognition of where it’s doing really good work and

working well. And then there is a subset——

Mr. TOM UDALL. Your report—your Administration report basically said that, did it not?

Mr. CONNAUGHTON. That’s correct. So what we are really focusing on here, Congressman, are the areas where we are facing challenges and some hurdles and maybe some inconsistencies. So from,

you know, where I sit, I’m actually very pleased at how well the

statute’s working because it allows us to take then a much more

deliberate and focused look at the places where we do have big

challenges. And we do have big challenges. We’ve encountered

them in the energy area, we’ve encountered them in the forest

area. And the nice thing, though, is the bundle that we need to

look at is small in relation to the overall operation of the program

and its successes.

Now, in terms of the statute, also from what I have seen, including from the record of this Task Force, is the current text of the

statute, nobody is taking issue with it. I mean—and so in that

sense the original goal—but as you know, Congressman, it’s broad

aspirational text, and that has stood the test of time. In fact, it is

my view we actually need to go back to the future on that text, because it calls for a level of adaptation of thinking and flexibility

and public involvement that we still do not realize in its implementation.

So when I go over the record of our Task Force activity, which

was done by senior career officials from across the government, and

when I look at what this Task Force has conveyed, what I see are

some opportunities for additions to the NEPA statute that would

provide very helpful guidance and, by the way, some additional inspiration to the government actors who are charged with the very

mission that you described so eloquently in your opening statement. And we shouldn’t be afraid of that.

If we found the ability to provide some more specific direction on

timelines, to provide some more specific direction on the nature of

public involvement, and we know from experience that these processes are very good, we shouldn’t be afraid to then take something

that could be more ambiguous or subject to litigation in the administrative context and clarifying it and solidifying it in the legislative context. Which is why we did it in the energy bill. We did it

in the highway bill, again, with strong bipartisan support. We did

it in the healthy forest bill with strong bipartisan support.

I think there should be bipartisan interest in these very specific—and these are good-government type of recommendations

we’re looking at. There should be strong bipartisan interest in continuing that improvement cycle.

Mr. TOM UDALL. There is—and I see my time is out. But are

there any specifics that you can share with us today on additions

to the statutes, as you put it, or the—I don’t see anything in your

testimony that—where you talk about specific changes or additions

to the statute. Are you prepared to do that today?

17

Mr. CONNAUGHTON. This hearing is in the information collection mode, and we are waiting for the report of the Task Force itself to

comment on what they’ve zeroed in on. I would just note that in preparing this process through our Task Force, which deals with these issues I described as horizontal, that

would apply across all agencies, we have 54 categories of recommendations. And we’ve commended this to the Task Force for

consideration as we look at ways of improving the direction that

comes from the statute. So I wouldn’t want to cherry-pick at this

moment.

I would be—we are making progress administratively to carry this forward. Some of this will go forward without any problem,

some of this may be subject to processes that would delay it, and,

therefore, to get a legislative lift to it would be highly welcome. But

I don’t want to prejudge that right now. I think we are in a good,

constructive dialog mode, and I don’t want to leave things out, I

don’t want to say things must be in, because I see some good consensus around some themes, and I wouldn’t want to prejudice that.

Mr. TOM UDALL. Thank you. And, Madam Chair, I thank you for your courtesies; and I would just ask unanimous consent to put the opening statement of Representative Nick Rahall, our Ranking Member on the Resources

Committee, into the record.

Miss MCMORRIS. Without objection. [The prepared statement of Mr. Rahall follows:]

Statement of The Honorable Nick J. Rahall, a Representative in Congress from the State of West Virginia

Madame Chairwoman, thank you.

Let me thank the Ranking Democrat on this Task Force for his excellent work. Tom Udall understands that most Americans whose lives and livelihoods are directly impacted by federal land management decisions want more information about

those decisions and more public input into them, not less. Congressman Udall has

been an advocate for NEPA and, therefore, an advocate for open, responsible and

representative government and we thank him for his efforts.

In addition, I would like to thank the other Members of the Task Force from our

side of the aisle for their work, in particular Representatives Jay Inslee and Raul

Grijalva, both of whom provided leadership, as well as insight and energy to this

process.

Madame Chairwoman, the record developed by this Task Force is extensive, but

it is not sufficient. To the extent this Task Force was designed to provide a body

evidence for the need to amend NEPA, it has failed.

Perhaps this is because this Task Force plowed very little new ground. Both the

Clinton and current Bush Administrations conducted comprehensive reviews of the

law and made specific recommendations for improving implementation without

amending the statute.

Or perhaps it is because the argument put forth by industry witnesses—that federal agencies should act less deliberately and enable more rapid public lands profiteering—failed to resonate with an American public stung in the wallet by huge

energy conglomerates, likely the greatest beneficiaries of NEPA changes, that are

now enjoying the largest profits in American history.

Or perhaps it is because the credibility of this Task Force was repeatedly undercut by this Committee when it made sweeping changes to NEPA in the energy and

budget reconciliation bills despite the fact that this Task Force had not completed

its work.

Regardless, the burden of proof rested squarely on those proposing to change

NEPA and that burden has not been met.

Now we fully expect those proponents to pursue legislation to amend NEPA despite the lack of justification. That is their prerogative.

But any such legislation must be seen for what it is—an attempt to limit public

input into federal decision-making and to weaken judicial enforcement of the law—

18

rather than as the solution to some poorly defined problem with NEPA this Task

Force was unable to uncover.

And we would caution our colleagues that such legislation will almost certainly defeat its stated purpose. Through collaboration and good planning, NEPA avoids

more litigation and delay than it causes. We face the ironic probability that ‘‘fixing’’

NEPA will create the very problems proponents of change claim to want to resolve. Madame Chairwoman, this Task Force set out to reveal problems with NEPA, but

in the end, the record it developed simply proves what we have argued all along:

NEPA is not broken and does not need fixing, particularly not the kind of ‘‘fix’’ we

fear proponents have in mind.

Thank you.

Miss MCMORRIS. Mr. Brown.

Mr. BROWN. Madam Chair, thank you very much. I notice that we have a vote coming up at 11:30 to 12:00, so I just want to ask

these questions. But I do welcome and certainly enjoy the dialog.

Thank you, Madam Chairman.

Miss MCMORRIS. Would you just—there has been some conversation about codifying some of these NEPA recommendations, some

of the Task Force recommendations. Would you just—as I’m hearing you speak, you do believe that there is opportunities—I like the

idea of additional inspiration, that there may be opportunities

where we could actually strengthen and improve by clarifying, adding to the statute when it comes to NEPA in such a way that would

improve the process. Is that what I’m hearing you saying?

Mr. CONNAUGHTON. That’s correct.

I think, Chairwoman, you use the words clarity and certainty.

You know, certainly some of the timeline issues that have emerged

are issues that have created hesitancy out in the field, some of

these issues related to dispute resolution.

I would note, Congressman Udall, the institute that bears your

name is doing leading work with the Federal agencies to teach

them how to engage in broader public involvement processes earlier and then to teach them how to access dispute resolution processes before we find our way into courts. You know, that is something that was not even considered in 1969. But certainly the institute has done landmark work not just nationally but globally in

how to expand that capacity. And it’s not something our agencies

budget for as much as they could, it’s not something that the State

and local actors are used to participating in, and so these are the

places that I think about in terms of improvement.

And it’s also the case on this integration issue it’s very important. Because when NEPA was created we didn’t have all of our

modern environmental statutes. You know, we didn’t have the

Clean Air Act yet, we didn’t have the Clean Water Act, we didn’t

have RCRA, we didn’t have some of the more recent improvements

to our natural resource management laws, all of which have added

new processes to deal with the substantive elements of those statutes that then run in parallel with the NEPA process.

Really what we need to find is to find a way to converge those

processes. Because that’s really what NEPA intended. You know,

NEPA was ahead of time. I use the phrase we need to go back to

the future, take its central mission and figure out now how to bring

in a better coordinated and a more efficient process. Because by

fundamental is: If we are using up taxpayer resources on process

and not producing a good environmental outcome, those are

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resources that are not being utilized in other places. So the more

we can take off the shelf things that aren’t creating impacts and

streamline those processes and dedicate our resources to the areas

that require real deliberation and, in fact, a higher investment in

information collection and information dissemination, then as a

Nation we are better off.

You know, this is efficiency, this is productivity, and—but we

cannot lose sight of the original mission of NEPA, which is productive harmony. Productive harmony is a very important phrase from

that statute.

Miss MCMORRIS. One of the concerns that has been raised is that

there is a difference in implementation among the agencies, and

I’m interested in your efforts with the environmental management

systems. And you mentioned that there’s 1,800, I think you said in

your testimony.

Mr. CONNAUGHTON. We are on our way.

Miss MCMORRIS. OK.

Mr. CONNAUGHTON. We have a lot of work to do, but we’re on our

way.

Miss MCMORRIS. Would you just elaborate a little bit more on

how many agencies have these systems in place and how would

these systems be affected by changes to NEPA or its regulations?

Mr. CONNAUGHTON. More than—it’s probably about two dozen

agencies are working on one or more EMSs. Obviously, the Department of Defense is working on many of them, environmental management systems. Where the environmental management system

approach has its greatest application in NEPA context is for ongoing Federal operations, you know, the operation of a base, a forest

plan. You know, these are ongoing operations. Where, if we could

enhance their capacity to do an environmental management system, which is a plan—it’s a planning by objective, and then it has

a management review cycle to it and has ongoing improvement,

that whole philosophy and approach is actually broader and more

effective than the NEPA process. So it can be used to harness the

NEPA process and also then harness in all of these other substantive statutory requirements into a more orderly system of management. It also gives you the confidence that there will be ongoing

management review.

One of the issues with NEPA that makes the litigation such high

stakes is the sense that this is your last shot at it, you know. And

so everybody says, boy, if this NEPA goes down, then the whole

project’s over. But the environmental management system can turn

the NEPA process into a living process, which is where you could

actually agree that, you know what, this is an issue that warrants

further study, and we have an agreed process to get the information we need and adapt our decisions in keeping with the decision

without waiting for 5 years for the next big plan or the next big

EIS.

So the adaptability and the breadth of the EMS for ongoing operations could be a very, very powerful future outcome that again, in

my view, would expand on what NEPA was trying to achieve and

make it more certain for the public and also then minimize the concern of courts about the accountability of government. So I hope we

can spend some time on that one.

20

Miss MCMORRIS. Very good.

We should probably head over to the Floor. We have a couple of

votes. Thank you again for being here. I really appreciate you taking the time.

We have a 15-minute vote and a 5-minute vote, and then we will

be returning. I would ask the next panel, if you can just wait. We

appreciate your patience. And everyone else, please return. We will

see you in a few minutes.

Mr. CONNAUGHTON. Thank you.

[Recess.]

Ms. MCMORRIS. I will call the hearing back to order. Thank you

very much for waiting for us. I need to ask you to stand and raise

your right hand to be sworn in.

[Witnesses sworn.]

Miss MCMORRIS. Let the record reflect that the witnesses answered in the affirmative.

So we have a timer. We have asked each of these folks to present

for 5 minutes and then we’ll open it up for questions. And in the

interests of time, we will just get started. So, Mr. Yost, if you

would begin.

STATEMENT OF NICHOLAS YOST,

SONNENSCHEIN, NATH & ROSENTHAL, LLP

Mr. YOST. Thank you, Madam Chairwoman, for inviting me here,

and thanks to you and to the other members of the Committee.

As you know, I am Nicholas Yost from Sonnenschein Nath &

Rosenthal in San Francisco. I was, during the Carter Administration, the general counsel for CEQ, and was the lead draftsperson

of the CEQ and NEPA regulations which remain in effect today,

with only—after some 25 years, with only one amendment to one

section, they have stood the test of time.

Madam Chairwoman, you said earlier that if we can make the

NEPA process more timely and more efficient, that would be a win.

I agree. And in order to streamline NEPA, to reduce delay while

preserving the benefits of the law, there are steps that can legitimately be taken which I will address today.

Now, I will try and speak on four different issues, briefly: one,

the question whether there is, at times, unwarranted delay in the

NEPA process; two, the causes of that delay; three, and elaborating

on this, measures that can be taken to reduce delay and otherwise

streamline the NEPA process; and four, discussion of measures

that should not be adopted in the name of streamlining NEPA,

measures which would instead undercut the action to the detriment of the Nation’s environmental protection.

I strongly believe that NEPA and its basic message, look before

you leap environmentally, serves the American people immensely

well. This statute has been a environmental success story. It’s been

replicated in about half of our States, and it has served as a model

for environmental impact assessment laws in more than 100 countries and may be the most imitated law in American history. Also

I should point out that I have spent much of the last 20 years

assisting clients through the NEPA process and have had my own

share of frustration with unneeded delay in that process.

The goal should be to cut the fat but not the muscle.

21

Is there a problem with delay under NEPA? My impression is

that, on occasion, there is such delay. And it is most often associated with applicant sponsored projects.

I think also that Chairman Connaughton was very sensible today

in stressing that in the vast number of projects that go through

NEPA review, there is no enormous controversy. NEPA is doing its

job. The project is becoming more sensitive as a result of what is

done.

What is responsible for delays in the NEPA process? Lack of

deadlines. And I will come back to that. But the absence of deadlines, milestones and schedules in many NEPA processes enables

delay. I think this is the single most important deficiency to be addressed.

Second, lack of determination, lack of drive within agencies to do

what is necessary to complete the process in a reasonable amount

of time.

Three, lack of resources. Quite simply, if agency personnel aren’t

there, they can’t do the job properly.

Four, fear of litigation leads to an overcaution which I think can

lead to delay.

And I should emphasize that the fear is more a matter of perception than of reality. In the last year, for which CEQ has public statistics last year, there were 156 NEPA cases filed, and in only 11

of those did a judge grant injunction. By way of larger comparison,

in that same year, 281,338 civil cases were filed in U.S. District

courts.

In brief, NEPA actions and NEPA litigation, taking the average

number of NEPA documents filed annually and the 2004 NEPA injunction figures, is a 99.97 percent rate of NEPA actions successfully completed without injunctions.

Now, I don’t think that that provides a factual basis to prompt

excessive caution on the part of agency personnel.

Next, lack of cooperation by other agencies can contribute to

delay. And there are difficult substantive areas, wetlands, clean

air, some having nothing to do with NEPA and some NEPA related. What can be done to reduce delay?

I make two suggestions in the statement which you have in both

its long form and its short form. But I think this is the single most

important area to address. One, by simply adopting limits which

can insert deadlines on the NEPA process. And I make two suggestions: one for a series of presumptive limits; and the other for Congress to repeat what it recently adopted in its Safe, Accountable,

Flexible, Efficient Transportation Equity Act, or SAFETEA, which

was addressed in the transportation area at the same issue.

Next, implementing NEPA earlier in the process. Concurrent reviews, getting cooperating agencies to cooperate, ensuring adequate

resources. Simply, if somebody doesn’t have the resources, they

can’t do the job. Making sure that they are a well-trained agency

and decisive agency personnel, those with the capacity to make

decisions.

Early assurance of legal compliance. And I suggested in my presentation, in the written presentation, that the Justice Department

be involved as a means of getting an outside look before the

22

document becomes final, which helps bulletproof it and, therefore,

makes judicial review less probable and less probable of success.

Miss MCMORRIS. Mr. Yost, would you summarize, and then—just because we are going to run out of time. And then we’ll get to the

rest of the panelists and we can come back for questions.

Mr. YOST. I will not go through the other recommendations that I have there, but at the same time, it is important while making

those delay-removing recommendations to keep in mind that the

basics of NEPA, not having—not exempting things from NEPA, not

cutting down on the review of alternatives, not cutting the public

out of the process, and not cutting back on judicial review, which

is the only reason why NEPA is—how NEPA is enforced and why

people pay attention to NEPA are important for this Task Force to

consider.

Thank you for the opportunity.

Miss MCMORRIS. Good. Thank you. [The prepared statement of Mr. Yost follows:]

Statement of Nicholas C. Yost, Partner, Sonnenschein Nath & Rosenthal

LLP, San Francisco, and Former General Counsel, Council on Environmental Quality

Introduction.

Rep. Cathy McMorris (R-Wash.), the Chairwoman of the House NEPA Task Force, said, ‘‘If we can make [the NEPA] process more timely and more efficient, I think

that would be a win.’’ I agree. In order to streamline NEPA—to reduce delay while

preserving the benefits of the law—there are steps that can legitimately be taken.

As you will see, I make specific proposals to reduce delay, which include: • time limits on the NEPA process—two potential mechanisms • implementing NEPA early in the approval process • concurrent agency reviews • getting cooperating agencies to cooperate • adequate resources • well-trained and decisive agency personnel • top down direction to expedite • early assurance of legal compliance • availability of agency headquarters personnel to expedite NEPA process • regular meetings among those responsible for the NEPA process • getting the right level of NEPA documentation • maximum coordination with State mini-NEPAs, and • expediting judicial review, including;

> statutes of limitations,

> expediting preparation of the administrative record,

> priority for NEPA suits, and

> the joinder of NEPA and comparable state claims. There are also other measures which it would be a mistake to adopt, which would

gut NEPA rather than streamline it. Specifically: • Congress should not exempt actions from NEPA. • Congress should not eliminate or reduce the obligation to consider alternatives. • Congress should not squeeze the public out of the NEPA process. • Congress should not curtail judicial review. Throughout I respectfully suggest that we keep in mind the original intent of the drafters. The Senate’s lead author, Henry Jackson of Washington, characterized

NEPA as ‘‘the most important and far-reaching environmental and conservation

measure ever enacted.’’ The ranking Republican, Gordon Allott of Colorado, called

it ‘‘truly landmark legislation.’’ The lead House author, Congressman John Dingell

of Michigan, stressed that ‘‘we must consider the natural environment as a whole

and assess its quality continuously if we really wish to make strides in improving

and preserving it.’’ President Nixon chose January 1, 1970, to sign NEPA into law—

as his first official act of the new decade. In Senator Jackson’s words,

The basic principle of the [national environmental] policy is that we must

strive in all that we do, to achieve a standard of excellence in man’s relationship to his physical surroundings. If there are to be departures from

this standard of excellence, they should be exceptions to the rule and the

23

policy. And as exceptions they will have to be justified in light of the public

scrutiny required by section 102.

I would respectfully suggest that we would do well to continue to be guided by

the framers’ words.

In this presentation I will address the issues confronting the Task Force as

follows:

(1) the question whether there is unwarranted delay in the NEPA process;

(2) the causes of that delay;

(3) measures that can be taken to reduce delay and otherwise streamline the

NEPA process, and;

(4) discussion of the measures that should not be adopted in the name of streamlining NEPA, measures which would instead undercut the act to the detriment

of the nation’s environmental protection.

Throughout I should emphasize that as General Counsel of the Council on Environmental Quality I was the lead author of the Federal Government’s CEQ NEPA

Regulations, which remain in effect a quarter century later after five Presidents

with only one amendment to one section. I strongly believe that NEPA and its basic

message—look before you leap environmentally—serves the American people immensely well. This statute has been an environmental success story. It has been

replicated in about half our states, and having served as the model for environmental impact assessment legislation in more than 100 countries, it may be the

most imitated American law in history. However, I should also add that I have

spent much of the last twenty years assisting clients through the NEPA process and

have had my own share of frustrations with unneeded delay in that process. The

goal should be to cut the fat but not the muscle.

1. Is there a problem with delay under NEPA? In many cases there is for

the reasons I set out below. My impression is that such delay is most

often associated with applicant-sponsored projects (when timeliness may

be critical) as distinct from agency-sponsored ones, where timeliness is

often less urgent, such as with respect to long-term actions involving

planning.

• By way of anecdotal example, a principal in a highly regarded consulting firm

told me of a draft EIS he had prepared for an agency within the Interior Department that had been sitting on an agency official’s desk for 3 months awaiting review and that the official had said it would be another 3 months before

she could get to it. I happen to know the agency official, and she is a highly

competent, responsible professional, but her workload is overwhelming. It is,

however, the applicant to the government whose project is the subject of the

EIS who suffers.

• By way of a more pervasive illustration of delay, a couple of years ago the Federal Highway Administration set a goal of reducing its median Environmental

Impact Statement (EIS) preparation time from 4 1/2 years to 3 years, and its

Environmental Assessment (EA) preparation time from 1 1/2 years to 1 year.

While admirably intentioned and while the FHWA has been a leader in addressing issues of delay under NEPA, even the goals appear to me to assume

excessive time. The President’s Council on Environmental Quality (CEQ), the

agency charged with overseeing NEPA’s implementation throughout the government, has issued guidance saying that agencies’ EISs should not take over one

year to prepare and process and EAs not more than three months. These are

far shorter times than the goals the FHWA has set for itself.

2. What is responsible for delays in the NEPA process? I would suggest

several answers:

• Lack of deadlines. The absence of time deadlines, milestones, and schedules in

many NEPA processes enables delay. As I will discuss, I think this the single

most important deficiency to be addressed.

• Lack of determination. The simple lack of drive within agencies to do what is

necessary to complete the process in a reasonable amount of time. I will return

to this subject later, but the lack of command direction to move the process rapidly is critical.

• Lack of resources. Quite simply, if the agency personnel aren’t there, they can’t

do the job in a timely fashion. A 2002 study (Smythe and Isber, NEPA in the

Agencies-2002) stated that the Army Corps of Engineers cut its Headquarters

environmental staff from 12 to 3; the Department of Energy cut its comparable

staff from 26 to 14; and the Environmental Protection Agency reduced its headquarters NEPA staff by 20% over a 10 year period. Fewer staff members to do

the work—any work—will mean that it takes longer to do it. The ones who

24

suffer from the Federal staff shortages are the private businesses or the State

or local governments or Indian Tribes which are trying to move projects through

the Federal process. • Fear of litigation can lead to an overcaution which can lead to delay. I should

emphasis that this fear is more a matter of perception than of reality. In fact

only a small proportion of NEPA actions result in judicial challenges, and experienced agency NEPA counsel can make informed judgments as to which actions

are potentially vulnerable and which are not, thereby eliminating needless

delay associated with excessive time on non-problematic matters. Each year approximately 450 EISs and 45,000 EAs are prepared on Federal actions. (The

EIS numbers cover both Draft and Final EISs, so the number of actions represented is approximately half the total number.) In the last year for which

CEQ has made public statistics on NEPA litigation dispositions (which it assembles in collaboration with the Justice Department)—2004—156 NEPA cases

were filed, and in only 11 of those cases did the judge grant an injunction. In

2002 150 NEPA cases were filed, and injunctions were issued in 27 of them.

In 2003 128 NEPA cases were filed, of which 6 resulted in injunctions. By way

of larger comparison, in that same year, 2004, 281,338 civil cases were filed in

the U.S. District Courts. During the same year 998 cases were filed in District

Courts involving environmental matters. Of these, 548 involved private parties

only (i.e., not the U.S. Government), and of the balance, which involved suits

to which the United States was a party, the government was the plaintiff in

171 cases and defendant in 279.

Environmental cases therefore represent a minuscule portion of the Federal

court caseload, and NEPA cases a modest part of even that small fraction. In

summary, with respect to NEPA actions and NEPA litigation, taking the average number of NEPA documents filed annually and the 2004 NEPA injunction

figures, a 99.97% rate of NEPA actions successfully completed without injunctions does not provide a factual basis to prompt an excessive caution on the

part of agency personnel. Even looking at the relatively modest number of

NEPA cases filed, in 2004 in 93% of them the judge did not issue an injunction.

Federal judges on the whole use good judgment and do not act in unwarranted

manner. • Lack of cooperation by other agencies can contribute to delay. In NEPA’s early

days the agencies charged with safeguarding natural resources and environmental protection (typically the Environmental Protection Agency, the Fish and

Wildlife Service, and what was then the National Marine Fisheries Service (now

NOAA Fisheries)) were sometimes perceived as withholding their contribution

while an EIS was being prepared and then, when the time came for public comments, castigating the lead agency for an inadequate job and requesting that

the document be redone. In an effort to turn this adversarial—and time consuming—interaction into a more constructive approach, CEQ in its 1978 NEPA

Regulations devised the concept of ‘‘cooperating agency,’’ requiring agencies not

to withhold their input until the comment stage, but to get involved early on

when the EIS was being prepared, contributing their expertise to it and even

taking the lead on the portions on which they had a special knowledge. Everybody benefited—the lead agencies and project proponents saw a constructive

collaboration instead of an adversarial comment process. Project proponents

also saw objections to their proposals being surfaced early in the process, so

they could be evaluated and the project adapted to reflect meritorious objections, ultimately saving time. Those concerned with the environment saw their

concerns being interjected into the NEPA process early on, with an EIS reflecting a fuller range of environmental inputs and values, rather than being treated

as an add-on at the end.

However, it is fair to say that this emphasis on cooperation needs constant

oversight and consistent reinforcement. The natural tendency of agencies to

hold off their involvement and husband their resources must be resisted. Top

down direction from the highest levels of the Executive Branch to participate

in working through the NEPA process—not avoiding environmental allegiances

and responsibilities, but embracing them by insistence on the early involvement

of the resource agencies—is vital. To emphasize—the purpose is not to silence

those agencies—quite the opposite, it is to ensure their meaningful contribution

by insisting on their early involvement.

• Difficult substantive areas. Some environmental problems are complex and—

often quite apart from NEPA—take time to figure out how wisely to deal with

them. Examples include:

> Air quality conformity. Under the Clean Air Act Congress has provided that

EPA adopt national air quality standards which stand as healthy air goals

25

for all Americans. States are then charged with devising State Implementation Plans (SIPs) setting out the steps to be taken in that state to attain

those goals. In an appropriate effort to ensure that Federal agencies do not

by their own actions within a given state subvert that state’s planning, Congress has also provided that Federal agencies’ actions must ‘‘conform’’ to the

state’s SIP. Such conformity often leads to hard choices, such as how to offset

an increase in air emissions—which may be time-consuming. > Wetlands. Congress has provided that permits must be obtained to dredge or fill ‘‘waters of the United States.’’ More particularly, wetlands are safeguarded in part by requiring that there can be no fill when there is an upland (i.e., non-wetland) alternative available. This is an ‘‘alternatives’’ requirement independent of NEPA, and it is one which imposes a substantive

requirement—you must avoid the wetland if there is another, upland alternative available. Additionally, both Presidents Bush and President Clinton

have followed a policy of ‘‘no net loss’’ of wetlands—if you fill a wetland, you

must create or foster a wetland elsewhere. This leads to a hunt for suitable

sites, sometimes using a so-called ‘‘mitigation bank,’’ which can also take

time.

> Section 4(f). Similarly in section 4(f) of the Transportation Act, which applies to transportation facilities—most commonly highways and airports—Congress has provided that the agency must pursue alternatives which avoid

parks and historic structures. Again—Congress had created an alternatives

requirement independent of NEPA, and one with real bite.

> Indirect impacts. Sometimes the most consequential environmental impacts

are not the most immediate ones. For instance, when a new highway is built

in an undeveloped area, there will be immediate impacts as part of the construction, typically involving noise and dust. Then there will be the impacts

of operating the highway once it is built—again noise and the air emissions

of the vehicles using the road. And, in an undeveloped area, there will be still

further impacts as the highway opens a new area to development. These socalled ‘‘growth-inducing’’ impacts may be a good thing—that may be precisely

why the highway was built—or they may not be—the inadvertent consequences of a highway built for other purposes. But NEPA at minimum requires that these impacts be examined such that the public can be aware of

and responsible authorities can plan for what is to come. The analytical work

of Federal agencies is made available to the affected local government. > Cumulative impacts encompass another set of effects that NEPA examines.

For instance, if the Department of Veterans Affairs were building a hospital

for the nation’s veterans on a road that could just accommodate the traffic

of the patients coming to the hospital, and simultaneously the local government was approving a Home Depot across the street, which would also generate considerable traffic, NEPA’s cumulative effects analysis will alert everybody concerned that there is a problem. NEPA does not solve the problem,

but it provides the occasion and the traffic data which will lead the Federal

agency and the local government and perhaps the state highway agency to

sit down together and figure out what is necessary to deal with the problem

of the cumulative impacts of the combined effects of the new hospital and the

new megastore. Future traffic jams are averted.

Cumulative impacts consist of past, present, and reasonably foreseeable future impacts of the same type. (40 CFR 1508.7). For instance, the FHWA in

preparing an EIS on a highway into a newly developing valley (with its attendant air and noise impacts) in analyzing the capacity of the highway will

need to analyze the past impacts (e.g., the number of people and destinations

already in the valley), the present proposals (e.g., any new projects which are

the immediate occasion for building the highway), and the ‘‘reasonably foreseeable’’ future projects (e.g., other developments which are known to be

planned for the valley). Only through an accurate analysis of cumulative impacts will the agency be able to get a complete picture of what is in store

for the valley in terms of traffic, air, and noise and so that the highway can

be appropriately sized.

> Often an agency simply does not follow the law, creating problems for itself.

I know you have heard testimony—often conflicting—about a NEPA case in

the 1970s against the Corps of Engineers in New Orleans involving flood

control issues. I have no personal familiarity with that case, but in the 1980s

I was privileged to represent the State of Louisiana in NEPA litigation

against the Corps of Engineers over the dredging of oyster shell reefs—which

act as a natural barrier to coastal erosion—off the Louisiana coast. The

Corps, having found that the impacts of the dredging were ‘‘significant,’’ still

26

refused to prepare an Environmental Impact Statement analyzing the impact. In order to safeguard its coast, the State of Louisiana had to go to court

to prevent the Corps from flaunting the Congressional command. The State

was successful in the U.S. Court of Appeals for the 5th Circuit in New Orleans in enforcing NEPA. State of Louisiana v. Lee, 758 F.2d 1081 (5th Cir.

1985). In brief, agency recalcitrance in following the law can be and is itself

often a cause of delay. > I set out these examples—some of which arise under NEPA and some under

other Congressional enactments—as only that—examples chosen from among

many to illustrate that there may be complex environmental issues to resolve

and what takes time is not necessarily NEPA but the reality of people working together to solve complex problems. ( See the excellent testimony presented before the Task Force by Thomas C. Jensen, Chairman, National Environmental Conflict Resolution Advisory Committee, on the importance of

collaborative decision-making.)

3. What can be done to reduce delay?

• Time limits. Agencies must be encouraged—perhaps directed—to set time limits

on the NEPA process (and on individual aspects of the process). If delay is the

issue—and it often is—then time limits are the one answer that directly

addresses and reduces the problem.

> With precisely that in mind, when CEQ adopted its NEPA Regulations it provided that an agency must, when requested by an applicant, adopt time limits. 40 CFR § 1501.8. (‘‘The agency shall set time limits if an applicant for

the proposed action requests them....’’) (The full text of § 1508.8 is set out as

Attachment A to the presentation.) At the same time CEQ did not impose

a single universal time limit because the various actions to be evaluated differ so much in their magnitudes. For instance, it simply takes more effort

and time to evaluate a trans-Alaska pipeline than it does to examine a single

Interstate highway interchange.

> That said, the provision has been grossly underutilized, largely, I believe, because applicants are reluctant to antagonize agencies by exercising their

right to demand that time limits be set.

> As one trade association from the aviation industry put it in urging reform

in agency implementation of NEPA, the agency procedures could ‘‘instill

greater urgency in the process if it integrated words such as ‘‘schedule,’’ and

‘‘milestones’’ and ‘‘deadlines’’ into the process....’’ (Comments submitted by

Airports Council International -- North America to FAA (2004).)

> By way of constructive example, the FHWA, as part of its ‘‘Vital Few Environmental Goal,’’ has adopted a policy of ‘‘negotiated timeframes’’ to expedite

the NEPA process. The new Safe, Accountable, Flexible, Efficient Transportation Equity Act will accelerate that process.

> I believe that new innovations are needed to emphasize time limits. Let me

make two suggestions for dealing with the very real problem of delay (which

are not mutually exclusive):

(a) The most direct solution would be to require the adoption of presumptive time

limits, through CEQ or legislatively, such that EISs are required to be completed in a discrete period of time absent special circumstances warranting

lesser or greater time periods. For instance, either CEQ could impose by Regulation or Congress could impose by law a set of 3 or 4 presumptive time limits

for the NEPA process (for EISs; same could be done for EAs). (Or, either CEQ

or Congress could require each agency to prescribe such categories). Category

A might involve 10 months for an EIS process (running from the Notice of Intent (NOI) through the Record of Decision (ROD)); Category B 15 months, and

so on. At the outset of the process, perhaps as part of scoping, the lead agency

would (in consultation with the applicant (if any) and with agencies with jurisdiction by law or special expertise, and in the case of actions with the potential for controversy, the public), assign the action to one of the time limit categories. Some sort of flexibility for unforeseen circumstances or unusual situations would be needed, but as a general rule those affected by the NEPA process will have a predictable schedule for the completion of the process. The fact

of having a time limit will drive the process. This is the single most important

measure needed to reduce delay.

(b) Alternatively or additionally Congress could repeat the approach it has recently adopted in the newly enacted ‘‘Safe, Accountable, Flexible, Efficient

Transportation Equity Act: A Legacy for Users’’ (SAFETEA). This year Congress enacted and the President signed legislation which contains detailed and

well-considered provisions for expediting the NEPA process for transportation

27

projects. 23 U.S.C. § 6002. There is no reason why those provision—already

considered and adopted by Congress—could not be adapted to non-transportation projects. (It should be noted that there are some provisions in the

SAFETEA which do not lend themselves to replication for all other activities

subject to NEPA. For instance, the Act allows the lead agency to develop the

preferred alternative to a higher level of detail than other projects (23 U.S.C.

§ 6002(8)(4)(D)), which is generally not a good idea because it tilts the decisionmaking prematurely in favor of the particular, preferred alternative.) In

general those provisions, under the statutory title, ‘‘Efficient Environmental

Reviews for Project Decisionmaking’’ (Id.) direct the Secretary (of Transportation, but that can be adapted to other agencies) to take charge of an interagency NEPA process and establish a schedule for the completion of the environmental review process for the project under consideration. 23 U.S.C.

§ 6002(g)(1)(B). To ensure that other laws and the agencies charged with their

implementation do not take time beyond the NEPA schedule, the law provides

that the Secretary is to deliver a progress report to the relevant Congressional

Committee (in the SAFETEA the Senate Committee on Environment and Public Works and the House Committee on Transportation and Infrastructure) on

the occasion of the later of 180 days after the application was submitted or

the date on which the Secretary made all final decisions on the project. Additional reports are due every 60 days. • Implementing NEPA earlier in the approval process. Insofar as NEPA’s consideration of environmental matters is integrated early in an approval process—

as distinct from being an add-on at the end—NEPA takes less time, and the

values it represents are better integrated into the action being taken.

> CEQ has long emphasized this goal (40 CFR § § 1500.5(a), 1501.2), but the mandate needs constant reinforcement. • Concurrent reviews. Often many Federal agencies have a say in a project’s approval process. It is essential that these agencies undertake their environmental

responsibilities concurrently rather than sequentially. That cuts down on delay.

> CEQ has also tried to make this happen (40 CFR § § 1502.25, 1500.5), but

consistent insistence is needed. • Getting cooperating agencies to cooperate. Insofar as agencies other than the

lead agency have either special expertise or jurisdiction by law, they too have

a role to play in the NEPA process (NEPA, § 102(2)(C); 40 CFR § § 1501.6 and

1508.5). Any tardiness in their taking action has the potential to delay the

whole process.

> CEQ has recently and quite laudably spent considerable effort in making the cooperating agency concept work well. > In many cases, resource shortages (discussed below) play a role in cooper- ating agency contributions to delay (which can be alleviated if the lead

agency augments the resources available to the cooperating agency).

SAFETEA specifically provides for transportation funds to be made available to State agencies and Indian Tribes which are participating in the environmental review process for activities which contribute to expediting and

improving transportation planning and project delivery.

> That said, facilitating and expediting the cooperating agency role has promise for accelerating the whole process.

• Adequate resources. As I noted above, no job can be performed if there are not

adequate personnel assigned to do it.

> The expedition with which an agency undertakes its NEPA responsibilities

is often directly proportional to the availability of experienced staff to undertake and complete the job promptly.

> By way of illustration of action to reduce delay, the Federal Aviation Administration (FAA), an agency with an exceptionally high success rate in defending its NEPA documents in court, acting in response to the Department

of Transportation FY 2003 Appropriations Act and to the requests of affected airports brought on 44 more personnel—31 environmental specialists

and 13 lawyers—with the avowed purpose of cutting delay. That was a constructive step.

> I am fully aware that resources are in short supply these days—that the

many demands on the Nation’s exchequer, both foreign and domestic, from

Iraq to Katrina, diminish the prospect of additional resources. But that

recognition does not make the problem go away. If there is nobody there to

do the job, the job doesn’t get done, whether the job is NEPA implementation or any other function. In some measure, particularly with projects for

which there is a project sponsor, this lack of resources can be addressed by

having the project sponsor pay the cost of environmental review. For the

28

sponsor that additional cost may well be dwarfed by the cost of delay. It is

to everybody’s advantage to allow sponsors to advance the cost of evaluating

these applications, understanding, of course, that expedited analysis does

not guarantee approval but rather only rapid evaluation. Congressional authorization would make clear that agencies can accept funds for this purpose.

> By way of example, some agencies choose to rely in part on outside private contractors to prepare NEPA documents under the supervision of core

agency staff. (40 CFR § 1506.5). Under so-called ‘‘third party contracts’’ the

agency may select and supervise the consultant, but the applicant—whose

interests are furthered by prompt action—foots the bill. This works to mobilize the resources necessary to do the job promptly, especially when the

agency lacks sufficient experienced personnel. It internalizes within the

project cost the external cost of environmental evaluation. • Well-trained and decisive agency personnel. The FAA, an agency with a particularly high record of success in court with its NEPA documents, says quite

simply: ‘‘A highly skilled FAA EIS project manager is the greatest asset for a

successful EIS.’’ FAA, Best Practices Guide (in my experience the single best

guidance put out by any Federal agency on expediting the NEPA process.) I

would suggest several attributes that are needed for agency personnel to deal

effectively with and appropriately expedite the NEPA process:

> They must be trained such that they produce or review NEPA documents that fully implement the law’s intent, that protect the public, and that will

withstand legal challenge. > They must—and this is difficult to legislate or to mandate, but is exceed- ingly important—have the capacity to make decisions, to say ‘‘yes’’ as well

as ‘‘no’’ (or ‘‘I need more information’’). There must be agency incentives

built in for agency officials to move quickly and decisively. > There must, as I said earlier, not only be qualified, decisive personnel, but there must be enough of them. (Generally see CEQ, The NEPA Task Force

Report to the Council on Environmental Quality, Modernizing NEPA Implementation (Sept. 2003) for detailed recommendations prepared by experienced practitioners within the Federal government concerning how better to

make the internal process work more smoothly.) • Top-down direction to expedite. There must be command direction from above—

within both the lead and cooperating agencies—to move the NEPA process expeditiously. Wholehearted implementation of NEPA’s mandates is essential, but

timelines are also a vital ingredient of a successful process. (The newly-enacted

SAFETEA, President Bush’s Executive Order 13274 (Sept. 18, 2002), and guidance promulgated by DOT, the FAA, and the FHWA provides worthwhile examples of such top-down direction to expedite.)

• Early assurance of legal compliance. Delay can come from either an overreaction due to fear of litigation, which stymies decisive action, or from sloppy

environmental analysis which results in having to go back and do the job over.

Doing it right—and legally—saves time. A stitch in time does save nine. As the

NEPA process progresses, an agency should be having its legal staff, which

must be experienced with NEPA litigation and associated other environmental

requirements, consistently giving prompt advice on what is needed for an adequate NEPA document—neither too much nor too little. Again to quote an aviation industry reform proposal, what is needed by the agency are ‘‘procedures for

very fast decisions by experienced litigators on legal risk associated with timeconsuming elements of NEPA analysis,....’’ (Airports Council International comments.) Quite simply, it is possible accurately to forecast the litigation

vulnerabilities of a NEPA document and remedy the deficiencies to reduce those

vulnerabilities (and at the same time to see that useless time and effort is not

devoted to detailed study of issues not critical to the decision). I have participated in the preparation of many NEPA documents representing applicants (including among others energy companies, highway builders, land developers, airports, and Indian Tribes), and no document on which I have worked has ever

been overturned by a court. It can be done. There is no trick. The message is

to follow the law and the regulations faithfully. That will serve the law in the

manner that Congress intended. Experienced NEPA litigators sometimes get

the feeling that much of the carping about NEPA comes from those who have

done inadequate jobs in preparing NEPA documents and would like to blame

somebody else—or the statute itself—when their work is found unacceptable.

> To the extent that agencies do not have qualified NEPA lawyers with litigation expertise available in house, the agencies could be required to consult

with the U.S. Justice Department prior to finalization of NEPA documents

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in potentially controversial cases. It is, after all, the lawyers of Justice’s Environment and Natural Resources Division who will ultimately be defending

these NEPA documents in court. If they are afforded the opportunity to review the documents before their finalization (rather than after a potentially

inadequate document has been finalized and becomes the subject of a lawsuit), much aggravation and delay can be headed off. Of course, time limits

would be needed for DOJ review (as for every other part of the NEPA process).

By way of analogy, in the Carter Administration all Justice Department

NEPA pleadings were reviewed by CEQ’s legal staff to ensure consistency

throughout the government and to ensure the views of the client agency responsible for interpreting NEPA were brought to bear as Justice crafted its

pleadings (rather than simply reflecting the views of the agency being sued).

CEQ was given a 48 hour turnaround to transmit its views to Justice. This

salutary practice has not been followed, unwisely, I believe, by subsequent

administrations.

• Headquarters personnel available to step in to expedite. Different agencies have

different organizational means of doing their business, which is totally appropriate. But to the extent that an agency relies on a regional or district office

to do its NEPA work, having somebody—informed, empowered, and decisive—

at the headquarters level to whom recourse can be had to break logjams and

get a project moving is extraordinarily helpful.

• Regular meetings. With complex projects no mechanism works more effectively

to move the project along and to involve all the agencies which will ultimately

be involved in the permitting than regular meetings—usually led by the lead

agency—to set and achieve milestones and to evaluate progress.

> I have personally been involved in such sets of meetings in projects ranging

from a successfully completed expansion of the Philadelphia International

Airport to a land development on the Potomac River in Maryland. This system can and does work.

> The dynamics of every agency having to show progress every month—to

show what it has done, to state what further information it needs—function

to make projects move at a rapid clip.

> That said, such meetings are resource-consumptive and are best used for

complex projects with the potential for controversy. Needless to say, assigning a high priority to such projects—which may be most appropriate given

their importance—does result in less priority for the other projects.

• Get the right level of NEPA documentation. As you know, there are three possible levels of NEPA documentation—(1) a Categorical Exclusion (which, for a

qualifying project—one of a type found by the agency (with the approval of

CEQ) not to have significant environmental impacts either individually or cumulatively—simply says no more NEPA documentation is needed); (2) an Environmental Assessment (EA) (which is supposed to be a brief study to see if a

more extensive EIS is needed and which also functions, in the vast majority of

cases, as the mini-analysis which is the only NEPA document and which builds

environmental factors into decision making; and (3) an Environmental Impact

Statement (EIS) (which is the most thorough analysis required under NEPA—

reserved by Congress for those proposals which may significantly impact the

human environment). Getting the appropriate level of NEPA documentation

right is important—both to avoid a more complex, lengthier process than the

action warrants, and, conversely, to be sure there is adequate analysis such

that it will not be necessary to come back and start over.

> Current agency practices are widely disparate. For instance, in one year the

Federal Highway Administration categorically excluded 90% of its projects,

prepared Environmental Assessments /Findings of No Significant Impact

(EA/FONSI) on 7%, and EISs on 3%, while the Corps of Engineers prepares

75 to 100 EISs each year and 4,400 EAs, and the Department of Energy

prepared 11 Final EISs and 49 EAs over a 2 year period.

> Opportunities exist for improvement. For instance, the Food and Drug Administration used to require an Environmental Assessment for each new

drug before it came on the market. This involved several hundred thousands of expenditure and several months delay in making the drug available to the public. The primary purpose of an EA, of course, is to determine

whether an EIS is needed. Over many years in only one case did the FDA

decide such an EIS was warranted (and adopted one prepared by another

agency). That record established a firm basis on which the FDA was able

to broaden its categorical exclusions to most new drugs. In brief, actual

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experience over a period of years showed a lack of significant environmental

impact and therefore supported broader categorical exclusions.

• Insure maximum coordination with State NEPA analogues. About half of the

states have some sort of statute or order based on NEPA, and a smaller number

of these states have analogous laws whose reach is more pervasive than NEPA,

including Chairwoman McMorris’ home State of Washington and Chairman

Pombo’s and my home State of California. Many actions will be subject to both

laws. Duplication can be avoided if the Federal and State (or local) agencies collaborate to prepare one document to comply with both laws. The CEQ NEPA

Regulations require exactly that on behalf of Federal agencies. 40 CFR § 1506.2.

And, indeed, I drafted a comparable state provision for the Council of State

Governments which became part of the Council’s suggested model legislation

and which was adopted by a number of states. Still—agencies often avoid such

cooperation. A firmer push to make them collaborate would be helpful.

> I should note that some of the State enactments are considerably more demanding than NEPA. For instance, the California Environmental Quality

Act (CEQA) requires not only identifying potential mitigation, but substantively adopting it to remove all significant impacts as a condition of

project approval. California’s ‘‘little NEPA’’ includes the provision that:

The Legislature finds and declares that it is the policy of the state that

public agencies should not approve projects as proposed if there are feasible

alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects, ....

Cal. Public Resources Code § 21002. Also see the provisions from Massachusetts (Mass. Gen. Laws ch. 30, § 61, requiring ‘‘a finding that all feasible measures have been taken to avoid or minimize said impact.’’) and New York (N.Y.

Envtl. Conserv. Law § 8-0109(8), requiring a finding that ‘‘adverse environmental effects identified in the environmental impact statement will be minimized or avoided’’). These State requirements go well beyond NEPA in their requirements for the protection of the environment, but with flexibility Federal

managers and their State and local counterparts can work successfully to meld

the processes under both Federal and State laws. From the point of view of an

applicant who must comply with both acts anyway, one process and one document is more efficient than two.

• Expediting judicial review. As I discuss later, judicial review is essential to

NEPA’s effectiveness and should not be curtailed. That said, there are good reasons for expediting that judicial review. Potential measures include:

> Statute of Limitations. NEPA has no statute of limitations—no period within which judicial challenges must be filed. Many courts look to the general

statute of limitations for civil suits against the United States, which is six

years. The vast majority of NEPA actions are completed well before that

time. Some agencies, however, have in their own authorizing legislation

statutes of limitations for any challenge against the agency’s action which

then function as NEPA statutes of limitation. For instance, all actions challenging an Order by the FAA must be brought within 60 days. An action

to challenge the decision of the Secretary of the Interior to take land into

trust for an Indian Tribe must be brought within 30 days, which similarly

equates to a NEPA statute of limitations. The newly enacted Safe, Accountable, Flexible, Efficient Transportation Equity Act provides a 180 day statute of limitations for transportation projects. My own State, California, has

a 30-day statute of limitations for its NEPA analogue, the California Environmental Quality Act (CEQA). My own impression is that this relatively

short statute does not imperil the opportunity for judicial review in that litigation under CEQA is both more frequent and more successful than that

litigation under NEPA. I should note, however, that those experienced in

working with citizens’ groups in litigation make the valid point that it often

can take such groups more than 30 days to get their acts together to bring

a lawsuit. Finally—a note of practicality. Judicial review under NEPA is

‘‘administrative record review,’’ which is to say the judge usually does not

take testimony or receive evidence but rather reviews the administrative

record that was before the agency to see that it took a ‘‘hard look’’ at the

environmental consequences of its proposal. That means there can be no judicial review until the administrative record (discussed below)—often many

thousands of pages—is compiled by the agency. That usually is not

completed within 30 days, so a statute that short is probably not practically

effective in reducing delay. A statute in the 90 to 180 day range would be

more realistic.

31

> Administrative Record. I should add that expediting that compilation of the administrative record—which is within the authority of the preparing agency, working with the Justice Department—is an essential part of expediting

judicial review. Specifically enabling the agencies to call upon applicants for

assistance in expediting compilation of the administrative record would be

a useful step (perhaps coupled with a provision ensuring that applicants can

participate in the litigation affecting the future of their projects). > Priority to NEPA suits. Both District Courts and Courts of Appeal have dockets to manage and must assign priorities. Congressional direction to

give priority to NEPA cases will expedite the disposition of those cases.

California has such a legislative requirement for priority to CEQA cases. (It

is worth noting, however, that the judiciary can be expected to oppose such

a measure, preferring to control its own dockets.) > Joinder of NEPA and comparable State claims. In those states which have

their own environmental impact assessment laws, the possibility exists for

two judicial reviews—in Federal court and in State court—of what may be

one document prepared to comply with both laws. There is no reason for a

plaintiff to have two judicial bites at the apple. One makes sense. Two does

not. While a State court lacks jurisdiction to apply a Federal law, such as

NEPA, against a Federal agency, a Federal court can, using the concept of

pendant jurisdiction, hear both the NEPA claim and the related State claim.

While I am convinced this can happen under existing law, a Congressional

clarification—even encouragement—would be useful.

4. Measures that should not be adopted to reduce delay.

I have discussed at length measures that can and perhaps should be adopted to

reduce delay in the NEPA process. There are also other measures—some embodied

in legislative proposals—which should not be adopted to deal with issues of delay.

These proposals cut not fat but muscle. They imperil NEPA and all the good that

it does.

• Congress should not exempt actions from NEPA. A proposed action either does

or does not significantly impact the environment. If it does not, under existing

law no lengthy studies are needed. If the action does significantly impact the

environment, that is what NEPA is there for. There is no reason to exempt actions from the scrutiny Congress has so wisely otherwise ordered.

• Congress should not eliminate or reduce the requirement to examine alternatives. The alternatives analysis is what NEPA is about—looking for better

ways of doing things, usually both enabling a project proponent to pursue its

goal, but at the same time forcing a search for reasonable alternative means

of accomplishing it. ‘‘Reasonable alternatives’’ is existing law—no more and no

less. To look at no alternatives or to look at fewer than ‘‘reasonable alternatives’’ or to focus on one alternative and skimp on others is to negate what

NEPA is all about—the search for better, less environmentally intrusive ways

of doing things. For instance, you can build a highway, but look for the alternate route that avoids an endangered species habitat. You can meet an energy

need, but find the least polluting alternative means of doing so. Alternatives are

the heart of NEPA and should not be curtailed.

• Congress should not squeeze the public out of the NEPA process. The public

plays a major role in the NEPA process—commenting and suggesting and otherwise exercising its opportunity to make the Federal government more responsive to citizen concerns. NEPA, after all, provides the most conspicuous example

of when the Federal government must explain the consequences of its actions

to its citizens before undertaking those actions. And—those citizens, often closer

to the on-the-ground impacts that are to be evaluated than a geographically remote official or consultant, can have real-world observations to make which can

beneficially influence the decision. Measures which are designed to exclude the

public or to create time schedules which do not allow for meaningful public involvement further estrange the American public from those in Washington who

are its servants. The public’s role should not be curtailed.

• Congress should not curtail judicial review. Currently the courts—as commanded by the U.S. Supreme Court—review Federal agency actions under

NEPA under the highly deferential ‘‘arbitrary or capricious standard,’’ which

gives the agency the benefit of the doubt. This opportunity for judicial review

should not be curtailed. Congress, after all, provided no alternate enforcement

mechanism for NEPA. Only judicial review under the Administrative Procedure

Act (the same statute under which most Federal agency action is reviewable)

insures the enforcement of NEPA. If judicial review were not there—and in the

absence of creating some gargantuan independent Federal bureaucracy to

32

oversee the adequacy of other agencies’ NEPA documents—NEPA would be unenforced and would wither away. To remove or curtail judicial review would be

to remove or curtail NEPA itself.

Conclusion and Summary

In conclusion, I suspect some of NEPA’s critics treat the statute as the proverbial

bearer of bad news with the ‘‘shoot the messenger’’ syndrome. Some are unhappy

when a NEPA document shows significant adverse environmental impacts and their

reaction is ‘‘shoot the messenger—kill NEPA.’’ But making public the bad news—

the adverse environmental impacts—is NEPA’s job. That is what it is supposed to

do. The solution is not to shoot the messenger or to kill NEPA. The appropriate solution is to address the environmental problem.

In summary, NEPA is a statute which works well and which serves the American

people immensely well. Sometimes, and often in cases involving applicants to the

Federal government, its processes take too long. There are measures that could and

should be taken to correct that. There are also measures which should not be

adopted—measures which would gut NEPA. It is time to adopt the former but not

the latter.

Thank you for the opportunity to appear before the Task Force. I hope and trust

my suggestions for improving but not undermining the NEPA process have been

helpful, and I stand ready to be of assistance to the Task Force in any other way

that might be useful.

ATTACHMENT A

(EXCERPTED FROM THE EXISTING CEQ NEPA REGULATIONS)

40 CFR § 1501.8 Time limits.

Although the Council has decided that prescribed universal time limits for the entire NEPA process are too inflexible, Federal agencies are encouraged to set time

limits appropriate to individual actions (consistent with the time intervals required

by § 1506.10). When multiple agencies are involved the reference to agency below

means lead agency.

(a) The agency shall set time limits if an applicant for the proposed action requests them: Provided, That the limits are consistent with the purposes of NEPA

and other essential considerations of national policy.

(b) The agency may:

(1) Consider the following factors in determining time limits:

(i) Potential for environmental harm.

(ii) Size of the proposed action.

(iii) State of the art of analytic techniques.

(iv) Degree of public need for the proposed action, including the

consequences of delay.

(v) Number of persons and agencies affected.

(vi) Degree to which relevant information is known and if not known the

time required for obtaining it.

(vii) Degree to which the action is controversial.

(viii) Other time limits imposed on the agency by law, regulations, or

executive order.

(2) Set overall time limits or limits for each constituent part of the

NEPA process, which may include:

(i) Decision on whether to prepare an environmental impact statement

(if not already decided).

(ii) Determination of the scope of the environmental impact statement.

(iii) Preparation of the draft environmental impact statement.

(iv) Review of any comments on the draft environmental impact

statement from the public and agencies.

(v) Preparation of the final environmental impact statement.

(vi) Review of any comments on the final environmental impact

statement.

(vii) Decision on the action based in part on the environmental impact

statement.

(3) Designate a person (such as the project manager or a person in the

agency’s office with NEPA responsibilities) to expedite the NEPA

process.

(c) State or local agencies or members of the public may request a Federal Agency

to set time limits.

33

1This will have implications for staffing within the Environment and Natural Resources

Division of the Justice Department.

[Response to questions submitted for the record by Mr. Yost

follows:]

NICHOLAS C. YOST

SONNENSCHEIN NATH & ROSENTHAL LLP

415.882.2440

NYOST@SONNENSCHEIN.COM

DECEMBER 2, 2005

VIA FEDERAL EXPRESS and e-mail

Honorable Cathy McMorris

Chairwoman, Task Force on Updating NEPA

Committee on Resources

House of Representatives

Washington, DC 20515

Re: Response to Your Letter of November 22, 2005Dear Chairwoman McMorris:

I write in response to your letter of November 22 in which you pose two questions

to which you invited my responses.

The questions and responses follow:

Q.1. Can you give us a sense of what would be ‘‘adequate resources’’? How

much funding, how many people, what kind of skills should these

people have?

I will respond in two ways—by reference to agencies generally and with respect

to the Council on Environmental Quality specifically.

a. Agencies generally.

The personnel should be trained in the range of environmental disciplines, in

Congress’ own words in NEPA itself, ‘‘a systematic interdisciplinary approach which

will insure the integrated use of the natural and social sciences, and the environmental design arts....’’ § 102(2)(A), 42 USC § 4332(2)(A). That says it well.

• In brief, the scientific, technical, and sometimes aesthetic bases for decisions

must be there.

• Capable managers are needed. As I noted in my testimony, a well-trained and

decisive project leader is critical to making the NEPA process move, both

comprehensively and promptly. A I urged in my testimony, the capacity for

decision—to be unafraid to make decisions and to impose deadlines—is critical.

Good managers should be rewarded.

• There must be somebody involved who can write (or edit) clearly such that lay

decisionmakers and members of the public can understand what is being said.

In the words of the CEQ NEPA Regulations, ‘‘Agencies should employ writers

of clear prose or editors to write, review, or edit statements, which will be based

upon the analysis and supporting data from the natural and social sciences of

the environmental design arts.’’ 40 CFR § 1502.8.

• As I also noted in my testimony, insofar as potential litigation is a concern (and

it often is, especially on controversial actions), good legal advice on what is necessary to ‘‘bulletproof’’ (or come as close as one can) a NEPA document is the

best guarantee of either deterring litigation (because potential plaintiffs will realize they have little prospect of success) or prevailing should a lawsuit be filed.

Such legal reviewers (who ideally should have litigation experience), can be (a)

staff lawyers at the agency, (b) outside counsel retained by the agency (or in

the case of applicants, outside counsel retained by the applicant to cooperate

with the agency in helping bulletproof a document), or (c) as I suggested in my

testimony, involving the Justice Department lawyers who would be defending

the decision in court in an earlier, predecisional capacity to review and assist

in bulletproofing the NEPA documents. 1

• With respect to numbers of personnel and funding, the answers are really highly specific to the agency. You will recall from my testimony that the Federal

Aviation Administration, with the support of the regulated aviation industry,

brought on 44 more personnel—31 environmental specialists and 13 lawyers—

with the avowed purpose of cutting delay. (The FAA has what is perhaps the

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2Please bear in mind that an agency can (1) prepare all NEPA documents in-house with its own staff (which assures reliability and build the environment into agency decisionmaking, but

involves personnel costs), (2) use a third-part contract whereby the agency selects and supervises a consultant, but the applicant pays, or (3) in the case of the Environmental Assessment

(but for conflict of interest reasons not an Environmental Impact Statement) allow an applicant

to prepare the document subject to scrutiny and revision by agency personnel. See 40 CFR

§ 1506.5. 3 By way of analogy, in NEPA as it was originally enacted, Congress directed each agency to review its authority and policies to determine whether any hindered full compliance with NEPA

and to report to the President within 1 1/2 years. That section, NEPA § 103, 42 USC § 4333,

reads as follows:

All agencies of the Federal government shall review their present statutory authority, ad- ministrative regulations, and current policies and procedures for the purpose of determining

whether there are any deficiencies or inconsistencies therein which prohibit full compliance with

the purposes and provisions of this Act and shall propose to the President no later than July 1,

1971, such measures as may be necessary to bring their authority and policies into conformity

with the intent, purposes, and procedures set forth in this Act.

Given the more discrete subject of this inquiry, a considerably shorter reporting-back date would be warranted for personnel and funding estimates. 4This was part of an historic compromise between Senators Jackson and Muskie whereby the latter was acting to link the scientific resources of EPA to the implementation of NEPA governmentwide. This function is largely implemented by EPA’s 10 regional offices. 5 CAA § 309, 42 USC § 4609, reads as follows:

(a) The Administrator [of EPA] shall review and comment in writing on the environmental impact of any matter relating to duties and responsibilities granted pursuant to this

chapter or other provisions of the authority of the Administrator, contained in any (1) legislation proposed by any Federal department or agency, (2) newly authorized Federal projects

for construction and any major Federal agency action (other than a project for construction)

to which section 4332(2)(C) of this title applies, and (3) proposed regulations published by

any department or agency of the Federal Government. Such written comment shall be made

public at the conclusion of any such review.

(b) In the event the Administrator determines that any such legislation, action, or regulation is unsatisfactory from the standpoint of public health or welfare or environmental quality, he shall publish his determination and the matter shall be referred to the Council on

Environmental Quality.

highest success rate within the Federal government of successfully defending its

very thorough and professional NEPA documents). • In addition to the staffing and budgeting needs of the lead agency which is in

charge of preparing a NEPA document, there are requirements on other Federal

agencies (typically the so-called ‘‘resource agencies’’ in the Interior and

Commerce (NOAA) Departments and at EPA) to act as cooperating agencies (40

CFR § § 1501.6 and 1508.5) or commenting agencies (40 CFR Part 1503) whereby they lend their expertise to assist the lead agency. Similarly State agencies

and Indian Tribes may play such a role. By way of constructive approach, in

my testimony I invited the Task Force’s attention to the newly enacted Safe,

Accountable, Flexible, Efficient Transportation Equity Act (SAFETEA), which

specifically provides for transportation funds to be made available to State

agencies and Indian Tribes which are participating in the environmental review

process for activities which contribute to expediting and improving transportation planning and project delivery. • Let me suggest three means of getting a handle on numbers and budgets specific to each agency: 2

1. The Task Force (or the Resources Committee) writes the head of each agency and requests information on the number of personnel deemed necessary to

fulfill its NEPA obligations in an efficient but thorough manner. 2. The Task Force directs CEQ to make such an inquiry.

3. The Congress statutorily directs the agencies to report back by a date certain. 3

• Environmental Protection Agency staffing presents a unique problem. In addition to its own direct NEPA responsibilities (e.g., EPA EISs for sewage treatment plants funded by EPA), Congress has imposed upon EPA the duty of reviewing and commenting on other agencies’ EISs. 4 Clean Air Act § 309, 42 USC

§ 4609. 5 I understand that today—despite the Congressional command—EPA lacks the resources to perform the required reviews in all cases. • CEQ. CEQ, created by NEPA, oversees the implementation of the Act. Without

appropriate resources, it cannot do a rigorous job of ensuring compliance with

the CEQ NEPA Regulations. It is my recollection that during the Nixon, Ford,

and Carter Administrations CEQ had a staff (including detailees from other

agencies) in the 60 to 70 person range. I believe that it is now about 20. When

I was General Counsel, about 5 people spent most of their time on NEPA oversight and another 6 to 8 (who were responsible for liaison with individual agenVerDate 11-MAY-2000 16:01 Feb 15, 2006 Jkt 000000 PO 00000 Frm 00038 Fmt 6633 Sfmt 6621 J:\DOCS\24682.TXT HRESOUR1 PsN: HRESOUR1
35

6 § 1502.2, Elimination of duplication with State and local procedures, reads as follows:

(a) Agencies authorized by law to cooperate with State agencies of statewide jurisdiction

pursuant to sections 102(2)(D) of the Act may do so.

(b) Agencies shall cooperate with State and local agencies to the fullest extent possible

to reduce duplication between NEPA and State and local requirements, unless the agencies

are specifically barred from doing so by some other law. Except for cases covered by paragraph (a) of this section, such cooperation shall to the fullest extent possible include:

(1) Joint planning processes.

(2) Joint environmental research and studies.

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

(4) Joint environmental assessments.

Continued

cies on behalf of the White House) spent a good portion of their time on NEPA

issues (with respect to the agencies for which they were responsible). I understand that today CEQ has one person dedicated to NEPA oversight and that

two others each spend about half their time on NEPA. Despite a high level of

professional capability, that is insufficient capacity effectively to oversee the

implementation of the law nationwide.

Q.2. Your comments about Federal and State cooperation provide another

example of CEQ regulations not being followed. You suggest that Federal and State agencies ‘‘avoid such cooperation’’ that could reduce

duplication. /Two-part question: Why is cooperation avoided and can

cooperation be encouraged by changes to NEPA?

I think the Federal-State cooperation is avoided for a number of reasons, most of

them having to do with a reluctance to do things differently from the way people

are used to doing them.

• For instance, some of the state acts (as I noted in my testimony) impose more

far-reaching obligations that does NEPA, such as the duty to mitigate adverse

environmental impacts found in the California, Massachusetts, and New York

laws. Similarly, Montana’s NEPA analogue is linked to that State’s Sunshine

law, which imposes obligations to do business in a more open manner than Federal officials are accustomed. NEPA’s regulations require that growth-inducing

impacts be evaluated, while California’s CEQA does the same thing by legislative enactment, and I understand some Federal officials think (wrongly, I believe) that therefore the California requirement imposes something additional

to the Federal requirement. Federal officials are sometimes reluctant to participate in a cooperative Federal-State process which adds any requirement to or

departs from the accustomed NEPA process.

Sometimes there are simply different ways of doing things. On one occasion

I dealt with two Federal agencies, in one of which it was the practice for the

agency to sign a Draft EA before it went out for public review, and in the

other it was the practice to sign it only after it had been revised to reflect public input. It took a certain degree of pushing to get them to compromise. Sometime there are local political considerations which a Federal official is reluctant to acknowledge. I know of one instance in which a California city was

proposing an expansion of its airport, which needed both CEQA and NEPA

compliance. A majority of the City Council was in favor of the new runway,

but was unsure what would happen in the next election and wanted the expansion approved in time so that it would not be an issue in the election (and

the runway potentially scuttled). The election drove the local time table, but

the Federal agency refused to commit itself to the same timetable, with the

result that duplicative CEQA and NEPA documents were prepared under two

separate processes with the CEQA document being completed before the election and the nearly identical NEPA document being completed after it.

All these problems should be non-issues. It is quite possible with goodwill

to deal with and solve them. There is no reason why both Federal and State

officials cannot be flexible and mutually respectful of each other’s sovereignty

and statutory obligations and collaborate to prepare one document to satisfy

both laws (even if it has to contain extra sections or chapters that might not

be needed if only one law was governing). From the point of view of an applicant to the two governments, it is going to have to comply with both laws anyway, and one process and one document is more efficient, more rapid, and less

costly than two.

In response to the second part of your question—yes, cooperation can be encouraged by changes to NEPA. While I believe that the existing CEQ Regulation

mandating cooperation (40 CFR § 1506.2 6) provides what ought to be the necessary

36

(c) Agencies shall cooperate with State and local agencies the fullest extent possible to reduce duplication between NEPA and comparable State and local requirements, unless the

agencies are specifically barred from doing so by some other law. Except for cases covered

by paragraph (a) of this section, such cooperation shall to the fullest extent possible include

joint environmental impact statements. In such cases one or more Federal agencies and one

or more State or local agencies shall be joint lead agencies. Where State laws or local ordinances have environmental impact statement requirements in addition to but not in conflict

with those in NEPA, Federal agencies shall cooperate in fulfilling these requirements as

well as those of Federal laws so that one document will comply with all applicable laws. (d) To better integrate environmental impact statements in State or local planning proc- esses, statements shall discuss any inconsistency of a proposed action with any approved

State or local plan and laws (whether or not federally sanctioned). Where an inconsistency

exists, the statement should describe the extent to which the agency would reconcile its proposed action with the plan or law. As may be evident, paragraph (a) applies essentially to State transportation agencies; (b) applies to all State and local agencies; (c) applies to State and local agencies when the State

has a ‘‘mini-NEPA’’ (about half the states); and (d) applies generally. 7Of course Congress can direct the behavior of the Federal officials and not that of State and

local officials, but doing so would solve half the problem and provide an incentive for States to

take comparable action.

direction, a still firmer Congressional directive can reinforce that direction, specifying that Federal officials participating in joint NEPA-State mini-NEPA documents

shall so draft the documents to satisfy the requirements of both Federal and State

laws (even if that requires some analysis additional to what would be done if the

State was not participating) and similarly requiring a sensitivity to the time constraints under which the State or local agency is operating. 7

I trust this is useful to the Task Force and stand ready to be of further assistance should you so desire.

RESPECTFULLY SUBMITTED,

NICHOLAS C. YOST

cc: Vince Sampson

Miss MCMORRIS. Mr. Dreher.

STATEMENT OF ROBERT G. DREHER,

GEORGETOWN UNIVERSITY LAW CENTER

Mr. DREHER. Good morning, Madam Chairwoman and members of the Committee. The National Environmental Policy Act is this

Nation’S basic charter for protection of the environment. It is also

this Nation’s environmental conscience. It is the model for laws enacted around the world because it establishes the basic principle

that governments must consider the effects of their actions on the

human environment and consult with the people affected by those

actions. It is properly regarded as one of America’s great public policy successes. NEPA is, first and foremost, a government accountability statute. It is a law that empowers people—conservationists, yes, but also

businessmen, ranchers, State and local governments, and ordinary

citizens and gives them a voice in Federal decisions that affect

their lives in their communities. And it has been broadly successful

in integrating environmental values into the Federal Government’s

decisionmaking. My written testimony offers compelling examples of NEPA suc- cess, including the survival of the ivory billed woodpecker, whose

habitat was protected by a citizen’s lawsuit under the act. NEPA

thus functions as Congress intended: as a critical tool for democratic diagnosis making. Unfortunately, NEPA has been besieged in recent years by piece- meal proposals in Congress and in the Federal agencies to exempt

Federal activities, to limit environmental reviews, or to restrict

public participation. The Task Force’s review, undertaken on

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NEPA’s 35th anniversary, presented a critical opportunity to recall

the core values that the act serves and to assess how the act serves

those values today.

The Task Force received a letter signed by every former chair of

the Council on Environmental Quality, outlining three principles

central in NEPA: consideration of environmental impact is essential to responsible government decisionmaking; alternatives analysis is the heart of such review; and public involvement is indispensable.

The Task Force should embrace those principles and use them to

measure the act’s success and to assess whether changes like those

being proposed here today truly serve the act’s goals.

Regrettably, the Task Force is focused almost exclusively on complaints about the alleged burden that NEPA imposes on the business communities. It has shown little apparent interest in how well

the act protects the environmental values in fulfillment of Congress’ mandate. The complaints that the Task Force has heard

about NEPA do not remotely warrant legislative changes. The

original objective of NEPA, after all, was precisely to make agency

decisionmaking more deliberate, more careful, and more open to

public debate.

Federal agencies have already gone to great lengths to streamline the NEPA process. Thousands of minor governmental functions

are categorically exempted or considered in short environmental assessments every year. Studies by the Federal Highway Administration and others disprove the claim that the need for review process

causes inordinate delays in decisionmaking. That is not to say that

NEPA’s implementation cannot be improved. But there is no evidence that NEPA generally imposes burdens and delays beyond

what is necessary to accomplish Congress’ goal of responsible Federal decisionmaking.

Critics of litigation overlook the essential role that the independent Federal judiciary plays under NEPA. When Federal agencies fall short, citizen suits are the only mechanism that enforce

the act’s commands for environmental review and public consultation. Critics often complain that the risks of litigation creates pressure on agencies to create bulletproof EISs. I think it might be

more illuminating to ask what these EISs would look like if there

were no citizen enforcement. If citizens did not have the right to

go to court to enforce NEPA, the law would quickly become a dead

letter.

In any event, NEPA’s critics greatly exaggerate the volume of

litigation under NEPA. As Mr. Yost has pointed out, plaintiffs

bring around 100 NEPA lawsuits per year, representing only twotenths of 1 percent of the 50,000 or so actions that Federal agencies

document each year under NEPA. Only a few of those cases result

in court orders blocking government action. And those cases invariably involve serious failures by Federal agencies to assess environmental impacts responsibly or to listen to public concerns.

Business interests often characterize environmental plaintiffs as

improperly seeking near delay in Federal projects they oppose.

There is no basis for such ad hominem attacks. No court has ever

sanctioned a NEPA plaintiff for bringing a frivolous complaint or

for filing suit for improper purpose, such as mere delay.

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Litigation is expensive and time-consuming. It is generally the last resort citizens and conservation groups invoke after serious

problems in the agency’s environmental review have gone

unaddressed.

For these reasons, the procedural barriers some have suggested to limit the public’s right to enforce NEPA are unwarranted. Such

barriers would serve only to insulate Federal agencies from accountability, for mistakes in their environmental reviews, contrary

to the basic principles of the rule of law. A bond requirement, for

example, like a poll tax or a literacy test, would effectively exclude

the poor, minorities, and ordinary citizens from vindicating their

rights.

Now, the NEPA process can be improved in important ways to

better protect environmental values without legislative change.

First, promises to mitigate the adverse effects of Federal actions

should be recognized as binding commitments.

Second, agencies should monitor the environmental effects of

projects after they are completed. And, finally, Federal agencies

need increased training, staff and guidance to fulfill their NEPA

duties effectively and efficiently. Unfortunately, virtually every

Federal agency, including CEQ, faces a mounting shortfall in its

NEPA resources.

NEPA is a simple but profound guarantee of good government,

government that cares about the effects of its actions on the human

environment, on its citizens and on future generations. Each of

your constituents depends on NEPA for information about what the

Federal Government is doing that will affect their lives and communities. NEPA should be celebrated, in my view, on its 30th anniversary, not undermined. Thank you.

Miss MCMORRIS. Thank you very much.

[The prepared statement of Mr. Dreher follows:]

Statement of Robert Dreher, Deputy Executive Director,

Georgetown Environmental Law & Policy Institute

I. INTRODUCTION

Good morning. My name is Robert Dreher. I am Deputy Executive Director of the

Georgetown Environmental Law & Policy Institute, a component of Georgetown

University Law Center that conducts research and education on legal and policy

issues relating to the protection of the environment and conservation of natural resources. Thank you for the opportunity to testify about the National Environmental

Policy Act (‘‘NEPA’’).

The National Environmental Policy Act is this Nation’s basic national charter for

protection of the environment. It is also this Nation’s environmental conscience. It

is the model for laws enacted in states and nations around the world, because it

establishes the basic principle that governments must consider the effects of their

actions on the quality of the human environment, and consult with the people who

will be affected by those actions.

It is first and foremost a government accountability statute, and a public disclosure law. It is the primary law that requires public involvement, and public participation, and public disclosure of the effects of government actions on ordinary people.

It is a law that empowers little people. It empowers business people. It empowers

individuals. It empowers Native Americans. It empowers minorities. It empowers all

of your constituents. And every case that has been brought to enforce this law has

been brought by your constituents against the Federal government, to try to ensure

that the Federal government looks carefully at the consequences of its actions on

those people. In that sense, it is, indeed, the nation’s environmental conscience.

My testimony today will address the broad questions facing this Task Force as

it completes its review of the Act’s implementation:

1. What values does NEPA serve?

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2. Is there persuasive evidence that the Act as implemented today does not appro- priately serve the purposes Congress envisioned? 3. How can the Act’s implementation be improved?

My testimony draws upon my experience in litigation, in counseling clients, and in academic research and teaching regarding environmental impact analysis under

NEPA. As a staff attorney for the Sierra Club Legal Defense Fund (now

Earthjustice), I represented citizens and environmental organizations in litigation

under that statute and other environmental laws for more than 10 years. From

1996-2000, I served as Deputy General Counsel to the U.S. Environmental Protection Agency; in that capacity I advised agency officials on matters related to NEPA

and represented EPA in interagency discussions concerning the federal government’s compliance with the Act. After my service at EPA, I counseled companies

and government agencies on NEPA compliance in private practice with the firm

Troutman Sanders. At the Georgetown Environmental Law & Policy Institute, I authored a report that identifies the many current legislative and administrative

threats to NEPA’s integrity and survival, offers a critical evaluation of the rationales advanced by NEPA’s opponents for these attacks on the law, and suggests several meaningful improvements in how NEPA functions. NEPA Under Siege (available at www.law.georgetown.edu/gelpi/news/documents/NEPAUnderSiegeFinal—

000.pdf). I have taught Federal Natural Resources Law, including NEPA compliance, at the George Washington University Law School for 13 years, and also at the

Georgetown University Law Center this year. I would note that my testimony expresses my views; it does not necessarily reflect the views of the Institute’s board

of advisors or Georgetown University.

II. THE NARROW SCOPE OF THE TASK FORCE’S REVIEW OF NEPA

I would note at the outset that the Task Force has compiled an oddly limited

record to approach these important questions. Indeed, the Task Force’s review may

be notable as much for voices not listened to and questions not asked as for the concerns it in fact has focused on regarding NEPA’s implementation. The Task Force’s

review, undertaken on NEPA’s 35th anniversary, presented the opportunity to reexamine the core values that the Act serves, and to assess the extent to which the

Act as implemented today effectively serves those principles. To understand whether

NEPA continues to serve the public well, the Task Force must ask what values it

serves and how well it serves them.

The Task Force received a letter this fall from every living former chair of the

Council on Environmental Quality, respected environmental leaders who served

Presidents Nixon, Ford, Carter, George H.W. Bush, and Clinton. That letter identified three basic principles underlying NEPA:

(1) ‘‘consideration of the impacts of proposed government actions on the quality

of the human environment is essential to responsible government decisionmaking,’’

(2) ‘‘analysis of alternatives to an agency’s proposed course of action is the heart

of meaningful environmental review,’’ and

(3) ‘‘the public plays an indispensable role in the NEPA process.’’

Letter from Russell E. Train, Russell W. Peterson, John Busterud, Charles W. Warren, J. Gustave Speth, Michael R. Deland, Kathleen A. McGinty, George T.

Frampton, Jr., Gary Widman, and Nick Yost to The Honorable Cathy McMorris

(September 19, 2005). Those principles of bi-partisan good government should be

embraced by the Task Force. They should serve as the basic measuring stick to assess whether NEPA is being properly implemented today, and to evaluate any proposals for changes in the law or in its implementation.

Unfortunately, the Task Force to date has focused on a narrow, and almost uniformly negative, set of concerns: complaints raised by representatives of businesses

that use federal public lands and natural resources for economic benefit that compliance with the Act’s procedures imposes burdens and delays on their activities. The

Task Force has shown little apparent interest in how NEPA protects environmental

values, in fulfillment of Congress’s original goals for the Act. Perhaps for that reason, the Task Force appears not to have been particularly interested in the views

of conservationists and recreationists who, not surprisingly, see the value of NEPA

and other environmental laws in a very different light from business users of federal

lands and resources. Moreover, the Task Force virtually ignored the people with the

most hands-on experience in implementing NEPA: federal officials responsible for

complying with the Act.

Apart from a single regional Forest Service official, and today’s testimony from

James Connaughton, Chairman of the Council on Environmental Quality, the Task

Force has shown no interest in learning how federal agencies view NEPA, or how

they think the Act’s implementation can be improved. The Department of Energy,

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for example, conducts hundreds of NEPA analyses each year; its highest environmental official, Assistant Secretary John Spitaleri Shaw, recently observed that

‘‘NEPA is an essential platform for providing useful information to decisionmakers

and the public, supporting good decisionmaking, and thus advancing DOE’s mission.’’ Department of Energy, NEPA Lessons Learned (March 1, 2005) at 1, at http:/

/www.eh.doe.gov/neap/lessons.html. Why would the Task Force not want to hear his

views? Or the views of experienced Justice Department litigators on the extent to

which NEPA litigation reflects real problems in agency compliance? By contrast,

CEQ’s recent Interagency NEPA Task Force drew heavily upon the expertise and

perspective of experienced federal NEPA managers in conducting a sober assessment of the Act’s implementation and in developing meaningful recommendations

for improving the NEPA process. None of the CEQ Task Force’s recommendations,

significantly, suggest a need for changes in the Act itself or in the CEQ regulations

that serve effectively as the bible for federal agencies complying with NEPA. Perhaps the most glaring omission in the Task Force’s deliberations has been its failure even to address the urgent threat to NEPA’s integrity and future arising

from the actions of Congress, and of certain administrative agencies, seeking to

carve out piece-meal exemptions from the Act’s requirements. My report, NEPA

Under Siege, describes these assaults on the Act, ranging from measures in the

2003 Healthy Forests Restoration Act that restrict analysis of alternatives and limit

public participation in forest thinning projects to the ‘‘rebuttable presumption’’ established by the recent Energy Policy Act of 2005 that numerous oil and gas activities are categorically excluded from NEPA analysis. The most disturbing of these

measures (1) exempt large categories of government activity from the NEPA environmental review process, (2) restrict the substance of environmental analysis under

NEPA, in particular by allowing federal agencies to ignore environmentally superior

alternatives to a proposed action, and (3) limit opportunities for the public to comment on and challenge agency environmental reviews. Cumulatively, these proposals threaten to kill the NEPA process with a thousand cuts.

The Chairman of the Committee on Resources has identified the proliferation of

these ad hoc exemptions as one reason for the Task Force to undertake a comprehensive review of the Act’s working. Yet the Task Force has not examined the

justification for and impact of such ad hoc exemptions from the Act’s procedures,

has not considered whether such exemptions serve or disserve NEPA’s purposes,

and has not called for a moratorium on such measures pending the completion of

the Task Force’s review. To the contrary, members of the House Resources Committee have themselves repeatedly advanced proposals to limit NEPA’s application,

such as Representative Pombo’s proposal to eliminate alternatives analysis for renewable energy projects, even while the Task Force has been engaged in this review.

The Task Force has thus assembled a regrettably poor foundation, in my view,

for a balanced, responsible assessment of NEPA’s role in government decision-making or the ways in which its implementation could be improved.

III. THE VALUES NEPA SERVES

Congress enacted the National Environmental Policy Act in 1969 by overwhelming bipartisan majorities. The Senate committee report on NEPA stated: ‘‘It

is the unanimous view of the members of the Y Committee that our Nation’s present

state of knowledge, our established public policies, and our existing governmental

institutions are not adequate to deal with the growing environmental problems and

crises the Nation faces.’’ Much of the problem, the Senate committee concluded, lay

in the fact that federal agencies lacked clear statutory direction to incorporate environmental values into their decision-making: ‘‘One major factor contributing to environmental abuse and deterioration is that actions—often actions having irreversible

consequences—are undertaken without adequate consideration of, or knowledge

about, their impact on the environment.’’ NEPA was acclaimed by ranking Republicans and Democrats in Congress as ‘‘landmark legislation’’ and ‘‘the most important and far-reaching environmental and conservation measure ever enacted.’’ When

President Nixon signed NEPA into law on New Year’s Day, 1970, he hailed the Act

as providing the ‘‘direction’’ for the country to ‘‘regain[] a productive harmony

between man and nature.’’

NEPA has three visionary elements: a far-sighted declaration of national environmental policy, an action-forcing mechanism to ensure that the federal government

achieves the Act’s environmental goals, and a broad recognition of the importance

of public participation in government decision-making that affects the human environment.

First, the Act declares a national policy for environmental protection. Recognizing

the ‘‘profound impact of man’s activity on the—natural environment,’’ and the

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‘‘critical importance of restoring and maintaining environmental quality to the overall welfare and development of man,’’ Section 101 of NEPA commits the federal government to ‘‘use all practicable means and measures, Y 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.’’

Congress directed that ‘‘to the fullest extent possible’’ the policies, regulations, and

laws of the United States be interpreted and administered in accordance with the

Act’s environmental policies.

Second, NEPA creates an ‘‘action-forcing’’ mechanism to reduce the environmental damage caused by federal actions ‘‘undertaken without adequate consideration of,

or knowledge about, their impact on the environment.’’ The Act directs federal agencies, before proceeding with any ‘‘major Federal action,’’ to prepare a ‘‘detailed statement’’ addressing how such action may affect the environment. The statement, now

known as an ‘‘environmental impact statement’’ or ‘‘EIS,’’ must consider and disclose

to the public the environmental impact of the proposed action, alternatives to the

proposed action, and the relationship between short-term benefits from the action

and long-term environmental productivity. In addition to EISs, agencies prepare

less-extensive ‘‘environmental assessments,’’ or ‘‘EAs,’’ under NEPA to help them determine whether proposed actions will have significant impacts warranting preparation of an EIS, and may adopt rules excluding from analysis categories of minor federal actions that have been found not to have significant effects, either individually

or cumulatively. NEPA thus gives effect to the common-sense axiom ‘‘look before you leap.’’ The Act does not require federal agencies to choose an environmentally-friendly course

over a less environmentally-friendly option. But, as a practical matter, the requirement to prepare an EIS ensures that agency decisions will reflect environmental

values. As the Supreme Court has observed:

Simply by focusing the agency’s attention on the environmental consequences of a proposed project, NEPA ensures that important effects will

not be overlooked or underestimated only to be discovered after resources

have been committed or the die otherwise cast. Moreover, the strong precatory language of...the Act and the requirement that agencies prepare detailed impact statements inevitably bring pressure to bear on agencies to

respond to the needs of environmental quality. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Analysis of

alternatives is the ‘‘heart’’ of an EIS, as the CEQ regulations recognize. Comparing

the environmental impacts of an agency plan with the impacts of alternative courses

of action helps define the relevant issues and provides a clear basis for choosing

among options. By considering and, where appropriate, adopting reasonable alternatives that meet agency objectives with less environmental impact, federal agencies can achieve NEPA’s environmental protection goals while implementing their

primary missions.

The third visionary element of NEPA is its creation of broad opportunities for

members of the public to participate in government decisions that affect their environment. Congresswoman McMorris suggested at the November 10th hearing that

public participation in the NEPA process comes only at the end, when a final document is circulated. Nothing could be further from the truth. Opportunities for public

participation in the NEPA process start at the very beginning, when agencies conduct ‘‘scoping’’ meetings to determine what environmental issues and concerns

should be studied. The public can propose alternative approaches for the agency to

evaluate, and can later comment on gaps and misunderstandings in the agency’s

analysis at the draft stage of the EIS. The circulation of the final EIS typically includes another period for public scrutiny, but it is only the end of a long public process. And ‘‘the public’’ includes not only individual citizens, but businesses, charitable

organizations, towns and other local governments, tribes, state agencies, and even

other federal agencies affected by a proposed action.

Public participation in the NEPA process serves two functions. First, individual

citizens and communities affected by a proposed federal agency action can be a valuable source of information and ideas, improving the quality of environmental analysis in NEPA documents as well as the quality of agency decisions. Second, allowing

citizens to communicate and engage with federal decision-makers serves fundamental principles of democratic governance. NEPA reflects the belief that citizens

have a right to know, and to be heard, when their government proposes actions that

may affect them. For many individuals and communities who understandably perceive federal agencies as remote and insensitive, public participation in the NEPA

process creates a valuable crack in the bureaucratic wall. Indeed, for many federal

agencies the process of broad public involvement established under NEPA is the

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primary avenue for communicating with and engaging the public regarding their activities and for fulfilling more general requirements in their governing statutes for

public participation.

NEPA has been extraordinarily successful in accomplishing these goals over its 35-year history. First, NEPA has unquestionably improved the quality of federal

agency decision-making in terms of its sensitivity to environmental concerns. Examples are legion in which proposed federal actions that would have had serious environmental consequences were dramatically improved, or even in some instances

abandoned, as a result of the NEPA process. To cite just a few instances: • In the early 1990s, mounting problems with obsolescent nuclear reactors at its

Savannah River site put the Department of Energy under pressure to build

enormously expensive new reactors to produce tritium, a key constituent of nuclear warheads. A programmatic EIS allowed DOE to evaluate alternative technologies, including using a particle accelerator or existing commercial reactors,

leading ultimately to cancellation of the tritium production reactors. Secretary

of Energy James Watkins testified before the House Armed Services Committee:

‘‘Looking back on it, thank God for NEPA because there were so many pressures to make a selection for a technology that it might have been forced upon

us, and that would have been wrong for the country.’’ • The NEPA process led to improvements in a land management plan for the Los

Alamos National Laboratory that averted a potentially serious release of radiation when the sensitive nuclear laboratory was swept by wildfire in May 2000.

The laboratory’s initial management plan did not address the risk of wildfire,

but comments on the draft EIS alerted the Los Alamos staff to that risk. The

laboratory prepared a fire contingency plan, cut back trees and underbrush

around its buildings, and replaced wooden pallets holding drums of radioactive

waste with aluminum. Those preparations turned out to be invaluable when a

major wildfire swept Los Alamos the following year. • In 1997, the Federal Energy Regulatory Commission was considering issuance

of a license for construction of a major new hydropower dam on the Penobscot

River in Maine. The EIS disclosed that the proposed Basin Mills Dam would

undermine long-standing federal, state and tribal efforts to restore wild Atlantic

salmon populations to the Penobscot River. FERC received strong comments in

opposition to the project from federal and state fishery managers and the Penobscot Indian Nation, among others, and concluded that the public interest

was best served by denial of the license. • The Ivory-billed woodpecker, recently rediscovered to great public celebration,

owes its survival in large part to NEPA. In 1971, shortly after NEPA’s enactment, the Army Corps of Engineers proposed to channelize the Cache River for

flood control, threatening the bottomland hardwood wetlands in the river basin

on which the woodpecker and many other species of wildlife depended. Environmentalists challenged the adequacy of the Corps’ NEPA analysis in court, pointing out that the Corps had failed to evaluate alternatives to its massive dredging program that would cause less damage to wetland habitat. The court enjoined the Corps from proceeding until it fully considered alternatives, and public outcry subsequently led to the abandonment of the dredging project and the

creation of the national wildlife refuge where the Ivory-billed woodpecker was

recently sighted.

• A massive timber sale proposed for the Gifford Pinchot National Forest in Oregon, stalled by controversy over impacts on sensitive forest habitat, was entirely rethought as a result of the NEPA process. A coalition of environmentalists, the timber industry, labor representatives and local citizens worked together to develop a plan to use timber harvest to restore the forest’s natural

ecosystem. Instead of clearcuts, the new proposal focuses on thinning dense

stands of Douglas fir (the result of previous clearcutting) to recreate a more natural, diverse forest structure, while still yielding 5.2 million board feet of commercial timber. The citizen alternative was adopted by the Forest Service and

implemented without appeals or litigation. A local resident involved in the process says: ‘‘It’s a win, win, win.’’

• In Michigan, communities concerned about the impacts of a proposed new fourlane freeway successfully used the NEPA process to force the state highway

agency to consider alternatives for expanding and improving an existing highway, avoiding the largest wetland loss in Michigan’s history and saving taxpayers $1.5 billion. Similarly, a proposed freeway in Kentucky’s scenic bluegrass

region was redesigned to protect historic, aesthetic and natural values thanks

to public input and legal action during the NEPA planning process. The National Trust for Historic Preservation acclaimed the Paris Pike as a project that

‘‘celebrates the spirit of place instead of obliterating it.’’

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These and other similar examples only begin to tell the story of NEPA’s success,

however. One of NEPA’s most significant effects has likely been to deter federal

agencies from bringing forward proposed projects that could not withstand public

examination and debate. Prior to NEPA, federal agencies could embark on massive

dam- or road-building projects, for example, without public consultation and with

virtually no advance notice. As a result, family farms, valuable habitat, and sometimes whole communities were destroyed without the opportunity for full and fair

debate. One dramatic example is Operation Plowshare, the proposal by the Atomic

Energy Commission in the 1950s and 60s to use nuclear weapons to excavate harbors, dig canals, and create quarries. Such projects could never survive public scrutiny under NEPA, and today simply never get off the drawing boards.

More broadly, NEPA has had pervasive effects on the conduct and thinking of federal administrative agencies. Congress’s directive that federal agencies use an

‘‘interdisciplinary approach’’ in decision-making affecting the environment, together

with the Act’s requirement that agencies conduct detailed environmental analyses

of major actions, has required federal agencies to add biologists, geologists, landscape architects, archeologists, and environmental planners to their staffs. These

new employees brought new perspectives and sensitivities to agencies that formerly

had relatively narrow, mission-oriented cultures. NEPA’s requirement that agencies

consult with federal and state agencies with special environmental expertise also

has helped broaden agency awareness of environmental values.

Equally important, NEPA has succeeded in expanding public engagement in government decision-making, improving the quality of agency decisions and fulfilling

principles of democratic governance that are central to our society. Today, citizens

take it as a given that major governmental actions that could affect their lives and

their communities will be subject to searching public examination and discussion.

As CEQ concluded in a report commemorating NEPA’s 25th anniversary, ‘‘NEPA’s

most enduring legacy is as a framework for collaboration between federal agencies

and those who will bear the environmental, social, and economic impacts of their

decisions.’’ CEQ noted that ‘‘agencies today are more likely to consider the views of

those who live and work in the surrounding community and others during the decision-making process.’’ As a result, ‘‘Federal agencies today are better informed about

and more responsible for the consequences of their actions than they were before

NEPA was passed.’’

NEPA thus functions, as Congress intended, as a critical tool for democratic government decision-making. The Act ensures that federal agencies weigh environmental consequences before taking major action, and establishes an orderly, clear

framework for involving the public in major decisions affecting their lives and communities.

IV. CRITICISMS OF THE ACT

The Task Force has nonetheless heard complaints about the Act, particularly from

representatives of businesses seeking economic benefit from federal lands and resources. That criticism has focused on the general allegation that NEPA imposes

undue burdens on business interests. NEPA’s critics also claim that litigation by

citizens seeking to enforce the Act is brought for improper purposes, and inappropriately bogs down federal decision processes. Neither complaint, in my view, is warranted.

The Argument That NEPA Is Too Burdensome and Time-Consuming

As an initial matter, it bears emphasis that making agency decision-making more

deliberate—and creating opportunities for public debate and discussion—was one of

the original objectives of NEPA. NEPA was adopted out of concern that federal

agencies too often acted unilaterally, without taking the time to consider alternatives to their proposed actions and without providing an opportunity for the public to comment. Thus, complaints about the delays produced by NEPA may simply

reflect disagreement with NEPA’s goal of fostering more careful, and more open,

federal decision-making.

In addition, those objecting to alleged delays and administrative burdens imposed

by NEPA generally fail to acknowledge the great lengths to which federal agencies

have already gone to streamline the NEPA process. Many thousands of minor

government functions are categorically exempted from NEPA analysis each year.

CEQ has estimated another 50,000 federal actions are given limited review in environmental assessments each year. As a result of this winnowing process, agencies

prepare only about 500 draft, final and supplemental EISs annually. In the case of

federally-funded highway projects, for example, 97% of the projects are dealt with

under a categorical exclusion or by preparing an EA; only 3% require preparation

of an EIS.

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Finally, the evidence does not support the argument that the NEPA review proc- ess causes inordinate delays in decision-making. For example, studies by the Federal Highway Administration (‘‘FHWA’’) show that environmental reviews take up

only a quarter of the total time devoted to planning and constructing a major highway project, hardly a disproportionate commitment for projects that will make permanent changes to the landscape. The significant delays that sometimes occur in

highway projects are generally due to other causes, such as lack of funding, the low

priority assigned to a project by the sponsoring state transportation agency, or significant local disagreements over the merits of the project. A comprehensive survey

conducted by the Natural Resources Council of America of agency NEPA implementation confirmed that NEPA is not a major cause of project delays: In none of the twelve agencies reviewed during this study did NEPA

emerge as the principal cause of excessive delays or costs. Instead, the

NEPA process was often viewed as the means by which a wide range of

planning and review requirements were integrated. Other administrative

and Congressional requirements were sometimes cited as resulting in

lengthy delays in decision making, which persons outside the agencies attributed to NEPA.

Robert Smythe & Caroline Isber, Natural Resources Council of America, NEPA in

the Agencies—2002 1 (October 2002). That is not to say that NEPA’s implementation cannot be improved, or that every

environmental review under the Act is well managed. Although CEQ’s regulations

emphasize that environmental reviews should be efficient, timely and useful for federal decision-makers, federal agencies sometimes produce EISs that are too lengthy

and technical for agency decision-makers or the public to readily understand. NEPA

processes are sometimes poorly managed, uncoordinated, and unduly prolonged. As

discussed below, better management of the NEPA process, and improved guidance

and training for federal agencies, are important in order to make the Act work more

effectively. But there is no evidence that NEPA has, as a general matter, imposed

burdens and delays on agencies beyond what Congress originally contemplated in

enacting NEPA or beyond what is necessary to accomplish NEPA’s environmentalprotection goal.

The Argument That NEPA Generates Wasteful Litigation

Critics of NEPA also contend that the Act produces too much wasteful litigation.

But this criticism overlooks the essential role the independent federal judiciary

plays in ensuring that NEPA is actually enforced. When federal agencies’ NEPA

compliance falls short, litigation brought by aggrieved parties enforces the Act’s

commands for environmental review and public consultation in the context of particular projects. More broadly, individual NEPA suits send the message to agencies

that the courts will police compliance with the law. Agency personnel and industry

representatives sometimes complain about the pressure that the Act places on agencies to do thorough and defensible environmental reviews, lamenting the creation

of ‘‘bullet-proof’’ EISs. It is more illuminating, perhaps, to ask what federal EISs

would look like if there were no concern about potential citizen enforcement. Sixpage checklists, with no substance, like some agency EAs today? If citizens did not

have the right to go to court to enforce NEPA, I think it is fair to presume that

the law would quickly become a virtual dead letter.

Congresswoman McMorris observed during the Task Force’s hearing on November

10th that it is not clear that ‘‘anything has been settled’’ by NEPA litigation. To

the contrary, the courts’ rulings in NEPA cases have clarified many of the basic

principles for conducting environmental impact analysis under the Act. The application of those principles to the circumstances of a particular federal project, however,

is inevitably case-specific. It is thus not surprising that the courts confront certain

difficult issues, such as whether a federal agency has properly determined that its

action will not have significant effects on the human environment, or has adequately considered cumulative impacts, over and over again in the context of particular cases.

In any event, NEPA’s critics greatly exaggerate the volume of litigation NEPA

generates. At the November 10th, for example, Congresswoman McMorris suggested

that ‘‘thousands of NEPA suits’’ were pending before the courts. In fact, according

to CEQ, only 251 NEPA suits were pending in 2004. Because agency compliance

with NEPA is now generally quite good, NEPA actually generates a relatively small

volume of litigation. Concerned parties typically file about 100 NEPA lawsuits per

year, representing only 0.2% of the 50.000 or so federal actions documented each

year under NEPA. CEQ, Environmental Quality: 25th Anniversary Report 51 (1994-

95). The incidence of NEPA litigation has risen slightly in this Administration, averaging about 140 suits per year, but that number still represents an infinitesimal

45

fraction of federal actions subject to the Act. Not surprisingly, given the broad range

of interests involved in the NEPA process, the types of plaintiffs bringing these suits

cover the waterfront, including state agencies, local governments, business groups,

individual property owners, and Indian tribes, as well as environmental groups.

Even the tiny fraction of NEPA actions that give rise to court suits overstates the

significance of litigation, because only a few of these suits result in court orders

blocking government action. According to data compiled by CEQ, preliminary injunctive relief was granted in NEPA cases only 55 times from 2001-2004, and permanent injunctions were issued only 42 times (often, presumably, in the same case

in which preliminary injunctive relief had been granted). The term ‘‘permanent injunction’’ is misleading in this context, of course, because even a final court order

only imposes a temporary delay until the agency revises its environmental review

to comply with NEPA. The courts ordered a remand of certain issues to the federal

agency in 66 cases in those four years. On the other hand, the courts ruled for the

defendant agencies 214 times during this period, and dismissed NEPA cases (in

some cases after a settlement) in another 259 cases. CEQ litigation surveys 2001-

2004, at http:/ceq.eh.doe.gov/nepa. Given the continuing importance of judicial enforcement in ensuring faithful implementation of NEPA, the complexity of environmental impact analysis and the controversy frequently generated by major government actions, these data are neither surprising nor particularly troubling.

NEPA’s critics also routinely disparage the motivations of plaintiffs who challenge

agency environmental reviews. Business interests, some of whom openly admit that

they themselves turn to the courts to enforce the Act, often characterize environmental plaintiffs as improperly seeking ‘‘mere delay’’ in federal projects they oppose.

There is no record in the hundreds of NEPA decisions issued by the courts to support such ad hominem attacks. The rules of civil procedure require counsel in any

litigation to certify, based on reasonable inquiry, that the action is not brought for

any improper purpose, such as to harass or to cause unnecessary delay or needless

cost, and that the claims presented have a sound basis in fact and law. To my

knowledge, no court has ever sanctioned a NEPA plaintiff for bringing a frivolous

complaint, or for filing suit for improper purpose, such as mere delay. The only

cases I have found in which the courts have entertained motions for such sanctions

involved businesses suing under NEPA to protect purely economic interests—seeking to impede a competitor who has received a federal permit or license, for

example—rather than environmental interests, and even those requests have been

denied.

Litigation is expensive and time-consuming; it is generally the last resort citizens

and conservation groups invoke after serious problems in an agency’s environmental

review have gone unaddressed. Moreover, environmental plaintiffs understand that

NEPA only requires reasonable, good-faith consideration and disclosure of environmental consequences, and cannot be invoked to reverse an agency’s substantive decision to proceed with an action. Environmental plaintiffs thus harbor no expectation

that a federal court will substitute its judgment on the wisdom of a proposed project

for that of the agency. What environmentalists do hope is that requiring an agency

to fully evaluate and disclose the environmental impacts of a proposed action may

lead to a different, more environmentally-sensitive approach—adoption of an alternative with less environmental impact, or commitment of additional mitigation, for

example. Where environmental damage is particularly severe, and appears to outweighs the public benefits of a project, environmentalists may hope that the

agency—or Congress—can be persuaded to cancel a proposed project altogether. But

such hopes are founded in the beneficial effect that identification and disclosure of

environmental consequences have on government decision making, just as Congress

envisioned when it enacted NEPA.

For these reasons, the severe procedural barriers some have suggested to limit

NEPA litigation are wholly unwarranted, and would serve only to prevent the public

from vindicating its rights under the Act. Members of the Task Force discussed at

the November 10th hearing a proposal to require plaintiffs to file a substantial bond

before bringing suit under NEPA, for example. That mechanism would impose crippling and unfair disabilities on citizens and non-profit organizations. Like a poll tax

or a literacy test, it would serve effectively to exclude the poor and minorities from

protecting their rights in the federal courts. Others have suggested impossibly tight

statutes of limitation for bringing suit—20 days, for example. Such time pressures

would make reasoned consideration of whether litigation is warranted virtually impossible, particularly for citizens faced with wading through massive agency decision documents. Unnecessary litigation, brought as a protective measure to avoid

the loss of a plaintiff’s rights, would inevitably result.

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V. REFORMS TO IMPROVE THE ACT’S IMPLEMENTATION

Although much criticism of NEPA is unwarranted, there are important improvements that can and should be made to the NEPA process to better protect environmental values, in fulfillment of Congress’s purposes. None of these improvements

would require legislation.

Make Mitigation Promises Mandatory

First, agency promises during the course of the NEPA review process to ‘‘mitigate’’

the adverse effects of federal actions should be recognized by the agencies as binding

commitments. Virtually every federal agency decision made under NEPA includes

some mitigation designed to avoid, reduce, or compensate for environmental damage

that would otherwise occur. Mitigation measures may include, for example, installing fish passage at a new hydropower dam, restoring degraded wetlands to compensate for wetlands destroyed by a new roadway, or adopting traffic reduction

measures to reduce air pollution from a new development. Agencies routinely point

to proposed mitigation measures in NEPA documents to explain how the adverse

effects of a federal agency action have been reduced to an acceptable level. Agencies

also rely on mitigation to justify the conclusion that their actions will not have sufficiently significant adverse effects to require an EIS, allowing them to issue a ‘‘mitigated FONSI’’ on the basis of a relatively superficial EA instead. Failure to carry

through on such mitigation seriously undermines NEPA’s goal of protecting the environment, and undermines the integrity of the NEPA review process.

To maintain the integrity of their NEPA analyses, federal agencies should revise

their NEPA procedures to preclude hollow promises of mitigation. When an agency

proposes a mitigation measure as part of the preferred alternative under NEPA, the

agency’s decision to proceed with the action should include a commitment to proceed

with the mitigation as well. Unless the proposed mitigation is guaranteed under the

requirements of a separate statute or regulation, agencies should be allowed to rely

upon mitigation in the NEPA process only if (1) the mitigation is made an integral

part of the proposed action, (2) it is described in sufficient detail to permit reasonable assessment of future effectiveness, and (3) the agency formally commits to its

implementation in the Record of Decision, and has dedicated sufficient resources to

implement the mitigation. Where a private applicant is involved, the mitigation requirement should be made a legally enforceable condition of the license or permit.

The feasibility of this proposed reform is confirmed by the Department of the Army’s

2002 NEPA regulations, which require Army officials to demonstrate that any mitigation measures included in a final decision have been funded as an integral part

of the project and to commit to implementing the mitigation and monitoring its effectiveness. 32 C.F.R. ’ 651.15(b) (2003). Similarly, where the Army relies on mitigation measures to conclude that an EIS is not needed, such measures ‘‘become legally

binding and must be accomplished as the project is implemented.’’ Id.

Require Monitoring of Project Impacts

A second useful reform would be to enhance monitoring of the environmental effects of projects after they are completed. Too often, federal agencies invest significant resources in complex scientific assessments of the potential consequences of a

proposed action without committing sufficient resources to monitoring the project’s

actual impacts.

Enhanced monitoring goes hand in glove with the proposal to make promised

mitigation measures enforceable commitments. On-the-ground inspection and evaluation to make sure mitigation measures are being implemented successfully are essential to make mitigation commitments real. Improved monitoring also will provide

the basic data necessary to conduct adaptive management, where that technique is

potentially useful, and to help implement agency environmental management systems. Monitoring should reveal where the agency’s actions are having greater impacts than anticipated, allowing the agency, and the public, to assess whether additional mitigation steps are needed. By the same token, monitoring will demonstrate

whether projects or programs have produced completely unanticipated environmental effects. Monitoring thus can help ensure that NEPA supports a continuing,

flexible, and responsive approach to managing the environmental effects of agency

actions. Finally, improved monitoring will provide the data needed to allow agencies

and environmental professionals to assess the accuracy and reliability of environmental reviews and evaluate new methodologies for environmental impact assessment, improving the NEPA process in the long term.

Improve Management, Training and Funding for Agency NEPA Compliance

Although NEPA has been in effect for 35 years, federal agencies still struggle to

carry out its mandate to incorporate environmental values and public views in

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federal decision-making. CEQ has called repeatedly for agencies to improve their

implementation of NEPA to make environmental reviews more focused, more useful

to the decision-maker, and less burdensome. The CEQ regulations direct federal

agencies to reduce paperwork by limiting the length of EISs, using the scoping process to identify significant issues and writing in plain language, and to reduce delay

by integrating the NEPA process into the agencies’ early planning, establishing time

frames for the analysis and coordinating with other responsible federal, state and

local agencies. 40 C.F.R. §§ 1500.4, 1500.5. Not all federal agencies have heeded CEQ’s direction, unfortunately. Furthermore, some aspects of environmental impact assessment are technically complex and poorly understood by federal agency officials. Cumulative impact analysis, for example,

is a difficult and evolving field that often poses challenges for federal agencies engaged in environmental reviews. Integration of NEPA analysis with adaptive management and with newly-developed agency environmental management systems is

another challenge, requiring creative and careful thinking from federal agencies. Improving agency implementation of NEPA will require increased attention by agency managers, who must take responsibility for ensuring that environmental reviews are integrated into agency decision processes, coordinated with other affected

agencies, and completed in a timely manner. Expanded guidance and training for

federal agencies on NEPA implementation is also critically important. The Interagency NEPA Task Force recently called on CEQ to provide more training and guidance for federal agencies, particularly on difficult technical issues, such as cumulative effects analysis and adaptive management. NEPA Task Force, Report to the

Council on Environmental Quality: Modernizing NEPA Implementation (Sept.

2003). CEQ’s ability to meet the critical need for such guidance and training is constrained, unfortunately, by severe funding and staffing limitations.

More generally, there is a serious and mounting shortfall in the financial resources provided to federal agencies to carry out their NEPA responsibilities. Every

study of NEPA implementation has highlighted the problem of inadequate financial

and staff resources. Unfortunately, the deficiency in agency NEPA funding continues to get worse: agency NEPA staffs face increasing workloads, but a majority

of agency NEPA offices have nonetheless suffered substantial reductions in both

their budgets and staff positions in the past few years. Staff in the Army Corps of

Engineers’ Office of Environmental Quality, for example, which oversees all environmental aspects of the Army Corps’ civil works program, has been reduced over the

last several years from 12 to 3 full time employees (‘‘FTEs’’). Similarly, the Department of Energy’s headquarters Environmental Office has been reduced over the past

decade from 26 FTEs to 14, and its budget cut from $7 million to $1.5 million, even

as its NEPA workload has increased. Without adequate funding and staffing to

carry out their NEPA responsibilities, the pressure will inevitably mount on agencies to find ways to short-cut NEPA compliance.

A meaningful effort to improve NEPA’s implementation thus must include commitments of additional resources so that agencies can carry out their responsibilities

under the Act effectively and efficiently.

VI. CONCLUSION

NEPA is a simple, but profound, guarantee of good government—government that

cares about the effects of its actions on the human environment, on its citizens, and

on future generations. Each of your constituents depends on NEPA for the basic information about what the Federal government is doing that will affect his or her

life and community. NEPA continues to serve the important values Congress recognized in establishing our national environmental policy of ‘‘productive harmony’’

between man and nature. Federal agencies can and should work harder to fulfill

NEPA’s purposes. But the Act continues to serve the American public well. NEPA

should be celebrated on its 35th anniversary, not undermined.

Miss MCMORRIS. Thank you. Mr. Goldstein.

STATEMENT OF NICK GOLDSTEIN, AMERICAN ROAD &

TRANSPORTATION BUILDERS ASSOCIATION

Mr. GOLDSTEIN. Chairwoman McMorris and other members of

the Task Force, I am Nick Goldstein, Staff Attorney for the American Road and Transportation builders Association.

ARTBA represents more than 5,000 members nationwide involved in all sectors of the transportation, design and construction

48

industry. I would like to begin my testimony by thanking the

House Committee on Resources and the members present today for

undertaking a comprehensive effort to review and update the National Environmental Policy Act, NEPA.

Let me stress at the outset that ARTBA shares the Task Force’s

goal of protecting the environment and minimizing the impact of

development. This was the original intent of NEPA. NEPA should

be a means by which to reach informed decisions about major Federal actions. However, in its current state, NEPA generates far

more documents than decisions.

I think all of those appearing before you today would agree that

NEPA plays an essential role in any project decisionmaking process

and that improvements can be made to the NEPA process that

would not weaken or diminish the overall effects of the act.

Specifically, changes in NEPA could be made that reduce the

amount of delay to transportation projects. Even the Sierra Club in

its 2003 report, ‘‘On the Road to Better Transportation Projects,’’

noted that, quote, ‘‘the NEPA process is not perfect, and there are

methods to improve it,’’ end quote.

Sometimes when we look at these issues, it is difficult to see the

forest through the trees. This Nation has been in a—is in a transportation capacity crisis. And the use of NEPA as an impediment

to addressing this challenge is counter to the public interest.

Where NEPA is largely being abused is in the case of new capacity-enhancing projects. It is these projects which have the greatest

potential to improve air quality and public safety through the reduction of travel congestion.

In addition to procedural reforms, ARTBA feels that it is critical

that this Task Force focus on the abuse of NEPA through litigation. The major causes of abuse under NEPA is that the statute allows for lawsuits to be filed with no basis in fact, that have no

other intention but to cause delays to Federal projects. And some

organizations take full advantage of this opportunity.

In graphic terms, Jay Kardan, Conservation Chairman of the

Virginia Chapter of the Sierra Club, offered this perspective.

Quote: ‘‘Facts and reason are much less important than the amount

of noise you can make. Officials who support highway projects

should be mercilessly abused, shamed, ridiculed, and otherwise

made to suffer pain. This objective should be to cleave a division

through the community so painful that people will remember it for

decades afterward.’’

This is not the intent of NEPA. But it reflects how the statute

can and is being abused.

When NEPA is used in this manner, its purpose of achieving balance and obtaining consensus decisions regarding federally funded

projects is defeated. Instead, it is transformed into a vehicle for

needless delay and stifles community decisionmaking.

ARTBA most recently experienced the effects of NEPA being

used as a tool for delay in litigation involving a widening project

of U.S. 95 outside of Las Vegas, Nevada. It is also being felt in

parts of Utah as part of the ongoing political struggles over the legacy highway project.

These types of disruptions have a much bigger effect than simply

putting a construction project on hold while litigation takes place.

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Also put on hold by lawsuits are improvements in air quality, public health, and safety.

It is with this in mind that I offer the Task Force the following

recommendations for improving NEPA:

First, a 180-day time limit on lawsuits has been established in

the recently passed transportation bill as mentioned here today.

This is reasonable and should be extended through NEPA to all

projects.

Second, consideration of the environmental benefits to proposed

projects as opposed to just their impacts as well as the environmental consequences of not undertaking a project need to be incorporated into the NEPA process.

Third, NEPA litigation should be limited only to those issues

that have been fully raised and discussed during the public comment period for a project. This will help ensure that litigation is

not used simply to move the goal posts by opponents of a project

that has otherwise satisfied NEPA requirements.

And finally, the development of a dispute resolution process, ensuring that litigation is used as a last resort rather than a first

step in solving these types of problems.

Members of the Task Force, ARTBA deeply appreciates the opportunity to present testimony to you as part of this important and

needed discussion on NEPA. And I look forward to any questions

that you might have. Thank you.

Miss MCMORRIS. Thank you.

[The prepared statement of Mr. Goldstein follows:]

Statement of Nick Goldstein, Staff Attorney,

American Road and Transportation Builders Association

Good morning, Chairwoman McMorris and other members of the task force.

Thank you very much for providing the American Road and Transportation Builders

Association (ARTBA) the chance to present its views before this task force on the

subject of updating and improving the National Environmental Policy Act (NEPA).

I am Nick Goldstein, staff attorney for ARTBA. ARTBA, whose eight membership

divisions and more than 5,000 members nationwide, represent all sectors—public

and private—of the U.S. transportation design and construction industry. ARTBA

is based here in Washington, D.C., and has provided the industry’s consensus policy

views before Congress, the executive branch, and the federal judiciary for 103 years.

The transportation design and construction industry ARTBA represents generates

$200 billion annually to the nation’s Gross Domestic Product and sustains the employment of more than 2.5 million Americans.

Let me stress at the outset that ARTBA shares the task force’s goal of protecting

the environment and minimizing the impacts of development. ARTBA also supports

NEPA and realizes that it is an integral component of the transportation planning

process.

ARTBA celebrates the commitment of the transportation construction industry to

the environment every year when we hand out the association’s Globe Awards to

those transportation construction professionals, firms and public agencies that do an

outstanding job in protecting and/or enhancing the natural environment in the planning, design and construction of U.S. transportation infrastructure projects. Many,

if not all of these projects would not have been so recognized were it not for the

NEPA process.

NEPA Background

Madame Chairwoman, transportation infrastructure projects must navigate

through an often time-consuming and complex planning process. In 1969, Congress

passed NEPA, which is a process-guiding act of general applicability designed to ensure compliance with the many specific federal environmental laws, permitting and

consultation activities that involve a number of federal agencies. NEPA establishes

general policy, sets goals and provides a means for carrying out these policies.

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NEPA is triggered any time an action by the federal government will result in

an ‘‘environmental impact.’’ The White House Council on Environmental Quality defines ‘‘environmental impacts’’ as any impact on the environment or historic and cultural resources. Agencies such as: the U.S. Army Corps of Engineers (Corps) for wetland and water permits; the U.S. Fish and Wildlife Service (FWS) for Endangered

Species Act compliance; the Advisory Council on Historic Preservation (ACHP) for

historic preservation laws; the U.S. Environmental Protection Agency (EPA); and

many other agencies are commonly involved in this process. NEPA does not mandate specific outcomes. It simply governs how the process must take place. NEPA

is activated in the transportation construction planning process when federal funds

are being used to finance the project.

NEPA establishes three classes of environmental reviews that must take place,

based on the magnitude of the anticipated impact of the proposed transportation

project:

1) Environmental Impact Statement (EIS). Projects where a significant environmental impact is anticipated must complete a full EIS. Many federal agencies,

such as the Federal Highway Administration (FHWA), have developed their

own policies to implement NEPA and to address the necessity of an EIS. For

example, FHWA regulations mandate that an EIS be prepared where a new

controlled access highway or road project with four or more lanes is going to

be constructed on a new location.

2) Environmental Assessment (EA). In instances where neither NEPA nor

FHWA’s own regulations dictate that an EIS must be completed, a less strenuous EA must be completed. An EA will result in one of two results: there will

be a ‘‘finding of no significant impact’’ (FONSI) to the environment; or the

agencies will determine there will be a significant impact, thereby prompting

them to conduct a full EIS. Widening or expanding the capacity of an existing

highway is a typical highway project that would require an EA.

3) Categorical Exclusion (CE). Projects that neither individually nor cumulatively

have a significant environmental impact can be treated as a CE. State agencies

must provide FHWA with sufficient information on a case-by-case basis to

demonstrate that environmental impacts associated with a project will not rise

above the CE threshold. Road rehabilitation or bridge replacement projects are

typical highway projects that would only require a CE.

An EIS is the most intensive and time-consuming of the processes described

above. If an EIS is performed, the agency performing the review, i.e., the state department of transportation (DOT), must prepare a document that identifies each environmental impact of a proposed project, as well as alternatives that may have different impacts and the pros and cons of each. This document must be released in

draft form to allow the public and other government agencies to submit comments.

These comments must then be addressed when the EIS is published in its final

form. In rejecting different alternatives, NEPA requires the agency to carefully document why other alternatives were not selected.

Delays in the Process

Madame Chairwoman, you don’t have to be an expert to know that our transportation planning process has reached a state of gridlock. Today, it is almost as if one

needs a global positioning system to keep track of where a transportation improvement project is in the review process. According to a recent report by the U.S. Government Accountability Office (GAO), as many as 200 major steps are involved in

developing a transportation project from the identification of the project need to the

start of construction. According to the same report, it typically takes between nine

and 19 years to plan, gain approval of, and construct a new major federally funded

highway project. This process involves dozens of overlapping state and federal laws,

including NEPA, state NEPA equivalents, wetland permits, endangered species implementation, clean air conformity, etc. Often times these procedures mask disparate agendas or, at a minimum, demonstrate an institutional lack of interagency

coordination that results in a seemingly endless string of delays.

It is true—according to FHWA—that only about three percent of federally funded

highway projects require the completion of an in-depth EIS. Since1990, Interstate

lane miles have only increased by about six percent. The fact is there are very few

projects in terms of numbers that involve new construction, thereby requiring an

EIS. However, most of these projects are very large in scope and account for a significant portion of each state’s construction budget in any given year. Many of these

projects, while small in number, are very large in terms of cost, often in the range

of tens of millions of dollars and even in excess of a billion dollars each. These

projects also have the most substantial potential benefits for public safety and

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mobility for the traveling public and are, therefore, frequently high priority projects

for most states.

A recent study by FHWA found the time required to process environmental docu- ments for large projects has doubled over the past two decades. In the 1970s, the

average time for completion of an EIS was 2.2 years. Former U.S. DOT Assistant

Secretary for Policy Emil Frankel recently reported that from 1999-2001 the median

time for completing an EIS was 4.4 years. If federal Clean Water Act section 404

wetland permit issues or section 4(f) of the Department of Transportation Act of

1966 (Section 4(f)) historic preservation or parkland avoidance issues come into

play, the average time period grows by an additional two years, on average. However, delays in the transportation project environmental review and approval process are not only limited to large projects. While according to FHWA three percent of federally funded transportation improvement projects require an EIS, the remaining 97 percent require an EA, (6.5 percent) or CE (90.6 percent). A recent report conducted by the National Cooperative Highway Research Program (NCHRP)

stated:

‘‘[D]elays in completing [EA and CE] reviews are encountered frequently despite the minimal environmental impacts associated with such projects.

Even if such project-level delays are individually small, their cumulative

impact may be significant because most transportation projects are processed as CEs or EAs.’’

According to the report, 63 percent of all state DOTs responding to the survey re- ported environmental process delays with preparation of CEs and 81 percent reported similar delays involving EAs. These delays triple average environmental review times for CEs—from about eight months to just under two years—and have

more than doubled review times for EAs, from under 1.5 years to about 3.5 years.

The most common reason for these delays: section 4(f) requirements (66 percent);

section 106 of the National Historic Preservation Act (NHPA) (61 percent); and section 404 of the Clean Water Act (53 percent). These numbers are consistent with

a survey ARTBA conducted in 2001 of 49 state DOTs on delays in the environmental review process.

Because of these lengthy delays, many state DOTs have simply assumed extended time periods in their planning schedules, giving the misimpression that the environmental review process is not taking an inordinately lengthy period of time. While

many environmental groups state that delays are primarily due to funding issues,

the complexity of the project or low priority of the project, just the opposite is true.

State DOTs often withhold funding on projects until the environmental review process is complete, making it appear that funding is the reason for the delay. NEPA was never meant to be a statute that enabled delay, but rather a vehicle to promote balance. While the centerpiece of that balancing is the environmental

impacts of a project, other factors must be considered as well, such as the economic,

safety, and mobility needs of the affected area and how the project or any identified

alternative will affect those needs. When NEPA is used as a method of preventing

a chosen outcome by those who disagree with that decision, its purpose as a balancing statute is defeated.

The basic problem is that the development of a transportation project involves

multiple agencies evaluating the impacts of the project as required by NEPA. While

it would seem that the NEPA process would establish a uniform set of regulations

and submittal documents nationwide, this has not been the case. For example, the

EPA, Corps, FWS and their companion state agencies each require an independent

review and approval process, forcing separate reviews of separate regulations, and

unique determinations of key benchmark issues—such as the purpose and needs of

a project—and requiring planners to answer multiple requests for additional information. Also, each of these agencies issues approvals according to independent

schedules.

The original intent of NEPA was to coordinate the federal decision-making process, rather than splintering it. However, in its current state, NEPA generates far

more documents than it does actual decisions. Instead of spreading out the environmental review process among various agencies, NEPA should consolidate that process among the agency with oversight of that particular project. In the case of a highway project, the U.S. DOT should be the ‘‘lead agency’’ in the environmental review

process. Also, NEPA should coordinate the different aspects of the environmental review process so that they can be done concurrently, and data generated can be used

for multiple aspects of the environmental review process. ARTBA is pleased that reforms with this goal have been included in the recently enacted ‘‘Safe, Accountable,

Flexible, Efficient Transportation Equity Act—A Legacy for Users’’ (SAFETEA-LU).

Even some environmentalists have admitted there are many needless delays in

the environmental review process for transportation projects. In April 29, 1999,

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testimony before the U.S. Senate Environment and Public Works Committee, Roy

Kienitz, then executive director of the Surface Transportation Policy Project said:

‘‘There is no good reason for federal approval to take years if there are no

major disagreements over the project being proposed. These delays are the

most needless of all and are the easiest ones to attack.’’

The Sierra Club has also recognized this, stating in a 2003 report concerning the

effect of NEPA on transportation projects that ‘‘the NEPA process is not perfect, and

there are methods to improve it.’’ One recommendation which the Sierra Club considered ‘‘the most promising’’ was the need for early collaboration among partners

and stakeholders in the planning process. ARTBA wholeheartedly agrees. Issues

need to be vetted as early in the process as possible so they may be resolved or,

in the alternative, bad projects can be abandoned before great amounts of work are

invested in them. Better coordination among the various agencies and stakeholders

involved in the NEPA process is one area where all sides in this discussion believe

positive changes can be made.

Delay Kills

Delays in the environmental review and approval process for transportation improvement projects can have tragic consequences. According to the U.S. DOT, almost

42,000 people are killed each year on the nation’s highways. One person in the U.S.

dies from a traffic crash every 13 minutes and there is one crash-related injury

every 10 seconds. Traffic crashes are the leading cause of death in the U.S. for

people ages 6 to 33, and their economic cost is estimated to be $230.6 billion each

year in added medical, insurance, and other expenses. That’s about 2.3 percent of

the U.S. gross domestic product. To put this figure in perspective, the total annual

public and private health care expenditures caused by tobacco use have been estimated at $93 billion annually.

Roadway safety is a huge public health crisis! The sad part is that, according to

the U.S. DOT, approximately 15,000 of these annual deaths are in crashes in which

substandard roadway conditions, obsolete designs or roadside hazards are a factor.

These are accidents that we can prevent through improved transportation infrastructure. According to FHWA, for every $100 million we spend on highway safety

improvements, we can save over 145 lives over a 10-year period.

Updating and improving the NEPA Process

The area of the NEPA process which would yield the greatest reduction in project

delay is frivolous and malicious litigation which subverts the NEPA process. This

is not to say that all NEPA litigation needs to be curbed, or that NEPA litigation,

as a whole, is a hindrance on the process. When used properly, litigation resolves

disputes arising from the NEPA process that cannot be dealt with through any

other method. However, when abused, NEPA litigation allows a small minority of

individuals to hijack the NEPA process in an attempt to perpetually delay projects

simply for the sake of delaying them.

This strategy of ‘‘delay for the sake of delay’’ has been described in numerous outlets by plaintiffs in NEPA litigation. One of the more graphic examples of this mentality is evident in the following 1999 quote from Jay Kardan, Conservation Chairman of the Virginia Chapter of the Sierra Club regarding opposition to highway

projects:

‘‘Facts and reason are much less important than the amount of noise you

can make...Officials who support [highway projects] should be mercilessly

abused, shamed, ridiculed and otherwise made to suffer pain...The objective

should be to cleave a division through the community so painful that people

will remember it for decades afterward.’’

The same mindset was echoed by Roy Kienitz in his aforementioned Senate testimony:

‘‘In the struggle between proponents and opponents of a...[highway] project,

the best an opponent can hope for is to delay things until the proponents

change their minds or tire of the fight.’’

Also, a ‘‘Grassroots Litigation’’ training manual prepared by the Community Environmental Legal Defense Fund states:

‘‘In an area devoid of endangered species, impacts to waterways and

floodplains, or of federal funding, NEPA may be the only tool that grassroots groups have [to fight highway projects].’’

This approach to NEPA litigation undermines the entire process. It advocates

using NEPA litigation when no legitimate environmental issues exist to be debated.

Instead of allowing communities to make informed decisions, their power is usurped

by small groups of well-funded project opponents. Worse yet, these project opponents

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are often based out of state and not part of the communities they purport to represent.

This type of NEPA litigation was recently illustrated in litigation involving a highway widening project on U.S. 95 in Las Vegas, Nevada. As a result of a lawsuit

filed years after the final EIS for the project was completed, ongoing construction

of the project was completely halted for almost one year. During that time, air quality and public safety improvements were delayed in the affected communities, the

cost of project materials rose by millions of dollars, work plans were disrupted, and

employees were out of jobs temporarily, and in some cases, permanently. Using the Las Vegas case as an illustrative example, U.S. 95 is the primary north-south travel corridor in the northwest region of Las Vegas. By 1995, the corridor was operating at near capacity during peak periods and experiencing heavy

congestion during certain times of the day due to the aforementioned population

growth and the resulting demand for highway travel. According the FHWA travel

and demand modeling and anticipated continuation of past growth trends, these

conditions are projected to worsen, with U.S. 95 operating at 50 to 75 percent above

capacity by 2020. FHWA data shows the segment of U.S. 95 that was at issue in this case services some of the fastest growing neighborhoods in Las Vegas. An estimated 190,000 vehicles travel through the portion of U.S. 95 to be widened each day, with peak hour

traffic reaching as high as 11,900 vehicles. Currently, traffic congestion slows commuters to one-half of the 55 mile per hour speed limit on the corridor. Also, between

2000 and 2002 there were 3,535 motor vehicle crashes on one section of U.S. 95 that

was scheduled for improvement.

As a result of these factors, a Major Investment Study (MIS) was begun in 1995

to provide a detailed evaluation of alternative strategies to address the deteriorating

conditions of the area served by U.S. 95. One of the key improvements recommended by the MIS was to widen key portions of U.S. 95 from six to ten lanes.

The NEPA process began shortly after the MIS was completed in 1997. A final Environmental Impact Statement (FEIS) was issued in 1999 with a Record of Decision

(ROD) issued in 2000. Two years later, the Sierra Club filed suit in federal district

court under NEPA claiming that an epidemiologic study not conducted in the Las

Vegas area (rather, it was conducted in Las Angeles) was enough to re-open the

NEPA process and warrant a supplemental Environmental Impact Statement. At

this point construction had already started on significant portions of the U.S. 95 improvement project. Though the Sierra Club’s complaint was dismissed at the district

level, the United States Court of Appeals for the Ninth Circuit accepted the Sierra

Club’s appeal of the decision and issued an injunction halting construction, four

years after construction was already underway, while litigation continued until a

settlement was reached in late June of 2005.

NEPA Litigation Places Environmental Benefits at Risk

The improvements that make up the U.S. 95 widening project are needed in order

to keep pace with the rapid population growth currently being experienced in the

Las Vegas area and prevent the effects of traffic congestion from worsening. The

widening of U.S. 95, once completed, will lead to enormous environmental, public

health and safety benefits. Once finished, improvement of U.S. 95 will result in a

significant reduction in so-called ‘‘greenhouse gasses.’’

Specifically, according to a study by Cambridge Systematics, Inc., there will be a

58.8 ton reduction in carbon monoxide emissions, a 54.3 ton reduction in volatile

organic compounds (VOCs) and an 87.8 ton reduction in carbon dioxide emissions

between now and the year 2025. Further, it is estimated that within that time span

there will also be an 87.8 percent reduction in motor fuel usage by U.S. 95 commuters, which translates to 231,654,731 gallons of motor fuel saved (or 68.9 gallons

per commuter over the life of the project). Also, the time Las Vegas commuters

spend stuck in traffic will decrease by an average of 86.5 percent, which for commuters who use U.S. 95 twice per day, would mean 30 minutes of time saved per

day while going through the area to be improved. Finally, the U.S. 95 improvements

are projected to result in 3,524 fewer total motor vehicle crashes, 14 fewer fatalities,

and 1,730 fewer injuries to commuters through 2025. This will undoubtedly lead to

reductions in both health care costs and insurance rates for Las Vegas area residents (in addition to the emotional benefits of not having to deal with a friend or

relative that has been in an automobile accident).

The EPA reported in September 2004 ‘‘between 1970 and 2003, that gross domestic product increased 176 percent, vehicle miles traveled increased 155 percent,

energy consumption increased 45 percent, and U.S. population grew by 39 percent.

During the same time period, total emissions of the six principal air pollutants (nitrogen dioxide, ozone, sulfur dioxide, particulate matter, carbon monoxide and lead)

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dropped by 51 percent.’’ The finding by the EPA that these pollutant levels have

decreased despite increased travel and an increased population demonstrates there

is little connection between any increased travel which would occur on U.S. 95 as

a result of the widening project and a subsequent increase in pollutant levels, despite Sierra Club arguments to the contrary. There are two primary reasons for these decreased pollutant levels. First, motor vehicle emission levels change with vehicle speed. Once vehicles reach a speed

greater than 15 miles per hour, DOT data shows that both volatile organic compound (VOC) and carbon monoxide emissions decline dramatically. The congestion

currently experienced on U.S. 95 causes vehicles to either remain at lower speeds

or have to stop and start repeatedly during a commute. The United States Department of Transportation has acknowledged this, stating ‘‘[e]mission rates are higher

during stop-and-go, congested traffic conditions than free flow conditions operating

at the same speed.’’ By widening U.S. 95, commuters will be able to travel at a level

where emissions of key pollutants will be greatly reduced. Second, pollutant levels

continue to decline as cleaner and more fuel efficient vehicles make up a greater

percent of the nation’s motor vehicle fleet. According to the U.S. DOT, today’s average motor vehicle produces 80 to 90 percent less pollution than it did in 1967. As

technology develops even further, vehicle emissions will continue to go down as

automobile usage increases. A recent study by the Texas Transportation Institute at Texas A&M University

concluded ‘‘congestion has grown everywhere in areas of all sizes. Congestion occurs

during longer portions of the day and delays more travelers and goods than ever

before.’’ Recent estimates show that congestion on the nation’s highways causes 3.5

billion hours of delay, 5.7 billion gallons of wasted fuel, and results in an overall

cost to the U.S. economy of $63.2 billion. Since 1982 the amount of free flowing traffic within the United States has decreased by over 50 percent. These delays caused

by traffic congestion affect not only commuters, but also first responders—such as

police, firefighters, ambulances, and other services—vital to Las Vegas and all communities in the United States. Taking this level of congestion and gridlock into account, it is important that new highway projects and capacity improvements are allowed to proceed without unnecessary delay.

It should also be noted that the costs of delay associated with this and other

NEPA-related litigation are borne primarily by United States taxpayers. In the U.S.

95 case, the projects being delayed by the Sierra Club’s lawsuit comprise roughly

$85 million worth of work at the time the injunction to halt construction was granted (in August of 2004). The longer these projects are delayed, the more expensive

the materials needed to complete those projects become. According to the FHWA,

construction materials represented approximately 45 percent of total costs for federal-aid highway construction contracts over $1 million on the national highway system in 2003. In the case of the U.S. 95 project, this means an estimated $38.25 million worth of construction materials were involved when construction was halted.

Since then, the Producer Price Index (published by the Bureau of Labor Statistics)

for highway and street construction has risen eight percent. Thus, equipment costs

associated with the U.S. 95 project are estimated to have risen approximately

$3,060,000 during the time of the injunction. That means taxpayers could pay more

than an additional $3 million as a result of the delays caused by this NEPA-related

litigation.

What does Frivolous Litigation Illustrate about the NEPA Process?

The U.S. 95 situation, unfortunately, is only one of the latest examples in what

has become a myriad of NEPA litigation. There are currently in excess of 1,500

cases which ‘‘define’’ NEPA. Another such example can be found in Utah where the

Legacy Highway project has been delayed for over five years at a cost of nearly $1.5

billion. During this time, as with U.S. 95 in Nevada, air quality has worsened, commutes have become longer, and transportation-related public health and safety has

declined.

NEPA has been transformed from a vehicle which once helped to mitigate the environmental impacts of development to a tool which enables special interest antigrowth groups to delay needed and environmentally beneficial transportation infrastructure through the use of unending litigation.

In the U.S. 95 situation, the project in question had already gone through extensive environmental review and complied with NEPA’s requirements. However, a single epidemiologic study discovered by U.S. 95 project opponents nearly two years

after the fact was enough to completely halt construction while litigation was underway. This is unacceptable for a number of reasons. First and foremost, the government had, as part of the NEPA process, reviewed thousands of studies and other

voluminous evidence of the environmental effects of the U.S. 95 project. Second, the

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NEPA process has to have an end point. Transportation planners, project officials,

and state and local government need some point of finality in the NEPA process in

order to provide enough certainty to allow the project to be planned effectively. The

NEPA process, as illustrated in the U.S. 95 case, is far too easy to ‘‘re-open’’ and

cause unnecessary delay to transportation projects. After a project has completed its

NEPA requirements, the process should not be re-opened except in extreme circumstances which truly warrant such action. This brings me to another flaw in the NEPA process. It does not consider the en- vironmental benefits of fully completed projects. NEPA should not only be limited

to the consideration of environmental impacts, but expanded to include environmental benefits. As I previously mentioned, the U.S. 95 project, once completed will

yield significant reductions in mobile source emissions as well as reductions in traffic congestion and fuel use. This needs to be given proper weight and consideration

by the NEPA process. Also, the NEPA process needs to consider the environmental impact of not undertaking federal highway transportation projects. In the U.S. 95 case, part of the

NEPA consideration should be the environmental consequences of continued congestion along the U.S. 95 Las Vegas corridor. As previously stated, vehicles stuck in

congestion yield significantly greater emissions than vehicles in free-flowing traffic. The litigation of the U.S. 95 project demonstrated that when court battles do arise over NEPA, many important issues often go unaddressed. When the federal government responds to NEPA claims, it is constrained to only addressing the statutory

legal points raised by whichever group is challenging a project. Greater issues such

as the project’s environmental benefits or the potential effects of project delay on

other highway projects and the nation’s infrastructure as a whole are not

considered—providing, at best, a lopsided perspective on environmental impacts.

Had ARTBA not submitted a ‘‘friend of the court’’ brief in the U.S. 95 case, the

project’s environmental and public health benefits would have gone completely

unaddressed in appellate litigation. Also, ARTBA was the only party to raise the

question of what effect delaying the U.S. 95 project would have on the nation’s highway system as a whole. Both of these issues can and should have been considered

by the main parties in the U.S. 95 litigation, rather than having ARTBA raise them

as a non-party.

NEPA should not operate in a vacuum in this way. When the environmental impacts of a project are considered, its benefits must be considered as well. Also, the

term ‘‘environment’’ cannot be narrowly defined as the impact on the air quality of

a region without also considering appropriate public health concerns. These concerns, which all factor into the state of an area’s environment, should include other

consideration such as traffic congestion. Also, related public heath issues, such as

the stress caused by lengthy commutes and traffic impact on first-responders,

should be part of any analysis.

ARTBA’s Recommendations for Changing the NEPA Process

As you can see, Madame Chairwoman, the NEPA process is in need of fine-tuning.

For over a decade, reform to the environmental review process has been a top

ARTBA priority. Indeed, ARTBA is extremely appreciative of the formation of this

task force and its goal of taking a hard look at NEPA and its effects on local environments and economies.

The goal of these efforts is not—as some have suggested—to undermine the environmental review process. Rather, it is to coordinate the process in order to more

effectively deal with the transportation needs and congestion issues facing the nation. If handled appropriately, improving the delivery of transportation projects

would increase the efficiency of the transportation network, and ensure the traveling public receives the full benefit of the user fee-financed transportation system.

We are not seeking changes that are outcome determinative; we are seeking process

improvements that would generate quality decisions in a more timely manner.

Particular changes to the NEPA process ARTBA recommends are:

• A set time limit on project related NEPA lawsuits. The recently enacted ‘‘Safe,

Accountable, Flexible and Efficient Transportation Equity Act—A Legacy for

Users’’ includes a provision setting a 180-day time limit for lawsuits involving

highway projects.

• Consideration of the environmental benefits of proposed projects as opposed to

just their impacts. Also, the environmental consequences of not undertaking a

project should also be considered.

• NEPA litigation should be limited to only those issues that have been fully

raised and discussed during the public comment period for a project. This will

help insure that litigation over projects is a last resort, rather than a first stop

for opponents of a project.

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• Establishment of a dispute resolution process as part of NEPA. This would further ensure that only those issues which are truly not resolvable proceed to litigation. • In compliance with President Bush’s executive order on environmental streamlining, the NEPA review process must be shortened and coordinated among the

various federal agencies that take part in it. • Where possible, duplicative review and analysis should be eliminated. Studies

done as part of the transportation planning process should be acceptable in the

NEPA review process and vice-versa, as proposed by the Bush Administration. Once again, Madame Chairwoman, ARTBA thanks you not only for the oppor- tunity to participate in this hearing, but also for the establishment and work of this

task force. I would be happy to answer any questions you or the other members may

have.

Response to questions submitted for the record by Nick Goldstein, Staff Attorney, American Road and Transportation Builders Association

1. You cite a number of environmental benefits that are jeopardized by NEPA litiga- tion. It seems as though the ‘‘impact’’ are the only focus when an agency reviews

a proposed project. Shouldn’t the benefits of that proposed project be given equal

weight?

Certainly. The NEPA process should be updated so that it considers the environ- mental and public health benefits of a project as well as the potentially problematic

impacts. Such an approach would provide a more complete and honest discussion

of the project involved and help ensure regulators are making balanced decisions.

For example, in the case of the U.S. 95 project, as documented in my written testimony, the following benefits are anticipated upon the project’s completion through

the year 2025: • a 58.8 ton reduction in carbon monoxide emissions;

• a 54.3 ton reduction in volatile organic compounds (VOCs);

• an 87.8 ton reduction in carbon dioxide emissions;

• U.S. 95 commuters will use 87.8 percent less motor fuel over 25 years than they

would under a ‘‘no build’’ option, which translates to 231,654,731 gallons of

motor fuel saved (or 68.9 gallons per commuter);

• Las Vegas U.S. 95 commuters will spend 86 percent less time stuck in traffic

about 30 minutes saved for the twice a day commute through the area to be

improved;

• 3,524 fewer total motor vehicle crashes;

• 1,730 fewer injuries to commuters; and most importantly;

• 14 fewer fatalities.

Under existing NEPA requirements, these clear enhancements to the natural environment, health, safety and quality of life of Nevadans are not considered. To ensure a comprehensive NEPA process, the benefits of transportation improvement

projects should be given equal consideration when the environmental impacts are

discussed during the EIS process.

Also, the environmental impact of not going forward with a proposed project

should be discussed as well. With U.S. 95, this would mean weighing the effects of

continuing the present state of congestion, and the resulting environmental and

public health harms. To put this into perspective, in the case of U.S. 95, residents

of Las Vegas are struggling to keep up with a city that has experienced some of

the fastest recent population growth anywhere in the United States. Between 1970

and 1996, the Las Vegas population has grown over 300 percent.

The section of U.S. 95 to be widened is in one of the most congested areas of Las

Vegas, if not the entire country. If nothing is done, U.S. 95 will be operating at 50

to 75 percent above its original design capacity by 2020. An estimated 190,000 vehicles travel through the portion of U.S. 95 to be widened each day, with peak hour

traffic reaching as high as 11,900 vehicles. Currently, traffic congestion slows commuters to one-half of the 55 mile per hour speed limit on the corridor. Studies have

shown that motor vehicles traveling at speeds under 55 miles per hour produce

greater levels of vehicle emissions. As such, not proceeding with the project would

lead to dramatically increased motor emissions, Also, between 2000 and 2002 there

were 3,535 motor vehicle crashes on one section of U.S. 95. According to the Texas

Transportation Institute’s 2005 Urban Mobility Report, in the year 2002 alone, traffic congestion cost Las Vegas area residents and businesses $380 million and resulted in the additional consumption of 14 million gallons of motor fuel. All of these

factors need to be considered in the NEPA process as a consequence of not going

forward with the U.S. 95 project.

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Finally, a step which would help discussions of projects reviewed under NEPA to

be more complete would be to guarantee a ‘‘spot at the table’’ for non-public agency

project proponents as well as project opponents. This should apply to litigation as

well, where non-public agency project proponents should be granted legal standing

in the same manner as organizations which oppose projects. A major reason that

NEPA discussions center mainly on impacts is that those in favor of proposed

projects, be they community members or developers, are often not allowed to participate once a proposal is challenged. This should be changed to make discussions

more complete.

The goal of NEPA has always been to enable communities to make informed decisions regarding public projects. It is important to note that the ‘‘public interest’’ is

not just served by groups who self-proclaim themselves as its guardian. It is also

served by allowing the many others in the affected community who look to transportation improvements as an essential component of their public health and quality

of life to be heard. By providing the public with all sides of the debate, instead of

limiting discussion to one side of an issue, NEPA will be better equipped to meet

this goal.

Miss MCMORRIS. Mr. Harwood.

STATEMENT OF ALAN HARWOOD, EDAW, INC.

Mr. HARWOOD. Madam Chair, members of the Task Force thank

you for the invitation to appear in today’s hearing.

The firm that I represent, EDAW, Incorporated, is a leading environmental consulting firm. We pioneered the blending of environmental planning and sustainable development three decades before

environmental considerings were mandated under NEPA. Our collective body of work has included literally hundreds of NEPA

projects for nearly every Federal agency.

My testimony here today reflects more than 20 years of experience as a NEPA practitioner and the collective input of my partners across the country.

Let me start by offering just a couple of observations about the

NEPA process.

The presence of NEPA has had a profound and positive effect on

the Nation’s natural and built environment. When implemented

correctly, the formalized nature of the NEPA process establishes a

standard framework for sound decisionmaking. But NEPA is not

perfect. It sometimes suffers from the three Cs. It can be costly,

cumbersome and confusing.

And it is my understanding that we are here today as a congressional effort to update and improve NEPA as a policy tool, but not

eliminate it. Similarly, NEPA requirements should be used to improve projects but not stop them. In both cases, the proper balance

is usually best achieved in the practical middle ground rather than

either extreme.

It is from this balanced perspective that I offer seven suggestions

for improving NEPA. First, the threat of litigation under NEPA is

entirely too pervasive. Judicial review should not be the primary

mechanism for ensuring NEPA compliance. So to minimize legal

maneuvering, CEQ, as an independent agency with NEPA expertise, should be empowered to resolve most NEPA disputes administratively prior to court action and a time limit for filing litigation

should be established, much as it is done in California.

Second, environmental considerations must never be ignored and

should be a central factor to help select project alternatives. But

the mandate to fully evaluate alternatives should be relaxed in

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certain cases, subject to oversight by CEQ to allow for a reduced

level of alternatives analysis, particularly when a given alternative

fails to meet the stated purpose and need.

Third, the range of environmental considerations should be comprehensive and holistic. The NEPA should focus on fundamental

environmental issues as defined by CEQ and should not be used a

substitute for a design review process or other process that is

under another law.

Fourth, public notification and public review are integral components of NEPA and must be protected. If guidelines established by

CEQ are met, the provisions for certain process milestones, including required notification and review periods could be streamlined

to increase agency flexibility and improve efficiency.

Fifth, one of the most useful outcomes of the NEPA process is the

identification and development of mitigation measures. Unfortunately, implementation of recommended mitigation measures is

voluntary. There should be formal enforcement measures and ongoing compliance oversight under CEQ’s purview to ensure agency

implementation of specified mitigation commitments that are integral to the environmental approval process.

Sixth, the qualifying requirements for categoric exclusions vary

widely among different agencies. In coordination with CEQ, the exemptions available for proposed actions under categorical exclusion

guidelines should be clarified and made more consistent and documentation is required for—should be reduced for categoric excluded

projects.

And finally, the decentralization of NEPA works well under

many circumstances, but depends greatly on the NEPA expertise of

individual Federal agencies and often individual Federal employees.

It is our opinion that CEQ should be strengthened, expanded,

and funded as an integral independent agency with clear authority

to simplify and streamline environmental procedures, provide implementation guidance and oversight, coordinate NEPA training

and serve as administrative arbiter or mediator of NEPA issues

and disputes so that the threat of judicial involvement is greatly

minimized.

In closing, NEPA’s original purpose to ensure the consideration

of environmental values in Federal actions continues to be a noble

and worthy goal. No changes that would diminish the law should

be contemplated. However, there are several procedures and process requirements that should be refined and streamlined to provide

efficiency, clarity, and cost effectiveness. Such modifications would

reflect the Nation’s environmental maturation over the last 35

years.

There is now broad support for environmental quality. And there

have been many environmental protection successes over the last

three decades that have made our great Nation and the world a

better place to live and a better legacy for future generations.

We have learned that it is far less costly to plan with environmental considerations than to repair our damaged air, water and

land. We should not be distracted by the self-serving arguments of

narrow special interests. The fundamental issues is not the battle

between environmental protection and economic development. It is

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the inherent conflict between long-term and short-term decisionmaking. A longer, broader perspective realizes that what is good

for the environment is also good for the economy, and by definition,

good for people.

Thank you for the opportunity to testify. I welcome any questions.

[The prepared statement of Mr. Harwood follows:]

Statement of Alan Harwood, Principal and Vice President,

EDAW, Inc.

Introduction

Madame Chairwoman and Members of the Task Force, thank you for the invitation to participate in today’s hearing. It is a privilege and an honor to appear before

this esteemed panel to address this most important issue. I appreciate the opportunity to discuss ways to update and improve the National Environmental Policy

Act (NEPA).

The firm I represent, EDAW, Inc., is a leading environmental consulting firm. Our

name comes from the initials of the four founding partners who began a legacy of

environmental planning and sustainable development 30 years before environmental

considerations were mandated under NEPA. Today, more than 35 years after

NEPA, my firm continues to seek the appropriate balance between development and

conservation, or to state it more broadly, we continue to balance the interests of

man and nature.

Since the inception of NEPA, we have been involved in projects across the country, including the Pacific Northwest, the Rocky Mountains, the Mississippi River,

the Gulf Coast, the Florida Everglades, and, of course, here in our Nation’s Capital.

We have worked on new federal facilities and historic buildings with the General

Services Administration, land exchange agreements and open space enhancements

with the National Park Service, proposed riverboat casinos and waterfront development with the Army Corps of Engineers, water supply infrastructure with the Bureau of Land Management, target ranges and installation improvements with the

Department of Defense, restoration projects for the Federal Emergency Management

Agency, and many perimeter security projects in coordination with the Department

of Homeland Security. Our current environmental projects include the Martin Luther King Memorial, the Denver Federal Center, a flood control levee in California,

the Pentagon master plan, and a baseball stadium for the Washington Nationals.

My testimony reflects more than 20 years of experience evaluating, identifying

and mitigating impacts for scores of proposed actions as a NEPA practitioner. Overwhelmingly, my specific environmental analysis work has involved land development projects. Land development projects, including federal buildings or private facilities seeking regulatory approvals, are different than other federal actions relating to national programs, mineral extraction, or resource management. Land development typically occurs in high-profile urban locations and usually is politically

charged with extensive public scrutiny and controversy. This background has led me

to the following observations about the NEPA process.

Observations on NEPA

It has been several decades since the NEPA legislation was drafted and many

years since the 40 Most Frequently Asked Questions were circulated by the Council

on Environmental Quality (CEQ). Since that time, current practices and agency and

public expectations have greatly evolved. For some agencies, case law now provides

seemingly more guidance than the original legislation and implementing guidelines.

Therefore, in my opinion, it is apparent that this current review and update of

NEPA is warranted and overdue. Based on my experience, I offer the following observations about NEPA:

1. The ‘‘presence’’ of NEPA has had a profound and positive effect on the nation’s

natural and built environment. This is because the worst ideas, the most egregious projects, never see the light of day as formal proposals, and questionable

projects are heavily screened, reviewed, and subject to public scrutiny. There

is now widespread acknowledgment that environmental considerations play a

significant role in the acceptance of a project.

2. When implemented correctly, the formalized nature of the NEPA process establishes a standard framework for sound decision-making. Several features of the

legislation are particularly noteworthy:

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a. NEPA’s documentation requirement facilitates clarity of purpose and helps define proposals. Even a simple written description of a proposed

project improves communication and provides a common understanding

of a project and potential issues. b. NEPA’s public involvement procedures ensure input from affected communities. Public engagement can help identify potential issues, convey

shared or conflicting concerns, explain likely outcomes, and communicate recommended actions.

c. The thorough analysis of potential consequences can help resolve tech- nical questions. Accurate definition of potential impacts can help determine appropriate and creative mitigation measures to improve a project

and benefit the public by avoiding, reducing, or offsetting identified impacts.

3. NEPA is not perfect. It sometimes suffers from the three C’s: Cumbersome,

Confusing, and Costly. 4. The NEPA process draws out project opponents rather than supporters. Scoping meetings and public review hearings tend to encourage opposition to

a project—usually from the general public but sometimes from a variety of special interests. Hearing adverse reactions to projects is useful, but so are positive responses.

Suggestions for NEPA

My observations for the Task Force are borne from my experience as a NEPA

practitioner and shaped by the unique challenges inherent in land use planning and

development. My suggestions to the Task Force are also based on my professional

expertise and the collective input of my EDAW partners across the country.

It is my understanding that we are here today as part of a Congressional effort

to update and improve NEPA as a policy tool—but not eliminate it. Similarly, NEPA

requirements should be used to improve projects—but not stop them. In both cases,

the proper balance is usually best achieved in the practical middle ground rather

than either extreme.

It is from this balanced perspective that I offer seven suggestions for improving

NEPA:

1. The threat of litigation under NEPA is entirely too pervasive. Too often the

NEPA process is used as a threat by community groups to fight or block

projects they don’t like—even if there is widespread but less vocal support for

the project. Public outcry should be eliminated as a determinant for a decision

on whether an EA or an EIS is the appropriate vehicle for NEPA compliance,

and judicial review should not be the primary mechanism for ensuring NEPA

compliance. To minimize legal maneuvering, CEQ, as an independent agency

with NEPA expertise, should be empowered to resolve most NEPA disputes administratively prior to court action, and a time limit for filing litigation should

be established.

2. Environmental considerations must never be ignored and should be essential

factors to help select project alternatives, including alternative programs or

sites. But NEPA should not force the equal inclusion of alternatives throughout

the analysis process regardless of feasibility. Allowing a build/no build format

would be preferable to analyzing an alternative location for a private-sector

project that will not proceed if the preferred alternative is not approved. The

mandate to fully evaluate alternatives should be relaxed in certain cases, subject to oversight by CEQ, to allow for a reduced level of alternatives analysis,

particularly when a given alternative fails to meet the stated purpose and

need.

A major public facility was proposed for a site extending from the edge of

downtown into an historic minority community. NEPA required the full analysis of an alternative location, which project opponents quickly adopted and rallied around. The result was misleading to residents and confusing for elected

officials. An EIS should not become a vehicle for giving the public false hope.

3. The range of environmental considerations should be comprehensive and holistic. A hard look at a wide variety of natural and man-made environmental

issues is integral to NEPA. Subjective resources such as visual quality should

be evaluated objectively through features such as height, density, and mass

rather than window treatments, balconies, or material colors. NEPA should

focus on fundamental environmental issues, as defined by CEQ, and should not

be used as a substitute for a design review process.

A prominent memorial has been proposed for a site on the National Mall.

Some review agencies, while supporting the concept and basic components, have

taken issue with some of the design details. NEPA requires an evaluation of

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alternatives, yet an EA should focus on environmental considerations and

should not be used to debate aesthetic preferences.

4. Public notification and public review are integral components of NEPA and

must be protected. However, for many relatively simple public projects, the

mandatory timeframes under NEPA can conflict with the existing approval

processes of other agencies, disrupt project schedules, and cause unnecessary

delays. If guidelines established by CEQ are met, the provisions for certain

process milestones, including required notification and review periods, should

be streamlined to increase agency flexibility and improve efficiency.

5. One of the most useful outcomes of the NEPA process is the identification and

development of recommended mitigation measures. Project modifications, features, or even off-site benefits that avoid, minimize, or compensate for identified environmental impacts can be practical, cost-effective solutions to challenging issues. Unfortunately, implementation of recommended mitigation

measures is voluntary. There should be formal enforcement measures and ongoing compliance oversight under CEQ’s purview to ensure agency implementation of specified mitigation commitments that are integral to the environmental approval process.

A federal headquarters building was planned adjacent to a sensitive natural

area. The stream and steep slopes with mature trees was identified as a resource protection area and became the centerpiece of the building design (and

helping the design win several awards). For reasons that are not entirely clear,

during construction the trees were removed and the stream was stabilized with

rip-rap rather than preserved. The NEPA process should not be used to secure

project approval without commitments to fundamental mitigation measures.

6. The qualification requirements for Categorical Exclusions vary widely among

different federal agencies. In some cases, renovated buildings get more scrutiny

than new construction. In coordination with CEQ, the exemptions available for

proposed actions under Categorical Exclusion guidelines should be clarified and

made more consistent, and documentation requirements should be reduced for

categorically excluded projects.

7. The decentralization of NEPA works well under many circumstances but depends greatly on the NEPA expertise of individual federal agencies and, often,

individual federal employees. To overcome the variable quality of NEPA awareness and practice in different federal agencies, a central organization with the

authority to provide clarification and resolve differences of opinions relating to

NEPA is needed. The CEQ should be strengthened, expanded, and funded as

an integral, independent agency with the clear authority to simplify and

streamline environmental procedures, provide implementation guidance and

oversight, coordinate NEPA training, and serve as administrative arbiters of

NEPA issues and disputes so that the threat of judicial involvement is greatly

minimized.

Summary

In closing, NEPA’s original purpose to ensure the consideration of environmental

values in federal actions continues to be a noble and worthy goal, and one that is

generally implemented. No changes that would diminish the law should be contemplated. However, there are several procedures and process requirements that

should be refined and streamlined to provide efficiency, clarity, and cost-effectiveness.

Such modifications would reflect the nation’s environmental maturation over the

last 35 years. There is now broad acceptance of environmental quality as a worthwhile pursuit for local and national governments. Many environmental protection

successes that have occurred during the last three decades have made our great nation and the world a better place to live and a better legacy for future generations.

By improving and strengthening NEPA, we can ensure that these benefits will continue. We have learned that it is far less costly to plan with environmental considerations, than to repair our damaged air, water, and land.

We should not be distracted by the self-serving arguments of narrow special interests. The fundamental issue is not the battle between environmental protection and

economic development; it is the inherent conflict between long-term and short-term

decision-making. A longer, broader perspective realizes that what is good for the environment is also good for the economy—and by definition, good for people.

Thank you for the opportunity to testify. I will be glad to respond to questions.

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STATEMENT OF JOHN MARTIN, PATTON BOGGS LLP

Mr. MARTIN. Thank you, Madam Chairwoman. First I would like to thank the Task Force and all of the staff people who have

worked so hard at this effort. And I would like to, if I may, echo

one of the themes I think you see from literally all of the witnesses

that are appearing today and all the witnesses that I am aware of

that have appeared before the Task Force before.

And that is that we all embrace the policies that underlie NEPA,

the original policies, notably two policies: first, public participation;

and second, conveying information on environmental consequences

before a Federal decisionmaker actually makes that decision. Those are policies that I embrace—my client, Devon Energy Cor- poration, embraces. And I have to say that those folks that I have

represented over the course of 25 years of environmental litigation

embrace those policies as well.

I am inclined to believe that NEPA, like any 30-year-old statute, is a statute that can be improved. It is not perfect. It is something

that I think we can in fact improve upon. Before I get into some

of the details, some of the suggestions that I have made, I would

like to, if I may, just talk briefly about context. I represent oil and

gas companies, many oil and gas companies who are involved now

in development of natural gas resources through Federal leases in

the western United States.

In the ordinary course what we see is 2 levels of NEPA review:

First, we see a broad-based programmatic EIS. This is a lengthy document. And no, it is not a document that was the sort of document that was originally projected when the statute was passed or

when the regulations were promulgated in the 1970s. Back then,

people were talking about in the regulations an EIS of perhaps 150

pages, a maximum of 300 pages. That is not what is happening

today.

The EISs with which I am most familiar are multiple thousands

of pages. One that I am familiar with is four volumes. The administrative record comprises 100,000 pages.

The duration for this, again, is not what we originally thought.

Back in the 1970s, CEQ was projecting that the duration to conduct an EIS was approximately 12 months in a most complex EIS.

These days we are talking about an average of between 24 and 36

months for the EISs with which I am familiar.

So ladies and gentlemen, the first level of NEPA review that we

are dealing with as a general proposition is an EIS that is programmatic in nature. It is multiple thousands of pages. It has appendices. It takes a long duration. In fact, it is expensive. We expend a lot of resources on it.

The second level is for individual projects. There, in the ordinary

course, what we do is we tier an environmental assessment to that

EIS. The environmental assessment is not that 10-page document

that was originally projected in the CEQ regulations. No. In most

instances, it is much longer. An EA I am familiar with that just

came out in this industry a few months ago was 150 pages in

length and consumed over 6 months’ time to create.

So you can see that this is a much more involved process, I

think, than what we originally anticipated when this statute was

passed. And I do believe that there are things that we can do to

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strengthen the process to make it a simpler, more effective process,

one that decisionmakers will be able to make greater use of. First, in terms of alternatives analysis. I think it would be useful if we could clarify to agencies that they have the clear ability to

define and limit the number of alternatives that are analyzed. Right now in the CEQ regulations and, frankly, in the case law, there is the suggestion that agencies need to go outside that own

jurisdiction and consider alternatives that perhaps the agencies

recognized are not at all useful and ones they would never pursue. Second, in the vein of augmenting the public participation at a point in time when it is most effective, I would recommend that we

require exhaustion of administrative remedies. The point is that if

someone objects to what the agency is doing, properly, that person,

should invest herself in the process early and tell the agency, ‘‘I

want you to consider this, I want you to evaluate that, I want you

to engage in this process,’’ at a point in time when the agency can

actually respond and include it in the EIS or the EA.

Third, the statute of limitations. To echo Mr. Goldstein’s concern,

I would like to see a 180-day statute of limitations generally. This

is not an abstract concern for me. Our clients invest literally millions of dollars in plans of development. And what happens under

the current regime is they have to concern themselves with the

challenge that may occur as long as 6 years after the particular decision is made. And in some instances, it is after the company has

invested many millions of dollars in the lease, in the development

of that prospect. That is inappropriate. And I don’t think it is unfair to ask that folks challenge it within a reasonable period of

time.

Fourth, I think it ought to be clear that the proponents of particular projects should have the right to intervene and should clearly have standing. As it turns out under the current regime, particularly in the Ninth Circuit, it is not clear that we with economic interests—the proponents of the particular program—have standing

or the capacity to intervene.

And if I might summarize. And then finally I would ask that

remedies be clarified so that judges have greater direction in terms

of what they proscribe by way of remedies and litigation. Thanks

again for the opportunity to testify.

Miss MCMORRIS. Thank you very much.

[The prepared statement of Mr. Martin follows:]

Statement of John C. Martin, Patton Boggs LLP

My name is John Martin, and I am an attorney who has worked in the field of

environmental litigation for more than 25 years. Over the years, I have represented

clients on many matters involving the National Environmental Policy Act (NEPA),

and have published and taught on NEPA issues. I currently represent a number of

companies whose ability to undertake energy projects has been delayed or thwarted

by the application of NEPA. I would like to take this opportunity to share my

thoughts on NEPA, and how revisions to the legislation could decrease uncertainty

associated with the NEPA process, while preserving the statute’s capacity to inform

decision-makers of environmental issues before permanent commitments of resources are made. While many of my comments reflect concerns raised by my clients

in energy-related fields, the issues raised here are equally relevant to NEPA’s application in other contexts.

NEPA was intended to further the laudable goal that agencies take into consideration the anticipated environmental impacts of their actions before making

decisions. In addition, the public was to be given the opportunity to provide their

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1 42 U.S.C. § 4332(C)(iii).

2 40 C.F.R. § 1502.14.

3 40 C.F.R. § 1502.14(c), (d).

4 40 C.F.R. § 1502.13.

comments on the environmental impacts associated with particular projects. Our clients support these policies: we believe government decision-makers should be informed of environmental impacts associated with their choices and that the public

should be informed of, and permitted to comment on, those impacts as well.

Unfortunately, over the years, ambiguities and gaps in the initial NEPA statute,

inconsistencies in case law, and incomplete and confusing agency regulations have

produced the unintended consequences that now overshadow NEPA’s original goals.

For many, NEPA has come to mean years of delay and uncertainty as well as the

imposition of huge costs on the government and private parties to no effective end.

Rather than focusing on efforts tailored to best address realistic environmental concerns, government agencies are spending vast amounts of time and money to attempt to anticipate and respond in advance to every conceivable litigation attack a

potential plaintiff might make. In many instances, public funds that should be going

toward fulfilling substantive agency mandates are instead going toward

bulletproofing EISs and defending lawsuits. Instead of processing permits, agencies

work on litigation strategies. Instead of taking actions that protect the environment,

agencies engage in ‘‘paralysis through analysis.’’

Once litigation sets in, projects can become mired in such lengthy disputes that

they are no longer viable. Even before that happens, the huge uncertainties surrounding the Government’s response, the vagaries of litigation and the timing of a

final answer, mean that it may simply be infeasible to direct resources to a project

where NEPA is involved. All of this creates an artificial and inefficient allocation

of resources, with large amounts of time and money going to litigation expenses and

to the study of the potential environmental impacts of paths that will never be

taken.

In addition, of course, the uncertainty and the inordinate delays created by NEPA

lawsuits often subject project proponents as well as federal, state and local governments to vast financial losses. For example, the threat and reality of NEPA litigation has repeatedly given rise to needless delays—often for several years—in development of the nation’s critical energy resources, including oil and gas. Courts may

enjoin project activities pending resolution of a lawsuit, which can take years. Even

if they do not, the uncertainty arising from the litigation may make it impossible

to commit necessary investments and the window of opportunity for the project may

be lost.

These procedural impediments directly hurt not only the companies that would

develop the resources at issue but the public at large. Delays and uncertainty mean

lost jobs. In addition, federal, state and local governments count on the income from

royalties and production taxes to fund their schools, roads and other needed infrastructure. Moreover, in some cases, NEPA litigation gives rise to a cruel irony:

NEPA can cause, rather than cure, environmental harm.

For all these reasons, substantial changes to NEPA are long overdue. My suggested legislative amendments fall into the following four over-arching categories:

• Clarify and revise the scope of agencies’ NEPA obligations;

• Impose requirements on NEPA plaintiffs to discourage frivolous lawsuits;

• Permit increased participation in litigation by project proponents and other interested parties;

• Provide courts with more guidance;

Specific suggestions in each of these areas are presented below.

I. Clarify and Revise the Scope of Agencies’ NEPA Obligations.

A. Clarify the Alternatives an Agency Must Analyze.

NEPA requires an Environmental Impact Statement (‘‘EIS’’) to consider ‘‘alternatives to the proposed action.’’ 1 The statute itself, however, provides little guidance

on how an agency must fulfill this ‘‘alternatives’’ analysis. The 1978 regulations promulgated by the Council on Environmental Quality (‘‘CEQ’’) emphasize the importance of the alternatives analysis to an EIS, denoting it ‘‘the heart of an [EIS].’’ 2

The CEQ regulations require agencies to ‘‘include reasonable alternatives not within

the jurisdiction of the lead agency’’ as well as the ‘‘no action’’ alternative. 3 These

regulations also require the agency to describe the ‘‘underlying purpose and need’’

that the alternatives and proposed action must meet. 4 Beyond these very general

directives, however, the CEQ regulations provide minimal instruction as to how this

analysis must proceed.

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5 Compare Citizens Against Burlington, Inc. v. Busey, 938 F.2d 190, 199 (D.C. Cir. 1991) (narrowly construing the alternatives requirement and holding that ‘‘[a]n agency cannot redefine its

goals of the proposal that arouses the call for action; it must evaluate alternative ways of

achieving its goals, shaped by the application at issue and by the function that the agency plays

in the decisional process) with Van Abbema v. Fornell, 807 F.2d 633, 638 (7th Cir. 1986) (broadly construing the alternatives analysis and finding: ‘‘the evaluation of ‘‘alternatives’’ mandated

by NEPA is to be an evaluation of alternative means to accomplish the general goal of an action;

it is not an evaluation of the alternative means by which a particular applicant can reach his

goals.’’). 6See 46 Fed. Reg. 18026 (March 16, 1981).

7 Id. (question 35).

8 Id.

Unfortunately, the case law that has developed over the years does not resolve

this uncertainty. The jurisprudence regarding the duty of agencies to consider alternatives is dominated by two court opinions whose interpretations sometimes lead to

inconsistent results. The first case, Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972), adopted a ‘‘rule of reason’’ and took a broad view

of the range of alternatives that should be discussed. In that case, alternatives outside an agency’s scope of statutory authority that require legislation or administrative action were still considered viable alternatives. Moreover, even an alternative

that was a partial solution to the issue was to be considered. Nevertheless, ‘‘remote’’

or ‘‘speculative’’ alternatives did not need to be discussed.

In 1978, the Supreme Court addressed NEPA alternatives analysis in Vermont

Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519

(1978). There the Court affirmed application of the ‘‘rule of reason’’ but seemed to

eliminate from consideration most alternatives that had not yet been studied.

Vermont Yankee directed that an agency need not consider an infinite range of alternatives, but it must consider a range of alternatives that are reasonable and feasible.

Lower courts interpreting these cases and subsequent precedent have reached a

range of conclusions about the breadth of alternatives that need to be considered. 5

Given the confusion over how far agencies must go in examining alternatives that

have no realistic likelihood of being selected, some legislative constraints should be

placed on what alternatives an agency must consider. For example, amendments to

NEPA should make clear that when the proponent of a project would never employ

a particular technology or construct a project on a particular location, the ‘‘alternative’’ should not be evaluated in detail. Similarly, legislation should confirm that

when an alternative would not fulfill the purpose of and need for the project, as articulated by the agency, it need not be considered in detail. Rather, agencies should

be vested with express statutory authority to decline to consider alternatives that

they consider not ‘‘reasonable’’ or ‘‘realistic.’’ Finally, where an alternative would be

outside the jurisdiction of the agency, that agency should not be required to evaluate that alternative.

B. Provide for Short Form EISs.

In many instances, agency decision-makers receive little benefit from a very detailed analysis of the environmental impacts associated with a project that, for example, has been analyzed in detail before but arguably requires a ‘‘supplemental’’

EIS in light of some new information or occurrence, or is an activity with limited

or very predictable impacts, such as an activity that is repeated over and over again

in essentially the same fashion. In cases of this sort, the agency should have express

authority to (i) shorten comment periods, (ii) avoid any repetition of pre-existing

analyses, (iii) limit the text that the agency otherwise would prepare, and (iv) respond, in a summary fashion, to comments on the EIS.

C. Impose Timelines and Cost Caps on NEPA Documentation.

In March 1981, the CEQ published the Forty Most Asked Questions Concerning

CEQ’s National Environmental Policy Act Regulations. 6 In response to the question

of how long the NEPA process should take to complete, the CEQ responded that

‘‘under the new NEPA regulations even large complex energy projects would require

only about 12 months for the completion of the entire EIS process’’ but that program

EISs may require a greater period of time. 7 CEQ also noted that when only an EA

is necessary, ‘‘the NEPA process should take no more than 3 months, and in many

cases substantially less, as part of the normal analysis and approval process for the

action.’’ 8

Today, contrary to CEQ’s anticipated timelines, EISs can take years to complete

and cost millions. Similarly, Environmental Assessments (EAs) have begun to look

more like EISs, costing more and taking more time. Congress should consider

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9 40 C.F.R. § 1502.22.

granting agencies specific authority to set timelines and spending limits for specific

NEPA documents and link them to the level of decision being made (e.g., mandate

a six-month deadline for particular categories of EISs). Likewise, Congress should

make clear that agencies have wide latitude in how they document their NEPA findings and should consider approving short-form or ‘‘checklist’’ formats for particular

types of NEPA analyses.

D. Make Use of Adaptive Management Techniques.

Currently, CEQ regulations arguably require agencies to identify and fill in infor- mation gaps when there is incomplete information relevant to reasonably foreseeable significant adverse impacts and the overall cost of obtaining the information

is not exorbitant. 9 This requirement to fill in information gaps is often quite expen- sive and time consuming. Agencies instead should be expressly permitted the prerogative to develop NEPA documentation based on current information, and to use

rigorous adaptive management techniques (i) to adopt more targeted mitigation

measures as needed, (ii) to recommend Best Management Practices, and (iii) to generate a Supplemental EIS when there is significant new information on environmental issues that bear on the action.

E. Expand the Use of Categorical Exclusions.

Categorical exclusions provide for expedited review when a proposed action is of a type that is likely to impose little or no environmental impact. These projects do

not escape review. Instead, a categorical exclusion requires agencies to confirm that

the impacts associated with a proposed action are indeed extremely limited. We support prior comments that have requested broader authorization to employ categorical exclusions from the statute. Examples of appropriate additional categorical exclusions include: • existing projects that simply require a renewal permit (suggested by Steve

Smith of Texas Mining & Reclamation Association at the July 27, 2005 hearing); • activities that are non-significant or temporary (suggested by Steve Smith of

Texas Mining & Reclamation Association at the July 27, 2005 hearing); • completed or proposed mitigation actions that are sufficient to avoid significant

impacts (suggested by Steve Smith of Texas Mining & Reclamation Association

at the July 27, 2005 hearing); and • approval of on-lease linear facilities when they are placed in existing corridors

or areas of prior disturbance (suggested by Dave Brown of BP America at the

August 1, 2005 hearing).

Agencies should have the flexibility to utilize categorical exclusions in these and

other appropriate situations: an agency’s expertise should be applied to discern situations where full-fledged analysis would only repeat work already done on comparable projects or where a project is unlikely to give rise to significant impacts.

In these situations, categorical exclusions should be employed. Providing agencies

with this flexibility will allow the United States to avoid unnecessary and duplicative agency efforts that do not benefit the environment and waste valuable resources.

F. Clarify that Agencies Need Not Examine Impacts That Are Not Reasonably Foreseeable.

Some interpretations of the existing NEPA regulatory scheme suggest that when

conducting an EIS, an agency must predict all potential impacts of events, including, for example, terrorist attacks, where the nature, and even the likelihood, of

those events is completely unforeseeable. NEPA should not require agencies to predict unpredictable events or quantify unquantifiable risks, especially where there is

no causal nexus between the project and the event in question. Where courts are

permitted to impose these fundamentally impossible tasks on agencies, NEPA becomes nothing more than a convenient veto for any project opponent willing to initiate a lawsuit. The statute should make clear that only reasonably foreseeable impacts, with a close causal relationship to the action in question, need be examined,

and should set guidelines for what constitutes ‘‘reasonable foreseeability’’ in this

context.

II. Impose Requirements to Discourage Frivolous Lawsuits.

A. Require Exhaustion of Administrative Remedies.

Exhaustion of remedies is a well-established principle in administrative law: a

party must pursue available means of recourse within an agency before resorting

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10See, e.g., Marathon Oil Co. v. United States, 807 F.2d 759, 767-68 (9th Cir. 1986); Tex Tin Corp. v. U.S. E.P.A., (D.C. Cir. 1991)(‘‘[a]bsent special circumstances, a party must initially

present its comments to the agency during the rulemaking in order for the court to consider

the issue.’’) 11See Northside Sanitary Landfill, Inc. v. Thomas, 849 F.2d 1516, 1519 (D.C.Cir.1988), cert.

denied, 489 U.S. 1078 (1989). 12See, e.g., McKart v. United States, 395 U.S. 185, 194-95 (1969)(addressing exhaustion) U.S.

v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 36-37 (1952) (addressing waiver and explaining

that ‘‘orderly procedure and good administration require that objections to the proceedings of

an administrative agency be made while it has opportunity for correction in order to raise issues

reviewable by the courts.... Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection

made at the time appropriate under its practice.’’) 13See Trout Unlimited v. Dep’t of Agriculture, 320 F. Supp. 2d 1090, 1098 (D. Colo. 2004). 14See Park County Resource Council v. U.S. Department of Agriculture, 817 F.2d 609 (10th Cir. 1987). 15The Supreme Court has recently reconfirmed that parties challenging an agency’s NEPA

compliance bear a responsibility to ‘‘structure their participation so that it is meaningful, so that

it alerts the agency to the [parties’] position and contentions.’’ Dep’t of Transportation v. Public

Citizen, 124 S. Ct. 2204, 2213 (2004). See also City of Sausalito v. O’Neill, 386 F.3d 1186, 1208

(9th Cir. 2004) (similar). ‘‘Ilio’Ulaokalani Coalition v. Rumsfeld, 369 F. Supp. 2d 1246, 1253 (D.

Hawai’i 2005). The Court indicated that this is true even though the agency has the primary

responsibility to ensure NEPA compliance, but the Court went on to note that flaws in the

NEPA process ‘‘might be so obvious that there is no need for a commentator to point them out

specifically in order to preserve its ability to challenge a proposed action.’’ Public Citizen, 124

S. Ct. at 2214. 16Public Citizen, 124 S. Ct. at 2214 (finding respondents ‘‘forfeited any objection to the EA

on the ground that it failed adequately to discuss potential alternatives to the proposed action’’). 17See, e.g., Havasupai Tribe v. Robertson, 943 F.2d 32, 34 (9th Cir. 1991).

to a judicial challenge of the agency’s action. Under the related doctrine of ‘‘waiver,’’

a party must raise a particular issue before the agency in order to be able to pursue

a subsequent judicial challenge based on that issue. 10 Moreover, an objection to an

agency position must be made with sufficient specificity reasonably to alert the

agency to the potential flaws in its analysis. 11 These doctrines have multiple purposes: avoiding premature claims before agencies can develop appropriate background, allowing agencies to apply their own expertise, giving agencies the ‘‘first

chance’’ to exercise their own discretion before judicial review, and providing agencies the opportunity to find and ameliorate their own errors. 12

Where NEPA is concerned, however, current case law is not clear that parties

must raise issues before the agency and must exhaust administrative remedies in

order to pursue judicial review. Some case law suggests that a party need not raise

a particular issue before the agency so long as some other party has raised that

issue. Some courts apply a balancing test to determine whether exhaustion should

apply, weighing the agency’s interests in appropriate process against the harm to

a plaintiff if judicial review is denied. In other cases, exhaustion is routinely required where an agency’s regulations require administrative appeal before judicial

review. 13 Finally, at least one court has held that because NEPA applies to all federal agencies, no agency has expertise in NEPA and exhaustion rule does not

apply. 14 This lack of uniformity in the NEPA context not only adds to litigation uncertainty after agency decisions are made, but also forces agencies to try to anticipate objections from a potential plaintiff, even where those objections were never

raised before the agency. 15

To address this confusion and give agencies an opportunity to respond to potential

criticisms, the doctrines of exhaustion and waiver should be codified in NEPA.

NEPA should be amended to explicitly require the timely participation of third parties in proceedings before the agency. The statute should make clear that parties

are required to put agencies on notice of potential flaws in their NEPA analyses by

providing sufficiently detailed comments during the public process. For example,

parties seeking to challenge an agency’s alternatives analysis should be required to

alert the agency to overlooked alternatives well before the Final EIS and Record of

Decision (ROD) are entered. 16 Similarly, parties should not be allowed to claim that

NEPA documents inadequately considered the environmental or other effects of the

proposed action when they failed to raise those issues during the public comment

process or declined to pursue all available opportunities for administrative challenges. 17 Third parties should be prohibited from bringing actions based upon matters that they neglected to discuss thoroughly before the agency during administrative proceedings or that they failed to pursue through all available administrative

procedures.

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18Fed. R. Civ. P. 65(c) (emphasis added). 19See, e.g., Save Our Sonoran v. Flowers, 381 F.3d 905, 916 (9th Cir. 2004) (noting Ninth Circuit’s ‘‘long-standing precedent that requiring nominal bonds is perfectly proper in public interest litigation’’); Davis v. Mineta, 302 F.3d 1104, 1126 (10th Cir. 2002) (‘‘where a party is seeking

to vindicate the public interest served by NEPA, a minimal bond amount should be considered’’). 20 A few courts have adopted a ‘‘balancing’’ test, considering the relative hardship to the par- ties. See, e.g., Save Our Sonoran v. Flowers, 381 F.3d at 916 (requiring $50,000 bond and noting

such an amount was appropriate ‘‘[s]o long as a district court does not set such a high bond

that it serves to thwart citizen actions’’). 21 28 U.S.C. § 2401(a) (‘‘[E]very civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.’’).

See, e.g., Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 186 (4th Cir. 1999);

Southwest Williamson County Community Ass’n v. Slater, 173 F.3d 1033, 1036-37 (6th Cir.

1999); Chemical Weapons Working Group, Inc. v. Dep’t of the Army, 111 F.3d 1485, 1494-95

(10th Cir. 1997). 22See, e.g., Park County Resource Council v. U.S. Department of Agriculture, 817 F.2d 609 (10th Cir. 1987) (‘‘NEPA itself does not contain a statute of limitations’’ therefore timeliness

challenges involve only the doctrine of laches); Daniel R. Mandelker, NEPA Law and Litigation

§ 4:34 (opining that Park County takes the better view). Because laches is an ad hoc doctrine

that is determined on a case-by-case basis by individual courts, it provides little predictability

to parties seeking finality in agency decisionmaking. Nor does it provide clear advance guidance

to plaintiffs who may be considering whether and when to raise their claims. 23See, e.g., Southwest Williamson County, 173 F.3d at 1036.

B. Strengthen Bond Requirements for Plaintiffs Seeking Injunctions.

Federal Rule of Civil Procedure 65(c), which covers preliminary injunctions, provides:

No restraining order or preliminary injunction shall issue except upon the

giving of security by the applicant, in such sum as the court deems proper,

for the payment of such costs and damages as may be incurred or suffered

by any party who is found to have been wrongfully enjoined or restrained. 18

Federal Rule of Civil Procedure 62(c), which covers injunctions pending appeal, requires a bond to be in an amount ‘‘proper for the security of the rights of the adverse party.’’ Fed. R. Civ. P. 62(c). The posting of either type of injunction bonds

allows the court to preserve the status quo, but at the same time protects defendants against damage they might suffer if the court later finds a permanent injunction is not warranted.

Despite these two rules, a number of cases suggest that some plaintiffs occupy a privileged position and are only required to post a nominal bond if they obtain an

injunction that halts a project. 19 This ‘‘NEPA exception’’ to the bond requirement

is meant to allow private organizations to pursue NEPA enforcement. In most cases,

plaintiffs are not required to post a bond at all, or only a small nominal bond, irrespective of their potential financial resources. 20 Thus, over the years, the concept

of protecting the ‘‘public interest’’ has become conflated with the goal of stifling

agency action.

The injunctions granted by courts routinely cost industry and the government

huge sums while a project is delayed and additional environmental analyses are

conducted in order to correct a deficiency in an EIS. When the injunction is wrongly

issued and no bond has been posted, industry participants have no recourse in recovering their substantial losses and the government has no recourse for the resources it has inappropriately allocated to additional NEPA analyses. Amendments

to NEPA should explicitly disclaim the ‘‘NEPA exception’’ to the Federal Rules’ clear

requirements that plaintiffs post bonds to cover the ‘‘costs and damages’’ and to

‘‘secure[] the rights of the adverse party.’’ Courts should be required to conduct an

appropriate balancing test that considers not just the desire to have private parties

enforce NEPA, but also protect the rights of the government and project proponents

and defray the costs from lawsuits which result in serious delay and huge price

tags.

C. Impose a 180-Day Statute of Limitations on NEPA Claims.

Neither NEPA, nor the Administrative Procedure Act (‘‘APA’’), which provides a

private right of action under NEPA, have an explicit statute of limitations. While

the issue is not completely settled, most Circuit Courts of Appeal hold that the appropriate statute of limitation for bringing a NEPA action is six years. The view is

grounded on the language of 28 U.S.C. § 2401(a), which is the general statute of limitations for claims against the United States and which has been routinely applied

to Administrative Procedure Act lawsuits. 21 Some case law and commentators suggest, however, that statutes of limitations do not apply to NEPA claims. 22

Courts applying the six-year period consider a final EIS or Record of Decision

based on that EIS to constitute ‘‘final agency action.’’ 23 In most instances, projects

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24See, e.g., 40 C.F.R. § 1505.2 (public record of decision where EIS is prepared); 40 C.F.R. § 1506.6 (public notice and involvement requirements). 25For other administrative review, environmental statutes have traditionally required chal- lenges during a more restricted period. For example, the Clean Water Act required review of

most administrative regulatory decisions within 120 days. See Clean Water Act § 509(b), 33

U.S.C. § 1369(b). See also Clean Air Act § 307(b), 42 U.S.C. § 7607(b) (generally requiring an action challenging administrative decisions to be brought within sixty days). This period also coincides with the limitation imposed by Section 6002(l)(1) of the recently passed Transportation

Act. 26 28 U.S.C. § 2412(b)(d). 27See Preservation Coalition of Erie County v. Fed’l Transit Admin., 356 F.3d 444, 452 (2d Cir. 2004) (examples include enforceable judgments, consent decrees, court order to prepare a

supplemental EIS). 28 Compare Wilderness Soc. v. Babbitt, 104 F. Supp. 2d 10, 18 (D.D.C. 2000) (concluding that D.C. Circuit’s generous attitude toward Rule 24(a) in general should carry over to NEPA context) with Wetlands Action Network v. United States Army Corps of Eng’rs, 222 F.3d 1105, 1114

(9th Cir. 2000) (denying intervention on the merits to project proponents).

subject to NEPA will engender significant investment (e.g., planning, permitting,

preliminary construction activities) and may be substantially underway even a few

months after an EIS or ROD has been approved. Obviously, the more time that has

elapsed, the greater the potential for substantial investment and other commitment

in reliance on agency approvals. In addition, the public (and especially parties that

have expressed their interest through participation in the project) certainly have notice of an agency’s final decision in ample time to bring a prompt challenge. 24 Thus,

no legitimate policy is promoted by a delay in litigation. Imposing a shorter time

period imposes little risk that a potential plaintiff was taken completely unawares.

We recommend a general limit of 180 days. 25 In addition, if another statute prescribes a shorter duration, we recommend that NEPA be amended to explicitly yield

to any shorter period of time prescribed for bringing an action.

D. Provide For Responsibility for Attorneys’ Fees.

Under the ‘‘American Rule’’ governing attorneys’ fees, parties generally bear their legal expenses, regardless of the result of the litigation. In addition to facing the

costs associated with additional environmental analyses, the government and project

proponents consequently often incur significant legal fees while responding to a

NEPA challenge. There is one exception to this rule that applies to NEPA: the

Equal Access to Justice Act 26 (‘‘EAJA’’) allows federal courts to award costs and fees

to a prevailing party in a NEPA action against the government, provided that the

government’s position is not substantially justified. Many cases have allowed successful public interest parties to recover their fees when there is a material alteration or a court-ordered change in the legal relationship between the parties. 27

There is currently no opportunity, however, for project proponents to recover their costs and fees from private parties who initiate frivolous NEPA litigation. The Task

Force should consider conferring authority upon the district courts to award attorneys’ fees incurred by the government and industry in defending unfounded NEPA

litigation. If, for example, NEPA prescribed that the district court may exercise its

discretion to award attorneys’ fees against any party challenging a federal project

on NEPA grounds in those circumstances, the provision might well limit the number

of frivolous challenges. Such a provision would not, however, chill or inhibit plaintiffs’ ability to bring meritorious NEPA actions, since it would be limited to the most

egregious of cases.

III. Permit Increased Participation in Litigation by Project Proponents and other Interested Parties.

A. Change the Intervention Standards for Project Proponents.

Although most federal courts follow a liberal policy in allowing citizen groups and environmental associations to defend the general public’s broad interest in environmental protection, some courts have been far less willing to allow private parties

to defend an agency’s position on the grounds that those parties have economic interests. 28 Project proponents typically have a direct and significant interest in the property or transaction that is the subject of a lawsuit brought under NEPA, yet

face hurdles in participating in the litigation. Specifically, it has proven difficult for

some parties to intervene ‘‘as of right’’ in the litigation because some courts have

held that the government is the only proper defendant in a NEPA challenge. To

remedy this fundamental unfairness, we recommend amending NEPA to expressly

protect the rights of prospective intervenors who have a significant economic interest in the outcome of NEPA claims.

NEPA itself does not contain a provision addressing intervention by private par- ties. Rather, federal courts rely on the Federal Rules of Civil Procedure to decide

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29 According to the Ninth Circuit, a party may intervene under Rule 24(a) provided the party satisfies four necessary factors: (1) motions for intervention must be timely; (2) the nonparty

must claim a ‘‘significantly protectable interest’’ relating to the subject matter of the action; (3)

the nonparty must demonstrate that his ability to protect his interest will be ‘‘impair[ed] or

impede[d] by a negative result in the action; and (4) the nonparty must demonstrate that his

interests are ‘‘inadequately represented’’ by the existing parties.’’ See, e.g., Sierra Club v. United

States E.P.A., 995 F.2d 1478, 1481 (9th Cir. 1993). Applying this test, the Ninth Circuit has

repeatedly ruled that industry parties cannot intervene as of right in NEPA cases because only

the government is a proper defendant. See, e.g., Churchill County v. Babbitt, 150 F.3d 1072,

1082 (9th Cir. 1998). The Ninth Circuit’s ‘‘government-only’’ ruling stems from an interpretation

of the ‘‘significantly protectable interest’’ test that excludes economic interests. See Kootenai

Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108 (9th Cir. 2002). The court has reasoned that

NEPA requires action only by the government, and therefore only the government can be liable.

Churchill County v. Babbitt, 150 F.3d at 1082. 30Portland Audubon Soc. v. Hodel, 886 F.2d 302, 309 (9th Cir. 1989). 31 Id. But see Rosebud Sioux Tribe v. McDivit, 286 F.3d 1031, 1038 (8th Cir. 2002) (citing Ben- nett v. Spear, 520 U.S. 154, 166 (1997)); Friends of Boundary Waters Wilderness v. Dombeck,

164 F.3d 1115, 1125 (8th Cir. 1999). 32See, e.g., The Wilderness Society v. Babbitt, 104 F. Supp. 2d 10, 18 (D.D.C. 2000) (noting Ninth Circuit’s jurisprudence on intervention is NEPA cases is ‘‘unduly rigid in light of Rule

24’s purpose of protecting third parties affected by litigation’’ and instead allowing prospective

intervenors to participate in all aspects of litigation). 33Marsh v. Oregon Natural Resources Council, 490 U.S. 360 (1989). 34 5 U.S.C. § 706(2)(A). 35See, e.g., Mandelker, NEPA Law and Litigation § 8:2. 36 Id. at § 8:7.

whether a party can intervene in a lawsuit raising NEPA challenges. Recently, federal courts, particularly in the Ninth Circuit, have applied Rule 24(a) in such a way

as to close the courts to private parties who are directly affected by the outcome

of the cases in question. 29 According to Ninth Circuit precedent, NEPA does not pro- vide protection for purely economic interests. 30 Courts in the Ninth Circuit have

held that parties with purely economic interests do not have a ‘‘significantly

protectable interest’’ in NEPA litigation and cannot intervene as of right under Rule

24. 31

The Ninth Circuit’s interpretation can have unfair consequences in the context of

NEPA. If a court concludes that only the government has the requisite interest in

NEPA cases, project proponents can be barred from litigation despite the fact that

their interests would be severely jeopardized by an adverse ruling and would not

be adequately represented by the government defendant. Because the Ninth Circuit

is the largest federal circuit—including California, Oregon, Washington, Arizona,

Montana, Idaho, Nevada, Alaska, and Hawaii—the effect of this troubling jurisprudence is wide-reaching. Other courts and commentators have been critical of the

Ninth Circuit’s position. 32 NEPA legislative amendments should clarify that parties who have made substantial economic investments in a project have a ‘‘significantly

protectable interest’’ under NEPA.

B. Permit Participation by Project Proponents and Other Interested Industry Representatives in Government Settlement Negotiations.

When a government agency decides to participate in settlement discussions with NGOs and other NEPA plaintiffs, affected businesses can be excluded. In keeping

with the recommendation above that industry be full-fledged participants in the litigation, industry should also be an important part of any settlement. NEPA amendments should require settlement negotiations to include project proponents and

other affected businesses.

IV. Give Courts More Guidance.

A. Establish a Standard of Review within the NEPA Statute.

The standard of review governing NEPA is that for informal decision-making and is borrowed from the Administrative Procedure Act (APA). 33 Judicial review determines whether an agency’s decision is ‘‘arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law.’’ 34 Obviously, the standard of judicial re- view a court selects determines its likelihood of overruling an agency’s decision. This

‘‘arbitrary and capricious’’ standard is the most deferential standard courts apply

when reviewing agency decisions. 35 In NEPA cases, courts generally apply the APA’s arbitrary and capricious standard to an agency’s decision on whether an EIS

is required or whether an action is categorically excluded. Courts differ, however,

in how they apply that standard. 36 For example, some courts conclude that because

NEPA is not the province of any particular agency, no one agency has ‘‘expertise’’

with respect to that statute and agencies are therefore due less deference in NEPA

cases than in other administrative law contexts. In other cases, courts have found

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37Goos v. Interstate Commerce Comm’n, 911 F.2d 1283 (8th Cir. 1990). Compare, e.g., Spiller

v. White, 352 F.3d 235, 240 (5th Cir. 2003) (plaintiffs face ‘‘high bar to success’’ since decision

not to prepare EIS is ‘‘accorded a considerable degree of deference’’) with Grand Canyon Trust

v. FAA, 290 F.2d 339, 340-41 (D.C. Cir. 2003) (stating agency’s EA must take ‘‘hard look at the

environmental concern, must make convincing case for FONSI, and agency must ensure projects

has sufficient safeguards to reduce impacts to minimum when EIS not prepared).

that a ‘‘reasonableness’’ standard applies to the threshold legal question of whether

an action is a ‘‘major federal action’’ under NEPA. 37

In order to ensure that agencies’ NEPA decision-making receive all the deference they are due, the statute should include an explicit standard of review for NEPA

cases.

B. Clarify Remedies When a NEPA Violation is Found.

Currently, some case law may be read to suggest that once a court finds a viola- tion of NEPA, it must halt the entire project. Yet, in many instances, courts are

able to tailor an injunction to protect the environmental interest at issue during the

pendency of the preparation of an EIS. The authority to issue an injunction of this

sort should be codified and encouraged.

CONCLUSION

Thank you for the opportunity to testify here today. My clients and I appreciate

the Task Force’s efforts in providing this series of public hearings as a forum for

those interested in improving NEPA. The recommendations I have made here seek

to address some of the more critical flaws in the current NEPA regulatory scheme.

Each of these issues—as well as many others—merit investigation and discussion

in a level of detail not appropriate for today’s hearings. We look forward to working

with you, and others in Congress, to listen to other concerns, to analyze fully the

effects of the current system and to develop a reasoned, responsible approach to

NEPA reform.

[Response to questions submitted for the record by Mr. Martin

follows:]

JOHN C. MARTIN

PATTON BOGGS LLP

(202) 457-6032

JMARTIN@PATTONBOGGS.COM

DECEMBER 9, 2005

VIA U.S. MAIL AND EMAIL

Task Force on Improving NEPA

Attn: Joanna MacKay

House Committee on Resources

Longworth House Office Building, 1320

Washington, DC 20515-6201

Re: Responses to Additional Questions Posed by Task Force

To the Task Force on Improving NEPA:

I would first like to thank you for granting me the opportunity to testify before

the Task Force on November 17, 2005. My clients and I appreciate the Task Force’s

efforts in providing this public forum so that those interested in improving NEPA

may offer our recommendations.

In addition, I would like to respond to the Task Force’s follow-up questions, which

I received in a letter dated November 22, 2005. The Task Force posed two additional

questions: (1) ‘‘Apart from the Ninth Circuit Rule 24 decision you cite, is there a

problem with project proponents not being able to participate in litigation or are

they choosing not to participate?’’ and (2) ‘‘Could your recommendation that exhaustion of administrative remedies actually cause more delays than under current law?’’

I will respond to each of these inquiries in turn.

1. Participation in Litigation by Project Proponents

Private parties with an economic interest in a project, including project proponents, currently have no assurance that they will be able to defend their projects

against attacks brought by project opponents. This circumstance arises because

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1 Because NEPA does not contain a provision addressing intervention by project proponents, the courts decide whether those parties can intervene under the Federal Rules of Civil Procedure. Under Rule 24(a), any party may intervene in an action provided the applicant ‘‘claims

an interest relating to the—subject of the action,’’ and the applicant is ‘‘so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest.’’ Fed. R. Civ. P. 24(a). A number of courts have interpreted this ‘‘interest’’

requirement narrowly so as to prevent project proponents from participating until the remediation phase of the NEPA lawsuit.

some federal courts—including the Courts of Appeals for the Fifth, Seventh and

Ninth Circuits and the District Court for the District of New Mexico—have ruled

that parties with economic interests in projects may not intervene as of right in

NEPA lawsuits attacking those projects. Despite the potentially devastating economic injuries they will suffer, these courts maintain that such parties simply do

not have a ‘‘significantly protectable interest.’’ 1 Instead, project proponents, and oth- ers who have an ‘‘economic’’ interest in NEPA litigation, must rely on the Government, whose interest is, of course, not identical to their own, to defend the litigation.

Those parties are left to simply hope that the Government’s litigation strategy will

incidentally vindicate their rights as well. It is difficult to determine precisely how many of these parties have been denied the opportunity to participate in NEPA litigation. Given that this narrow interpretation of the right to intervene in NEPA cases may be seen as ‘‘the law of the land’’

in certain jurisdictions, many parties may be discouraged from attempting to intervene. In that sense, some project proponents may be said to have ‘‘chosen’’ not to

seek intervention, but, in fact, they have been denied intervention. Those instances

of intervention denied, of course, cannot be documented. It is certainly true that

while there are a number of cases expressly denying parties the right to intervene,

even more parties have effectively lost the right to intervene by the precedent established in those cases.

Denying the right to participate in NEPA litigation to the parties who, in many instances, have the strongest tangible interests in the outcome of that litigation not

only contravenes fundamental notions of fairness, but it diminishes the NEPA, as

well as the judicial process. NEPA is intended to foster participation, to encourage

the airing of different perspectives on a project, and, most essentially, to draw out

information from all sides about a particular project. Similarly, the judicial process

rests on the assumption that an adversarial process involving parties with direct,

concrete interests on both sides of an issue is likely to produce the best results. Denying the right to participate to those whose interests are economic undercuts these

basic principles, and means that the ultimate resolution of a NEPA issue is more

likely to be reached based on an incomplete picture of the project and its likely impacts. The interests at stake in projects subject to NEPA—the production of muchneeded energy resources, the rebuilding of critical infrastructure, the protection of

public lands, and many others—are too important not to include all interested parties in the resolution of challenges to those projects. Congress can alleviate this problem by amending NEPA to make clear that par- ties whose economic interests are affected by litigation have a right to intervention

just as do those parties whose interests are less tangible.

a. Existing Case Law Denying Intervention

As my previous written testimony explains, the United States Court of Appeals for the Ninth Circuit has repeatedly held that industry parties cannot intervene as

of right in NEPA cases, asserting that the government is the only proper defendant.

See, e.g., Wetlands Action Network v. U.S. Army Corps of Eng’rs, 222 F.2d 1105,

114 (9th Cir. 2000); Churchill County v. Babbitt, 150 F.3d 1072, 1082 (9th Cir.

1998); Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1108 (9th Cir. 2002).

Although other courts and commentators have rejected this interpretation, the Ninth Circuit is not alone in advancing it. The United States Courts of Appeals for

the Seventh and Fifth Circuits and the United States District Court for the District

of New Mexico have also suggested that parties with economic interests in a project

will not be permitted to defend those interests if they are attacked in litigation

under NEPA.

In Wade v. Goldschmidt, 673 F.2d 182 (7th Cir. 1982), private parties attempted

to intervene to prevent economic losses that would result if a challenged project did

not proceed as planned. The Seventh Circuit explained that NEPA provides no protection for economic interests and that only the federal government could defend

against NEPA challenges: ‘‘all other entities have no right to intervene.’’ 673 F.2d

at 185.

Following the Seventh Circuit’s lead, in Collin County v. Homeowners Ass’n for Values Essential to Neighborhoods, 915 F.2d 167 (5th Cir. 1990), a citizens’ group

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2While these two concepts have become muddled in the case law, both are important aspects

of the doctrine of exhaustion. The first is sometimes described as ‘‘waiver’’ because a party who

has not raised an issue before the agency has ‘‘waived’’ that particular issue and cannot raise

Continued

was opposing construction of a highway. Collin County brought an action against

the citizens’ group, seeking a declaration that the final EIS for the highway project

complied with NEPA. 915 F.2d at 168-69. The court dismissed the suit, holding that

the county lacked standing to bring a declaratory action against a citizens’ group.

Then, even though it had already dismissed the case, the Fifth Circuit went a step

further, announcing in dicta that only governmental bodies can defend NEPA actions and that Collin County could not have intervened in a NEPA lawsuit brought

by the citizens’ group. Id. at 171. Finally, explaining that the Court of Appeals for the Tenth Circuit had not yet ruled on this issue, the District Court for the District of New Mexico seized the opportunity to deny intervention. In Forest Guardians v. BLM, 188 F.R.D. 389, 395

(D.N.M. 1999), the court explained that it was ‘‘taking guidance from the Ninth Circuit line of cases,’’ and excluded grazing permittees from participation in a NEPA

action brought by environmental groups because ‘‘applicants here do not have a legally protectable interest...to allow full as-of-right intervention under Rule 24.’’ 188

F.R.D. at 195.

Thus, although parties attacking projects under NEPA generally have broad rights to participate in litigation, project proponents in many instances simply do

not have an equivalent right to intervene to defend their interests in such litigation.

b. Affirming a right to intervention

Congress could take steps to affirm private participation in the defense of NEPA

actions by amending the statute to clarify that: (i) industry has the right to intervene as of right under Federal Rule of Civil Procedure 24(a), and (ii) industry assertions of purely economic harm should be considered to fall within the ‘‘zone of interests’’ protected under NEPA. These two changes should make clear that affected

business interests have a right to participate as a full-fledged party in any litigation

challenging a government project’s NEPA compliance.

Such an amendment to the NEPA statute should also help to clarify that Defendant-Intervenors should not lose their standing in a NEPA case if the government

declines to pursue an appeal of a district court ruling. Currently, the status of a

Defendant-Intervenor seeking to appeal a district court’s NEPA decision may be unclear where the government declines to appeal. Absent an appeal by the government, a defendant-intervenor must have independent jurisdictional grounds on

which to pursue an appeal and must satisfy the standing requirements of Article

III. See, e.g., Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094 (9th Cir. 2002).

To establish standing, a defendant-intervenor must show, among other things, that

it has suffered an invasion of a ‘‘legally-protected interest.’’ See Didrickson v. United

States Dep’t of the Interior, 982 F.2d 1332, 1340 (9th Cir.1992) (quoting Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560 (1991)). As discussed above, several courts

have held that only environmental interests, narrowly construed, fall within that

zone of legally protected interests, while economic interests do not. By clarifying

that economic interests fall within NEPA’s ‘‘zone of interests,’’ Congress can ensure

that project proponents may defend their interests both at the trial court level and

on appeal.

2. An exhaustion requirement would improve the NEPA process, foster the

goals of NEPA, and, on balance, would likely expedite resolution of

NEPA challenges.

Although requiring parties to present their concerns to the agency in the first instance may occasionally extend the timetable for completing administrative review,

it fosters the fully-informed decisionmaking that is the goal of NEPA and it allows

agencies the opportunity to address potential concerns before decisions are made

and before litigation is invoked. It would also likely reduce the likelihood of litigation. Thus, on balance, it is more likely to improve, rather than exacerbate, the

problems of extreme and unwarranted delay that currently plague NEPA processes.

Exhaustion is based on the notion that a party that wants to sue an administrative agency for a decision that the agency has made must first avail itself of public

participation and appeal opportunities that the agency provides relating to that decision. Where exhaustion is required, a party must do two things if it later wants

to sue the agency: (1) it must raise any future litigation issues before the agency

first; (2) it must participate in all the steps of the agency process, not just some

of them. 2

74

it during litigation. The second is often referred to more generally as ‘‘exhaustion,’’ because a

party must exhaust the entire administrative agency process before proceeding to the judicial

review process.

Within the NEPA process, there are many opportunities for affected parties to

participate, ask questions, voice their concerns, and seek solutions. An agency’s

NEPA’s public participation process typically includes public scoping meetings, comment periods, and protest or other agency appeal procedures. NEPA works best

when interested parties participate fully in the agency process, and provide the

agency with an opportunity to address their concerns. The process breaks down

when interested parties decline to participate fully—either by neglecting to raise all

their issues, or by ignoring some of the stages of agency proceedings—and then

months, or even years later, those parties go straight to court to complain that the

Agency neglected their concerns. Although an exhaustion requirement in NEPA arguably could force administrative agencies to do a little ‘‘extra work’’ to address additional comments, and this could result in some delay, encouraging potential issues

to be aired in a predecisional process—exactly as NEPA originally contemplated—

will foster better decisionmaking. Moreover, any delays from these additional

predecisional efforts are likely to be more than offset by resolving issues early and

avoiding protracted and costly litigation.

I hope that these additional responses are helpful. If the Task Force has any addition questions, please do not hesitate to contact me.

BEST REGARDS,

JOHN C. MARTIN

cc: Glen Maynard

Todd Ennenga

Rick Axthelm

Miss MCMORRIS. Excellent testimony from everyone, and we

really appreciate you being here and taking the time to be here.

Mrs. Drake. Would you start?

Mrs. DRAKE. Yes. Thank you, Madam Chairwoman. I would also

like to thank all of you for being here, and once again at a Task

Force hearing I have heard the thing that we all believe; and that

is, we all think that NEPA, the underlying thread of NEPA, is a

very good thing, to have Federal agencies involved, Federal—that

their knowing a project is going to have public participation, we

think that is good.

But I do think Mr. Harwood said it well when he said, what we

really need to look at are the procedures and the process.

And I think I would like to start with Mr. Yost and Mr. Dreher,

and maybe follow it up by Mr. Goldstein, because the thing that

I have heard across the Nation are the lawsuits.

And I know that Mr. Yost and Mr. Dreher—I hope I am saying

that right—have said that there is a very small number of lawsuits, and so it really shouldn’t be a concern. But that is not what

we have heard. We have seen pictures of stacks of papers that

would fill the trunk of a car, the issue of people doing above and

beyond and requiring additional things just in case there is a lawsuit.

Personally, I think if there are 150 cases and only 11 of them

where the courts found an injunction makes you wonder about

what was behind those 145 that didn’t take place. And we did have

someone testify in Norfolk what our big fear is, and that is, lawsuits come about through NEPA because it is a easy way to do it.

That is to paraphrase. But we actually had one of the people testify

that they used NEPA in order to file the lawsuit.

75

So, I would just like for to you comment. And I know you say

that is a small number, but the fear of the lawsuit, I think is what

generates a lot of paperwork, a lot of extra work, a lot of extra

time. And I lost my train of thought on the last question. But I will

let you answer that and then I will get it back. Thank you.

Mr. YOST. I think, Congresswoman Drake, that there is good

sense in what you’re saying there, that the fear is in a sense it is

real. But three things: First, were it not for litigation, nobody

would pay any attention to NEPA and environmental impact statements. And I think that is just sort of a fact of life. That is what

makes Federal agencies do what Congress has told them they are

supposed to do because somebody is looking over their shoulder.

Mrs. DRAKE. Mr. Yost, wouldn’t you think Congress should look

over their shoulder rather than the courts? That is part of our job

is oversight, and that is part of what we are doing right now.

Mr. YOST. I think that that makes a lot of sense, but I don’t

think they are mutually exclusive. We have, as Chairman

Connaughton said, about 50,000 NEPA actions annually. That is

an awful lot of detail for Congress to get involved in. But second,

picking up on what you’re saying, one of the recommendations I

made, which I have discussed with your Chairwoman before, is trying to get good legal input.

And I suggest in my presentation that involving the Justice Department is a way to do it without having to look for outside resources to advise agencies on the adequacy of their documents before they hit the street, so that you have those who will ultimately

be defending the document having a say in the preparation of the

document, which means it is going to be a lot better document

when it comes out.

But also I agree what is implicit in what you were saying and

what a number of the other witnesses have said about when there

is judicial review, moving it along quickly. And I have made several

recommendations in there, including statute of limitations, priority

for suits, measures to try and ensure that the administrative

record is promptly prepared. So there are a number of steps that

can be taken to expedite litigation.

Mrs. DRAKE. What about some sort of a checklist that you cannot

file a lawsuit unless there have been violations? Like you said, this

is a big hammer. So the agencies have to do the right thing because of the court case. But what we are hearing today is that

there is no standard. You can just automatically go into court

under NEPA. I would think before you go into court, somebody

should have violated something. And maybe some sort of a check

list. I really like the idea of a mediation or dispute resolution before the court case.

Mr. YOST. I think mediation or a dispute regulation is a very

worthwhile idea. It is unethical for a lawyer to bring a suit without

a belief in a reasonable prospect of success in that suit. As you

know, the Federal court system has a system of sanctions whereby

if somebody brings an irresponsible suit, they can be sanctioned.

Mr. Dreher was accurate, as far as I know, in his statement that

no NEPA plaintiff has ever been sanctioned by a Federal judge.

Mrs. DRAKE. If I could just add to that, my question would be:

Is that because there are no guidelines for filing the suit?

76

But thank you, Madam Chairwoman. I will yield back. My time

has expired.

Miss MCMORRIS. I will give the other two an opportunity to answer. And just for everyone’s information, it looks like we are going

to have votes again at 10 after, so we are going to try to keep it

going. OK.

Mr. DREHER. Thank you, Madam Chairwoman. This is obviously

an important issue. As you know, I have represented individuals in

litigation. I have also defended Federal agencies and I have also

advised private clients about litigation matter. So I think I have a

relatively balanced view on it. I have to say, first, that you have

to bear in mind that NEPA is enforced through citizen litigation.

And most importantly, NEPA is intended to empower ordinary

citizens in dealing with the forces of big government. And going to

an independent judge is an essential right to carry that out, to be

able to tell your constituents that they have rights to actually be

heard and to get disputes resolved.

I would welcome suggestions for dispute resolution. I welcome

the suggestion that CEQ and the Federal agencies be given resources to try to explore ways to resolve these issues. I particularly

think engaging in public participation early in the scoping process,

bring the public in, find out their concerns, can lead to resolution

of those concerns.

But, ultimately, I think you have to allow citizens their right to

go to court if they are seriously aggrieved.

Now, I think it is not that there are no standards. I think the

difficulty is that there are a set of principles that you apply in environmental analysis to particular cases. But the way they fit those

particular cases, obviously, has to vary from case to case. Whether

an agency is doing an adequate job of identifying environmental

impacts and looking at cumulative effects is going to depend upon

a case-specific inquiry.

And sometimes citizens will disagree about whether they think

that is adequate. That doesn’t mean they are acting in bad faith.

I am not aware of any actual valid suggestions that citizens are

acting in bad faith. I think your constituents, in fact, go to court

only when they think they have rights that seriously are at risk.

I will pass with that.

Mr. GOLDSTEIN. Thank you, Congresswoman Drake. ARTBA

shares your well-founded concerns. And actually if I might just

quote from a grass-roots litigation training manual that was issued

by the Community Environmental Defense Fund where they say

that, quote: In an area devoid of endangered species, impacts to

waterways and floodplains or Federal funding, NEPA may be the

only tool that grass-roots groups have to litigate.

In cases like that, the battle is being fought just to fight a battle.

A project has moved through the process, decisions have been

made, people have been consulted. But people disagree with the decision, and with no other ground, under NEPA, as Chairman

McMorris said, to open up the hearing, with a 37-cent stamp they

can litigate.

In the case that I briefly described in my testimony that ARTBA

is most familiar with is in Las Vegas, a NEPA suit was filed

77

4 years after completion of the final EIS. And here today Mr. Martin just brought up incidences where it has been 6 years.

It is not that litigation shouldn’t occur. Indeed, well-timed litigation during the beginning of the process can save everybody from

a bad project. And I don’t think anybody disputes that projects that

have true problems shouldn’t be completed or shouldn’t be taken

up.

But these things need to be heard early on in the process, not

4 years and not 6 years hence.

Miss MCMORRIS. Thank you. OK, Mr. Udall.

Mr. TOM UDALL. Thank you, Madam Chair. The term ‘‘frivolous’’

lawsuits has been used here rather lightly I think in both oral and

written testimony. And this—I don’t think this is a term that

should be used lightly. Rule 11 of the Federal Rules of Civil Procedure allow courts to discipline attorneys and parties for frivolous

lawsuits.

Mr. Dreher, in your written testimony—and I think both you and

Mr. Yost have spoken to this today—you say to my knowledge—

and I assume you have done some kind of search here—no court

has ever, ever—and we are even underlining ‘‘ever’’ here and emphasizing it—sanctioned a NEPA plaintiff for bringing a frivolous

complaint or for filing a suit for improper purpose, such as a mere

delay.

The only cases that you found in which courts have entertained

motions for such sanctions involved businesses suing under NEPA

to protect purely economic interests; seeking to impede a competitor who has received a Federal permit or a license, for example,

rather than environmental interests. And even those requests have

been denied.

Can anyone on the panel today come forward and give us a case

or cases where the Federal courts have sanctioned anyone under

the frivolous lawsuit provisions of rule 11? If you can’t do it today,

I would ask that question, and I am sure the Chair is going to

allow supplemental testimony, allow you to come forward and give

us a case where everybody is talking about these frivolous lawsuits.

Please, any member of the panel that can tell me where these frivolous lawsuits under rule 11 are.

We have absolute silence here. OK, good. And please come forward later. I would be happy to hear them. We really want to get

to the facts here in this hearing. That is what it is all about.

Mr. MARTIN. Congressman——

Mr. TOM UDALL. I want cases. I don’t want a response. If you

have a list of cases where there has been an abuse under rule 11,

that is what I am looking for; that is, what a frivolous lawsuit is

under the rules.

Mr. MARTIN. Let me express, if I may, my view of that which

might depart from what you have heard or at least the inferences

that apparently you’re drawing. I think it is fair to say that lawyers like professor Dreher do not file frivolous lawsuits.

And I am not here to tell you that the lawsuits that I have defended over the years were frivolous per se. Now, there is a question, though, I think it is simply a policy question, and the question

is whether or not NEPA properly should be used to delay or stop

projects.

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I would go so far as to say that someone who is a plaintiff representing a client in the circumstances that Professor Dreher’s clients were in, who didn’t consider a NEPA action for the purpose

perhaps of delay or stopping a project, might well have a problem

in terms of whether or not he had met his obligation to zealously

represent a client.

I think the real question is whether or not this is the right use

of NEPA as opposed to whether or not it is frivolous per se. So that

is my view.

Mr. DREHER. Mr. Chairman, Chairman Udall, if I could respond

on the same issue; you know, the notion that NEPA can be used

to stop projects. You know, one of the examples that the Task Force

looked at last week was the suggestion that the environmentalists

had drowned New Orleans from a 1977 lawsuit in which a Corps

EIS was found to be deficient. No one disputed a note, by the way,

no one disputed that the Corps’ EIS was in fact defective in that

lawsuit. The real issue I think that the Task Force, if it is serious

about congressional oversight, might want to ask is why would the

Corps not have fixed its EIS in the almost 30 years it had since

1977, if it believes that the measures that it was impeded in putting into place were, in fact, the best way to protect the citizens

of New Orleans. The Corps didn’t think so. The Corps chose a different set of alternatives, of measures after the lawsuit. But the

point here is very simple. NEPA doesn’t stop anything. NEPA can’t

be used to tell a Federal agency that it can’t build a project. The

only thing NEPA does is make sure that the agency fully considers

environmental impacts and tells the public an honest account of

what is going to happen.

Any Federal agency willing to do that can go forward with its

project. And NEPA also doesn’t successfully delay projects—if the

issue—what is the point of delaying a project unless you actually

think that the environmental information you will get when the

agency goes back and acknowledges the problems might be significant enough to change the whole picture?

That is what happened with the ivory billed woodpecker. A citizen lawsuit against a proposal to dredge the Kashe River in Arkansas led to a complete change in public perspective on whether

that project should go forward. The lawsuit was ultimately resolved. The Corps had the ability to build the project. But the information that had come out had changed people’s minds, including

the government itself.

That is what NEPA can and should do. It should make sure that

environmental information is actually considered fairly. And if that

changes people’s minds, that is what Congress wanted. That is

what NEPA was enacted for.

Mr. TOM UDALL. Thank you.

Miss MCMORRIS. I have a question for Mr. Yost, and just thinking—I am thinking in my own district where we have the Colville

National Forest, and we had some serious fires a few years back.

And because of the way the NEPA regulations—the law and regulations are implemented, we lost most of the value of the trees before they could be salvaged. And right next door to the Colville National Forest, the Colville Tribal Reservation also lost trees. But

because they have a different NEPA process, they were able to go

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immediately. And they were able to salvage 90 percent of the value

of the trees; whereas on the Colville National Forest, we lost 90

percent of the value of the trees.

NEPA applies to both. It is implemented differently. And so I

think there are examples where, because of the way it is implemented, it does result in a delay that ultimately can have even a

negative impact on the environment. And that is part of what I

would like to see us address, is if we can implement it better.

And my question—and I will direct it to Mr. Yost, and if anyone

else wants to answer, that is great. We hear some that have suggested the setting of the time limits. And one of your recommendations also is to direct some kind of time limit. Just wanting you to

comment on do you think that should be done by statute; and if

it could be done, without harming the intent of NEPA?

Mr. YOST. I think that that could be done either administratively

or by statute and that—I made two suggestions as to how it might

be done. And as you will recall, the existing CEQ NEPA regulations say that in an applicant situation, the applicant has a right

to insist on time limits. And that is largely disregarded. And I

think that it should not be disregarded.

I think CEQ could institute time limits. And initially it didn’t do

so because a one-time-limit-fits-all doesn’t work when you’re talking about a trans-Alaska pipeline or a single interchange on a highway, you’re talking about things of vastly different magnitudes.

And so what I suggest is a series of presumptive time lines, and

that at the beginning of the process the lead agency says, all right,

we are going with category B, which means it is done in 15 months

or whatever. I think CEQ could do that now. I think Congress

could require them to do it now.

The second and alternative approach is to take the approach

which was taken by the Congress this year in safety in expediting

the NEPA process in transportation with respect to transportation

projects. It is a very carefully thought out statute, which is, I think,

respectful of NEPA’s values. It has the lead agency setting time

lines, bringing the other agencies in early in the process, and using

reports to Congress as a means of making sure that things move

along in a timely fashion; otherwise people have to explain themselves to Congress. That obviously would take a congressional enactment, to generalize what was done in safety, to all the different

agencies. But I think that would also be a reasonable approach to

take.

Overall, everything that I suggested can be done either administratively—it doesn’t need a congressional enactment—except the

matters pertaining to judicial review, such as statutes of limitations and so on.

Miss MCMORRIS. Very briefly.

Mr. DREHER. If I could add one word to that, I think the overwhelming problem agencies face is lack of resources to carry these

mandates out. You can give them the time lines. But if they don’t

have the staff and the money to do it—I worked at EPA; and EPA

of course comments and has official roles under NEPA. And one of

the things that was enormously helpful, Madam Chairwoman, was

TEA-21. TEA-21 allowed the Federal Highway Administration to

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give financial resources to agencies like Fish and Wildlife Services

and EPA, so they could meet their obligations in a timely fashion.

And I had people at the regions of EPA say this is a godsend.

It is not that we don’t want to play. We literally don’t have a body

to send to the meeting. Now we can hire someone.

So I think finding some way to give these agencies resources,

maybe from project applicants, maybe from the wealthier agencies

like the Federal highways, is essential.

Miss MCMORRIS. Does anyone else wish to comment.

Mr. MARTIN. I would like to, if I may, just comment on some of

those issues of delay and some of the things we might want to

think about.

One of the cases that I have litigated, it has to do with coal-bed

methane in Montana—is a case where we had an injunction issued

roughly in late February of this year. The Department of the Interior, the BLM, in order to make up for their perceived deficiency,

is going to do a supplemental EIS. So in addition to the 3 years

that we expanded doing the original EIS, they are doing a supplemental EIS within the agency. That process will consume roughly

20 months’ time.

I think it would be useful if we could find mechanisms BY which

we could limit that period of time.

Now, right now, under the existing regulations—and I am talking about the resolutions both from Interior and CEQ—it would appear as if—at least we are told by the folks from BLM—that a minimum amount of time for any EIS these days is 5 months. And I

am talking about just the comment periods and what not. Realistically what we are told is that if they fast-track an EIS, it might

be 18 months.

They are attempting to fast-track this one. And we are looking

at 20 months. I would submit that particularly in the context of a

supplemental EIS, where we are dealing with, in this instance, one

alternative, and we have a backdrop of 3 years of analysis, perhaps

there ought to be ways that we can shorten this process.

It might be easier, quite frankly, if it were done on a statutory

basis than if it were done on a regulatory basis, in part because

we are dealing not only with CEQ regulations, but we are dealing

with now three decades of decisions that we would confront and we

would have to deal with in terms of being able to support the regulatory decisions that might come down with.

Let’s talk for a moment about whether or not NEPA actually

stops projects. Professor Dreher, I think, makes a very valid point

when he explains that NEPA doesn’t per se say that I can go out,

file a lawsuit, and even if I win that lawsuit, stop that Federal

project. But that is not really the way it can work. And I am not

suggesting that it always works this way.

What happens in the industry that I represent is people make,

on a daily basis investment decisions. They can consider the return

on the equity. And if they are looking at a system where they face

a potential delay of the example that I just described to you, almost

5 years’ time, if they are looking at those sorts delays, then they

may decide that it is inappropriate to invest their money, their limited investment dollars, in the United States to recover natural gas

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in the United States. And they may decide that instead it is more

appropriate to go to a foreign country to invest otherwise.

And that is what happens on a relatively regular basis. And to

that extent I think we do, in fact, have projects that are stopped

by NEPA.

Miss MCMORRIS. Thank you. Mr. Inslee.

Mr. INSLEE. Thank you. I just want to make sure I understand

Mr. Goldstein, Harwood, and Martin. Do you have evidence that a

plaintiff has ever been sanctioned for bringing a NEPA lawsuit

under rule 11?

Mr. MARTIN. No, sir, I don’t.

Mr. INSLEE. Any of the other two gentlemen?

Mr. GOLDSTEIN. No.

Mr. HARWOOD. No.

Mr. INSLEE. Well, that being said, if you were before a court of

law, I think you would be sanctioned under rule 11 for coming before this body and arguing that there is some type of epidemic of

frivolous lawsuits being filed, when you come here and you can’t

point to one single case of a judicial decision that a frivolous lawsuit under rule 11 has been filed.

And I want to just tell you one Congressman’s reaction to this

argument you’re making, with no single case, where one judge of

all the thousands of lawsuits that have been filed, hasn’t found a

single case, it is just stunning to me that we listen to this argument.

Federal judges do find cases frivolous on occasion, and they have

a rather rigorous obligation of lawyers who sign a certification

when they file these complaints. And I am just—I just am flabbergasted that you come before us and argue that there’s some type

of epidemic on this.

Now let me ask you this, for these three gentlemen. Do you think

there is ever any frivolous defenses ever proposed by the government who file answers to these cases and then are slapped around

by the Federal judges because they grievously failed to follow the

rule?

Do you think there is ever any frivolous defenses that are proposed?

Mr. MARTIN. Congressman, if I might respond first to your first

point. I am not here to suggest to you that the lawyers that I have

seen on the other side of litigation that I have defended have filed

frivolous lawsuits.

And I am not prepared to say that I have not testified to that.

And, in fact, I don’t think that is accurate.

If your question is, has there been an occasion when a defendant

has done something frivolous in defense of a NEPA statute, I don’t

know what the answer is.

Mr. INSLEE. Let me ask you this. There is this kind of image that

plaintiffs are around there filing with a shotgun approach these

things to stop the American economy and bring it back to some

kind of Stone Age situation. That is the image that a lot of folks

try to create.

My impression in reading the litigation that does exist under

NEPA, and obviously we would like to eliminate that litigation by

getting the Federal Government to follow the law, and my

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impression is that a significant of the majority of cases filed

against the government are successful.

I look at the litigation up in the Northwest, probably 70, 80 percent of it is successful because the courts conclude that the Federal

Government did not follow the law.

Is there any sort of batting average that exists to indicate that

my perception is inaccurate? Does anyone have any such objective

information?

Mr. HARWOOD. I don’t have any specific information of that particular point. But I do want to take issue with the term ‘‘frivolous

lawsuit’’. I never used the word ‘‘frivolous’’ and I don’t want to be

characterized as somebody who did. I believe that NEPA is a good

and just law and that it is something that is worthwhile and desirable.

There have been a number of lawsuits that—and I am not an attorney, so I am not going to get into case law because that is not

my forte. I am a front line—almost first provider of NEPA services—extension of Federal staff as a private sector consultant.

What I have seen are lawsuits that attack process because they

don’t like the outcome of a decision.

Mr. INSLEE. Do you have a——

Mr. HARWOOD. It is not frivolous in any way. It is a just a difference of opinion.

Mr. INSLEE. My question is do you have any objective assessment

that you can give to this Committee that suggests that the batting

average of plaintiffs is less than 50 percent?

Mr. HARWOOD. I am happy to report that in the work that we

have done, that we have been unanimous in defending against lawsuits.

Mr. INSLEE. Great. Do you have any objective evidence about the

experience across the country?

Mr. HARWOOD. That is not my forte.

Mr. INSLEE. Let me just tell you that I am working on the assumption right now that—and, fortunately, plaintiffs win most of

these cases, because unfortunately most of the cases I have even

seen filed the government fouled up. And to come in now and sort

of say, well, the plaintiffs are winning most of these lawsuits, and

as a result of that we should take away their ability to file them,

to me doesn’t appear to be the right approach.

To me, a better approach is to work to find a way that the government can follow the law so we don’t have to end up in these

lawsuits. And I have—is there any suggestion from any of you on

how we can accomplish that?

Mr. GOLDSTEIN. Well, I would like to briefly respond, and I don’t

think—at least—and I would also like to mention that, you know,

I didn’t use the word ‘‘frivolous’’ in my oral or written testimony.

And I didn’t mean to infer under rule 11 that any of these things

are frivolous, and also that there are instances—and I believe that

what you’re referring to, if plaintiffs are successful and in instances

where NEPA litigation is brought in the early stages of a project,

in some cases it might be best for everybody, because then the

project will take a different course or a different project or alternative will properly be considered.

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But in the experiences that ARTBA has had where a lawsuit has

been filed 4 years after construction is begun, and then halted construction for an extra year, and so there you have a half completed

highway project which is bad for the environment, bad for the economy.

I think the process changes we are suggesting, such as alternative dispute resolution, possibly expansion on the front end of

the public comment period, these are all things that would raise

these issues at an earlier point in time. And if indeed litigation is

the end result, at least it occurs earlier so that it doesn’t provide

as much delay when a process is already begun.

Mr. INSLEE. If the Chair would allow one follow-up question.

Mr. INSLEE. If the Chair will allow me just one follow-up question in response to what Mr. Goldstein said.

I’m holding your question, and it says, quote—this is testimony

by Nick Goldstein, November 17, 2005 on behalf of the American

Road Transportation Builders and Association. It says, quote, ‘‘The

area of the NEPA process which would yield the greatest reduction

in project delay is frivolous and malicious litigation which subverts

the NEPA process,’’ close quote.

Now, are you retracting that testimony, or is there something I

don’t understand?

Mr. GOLDSTEIN. No, I’m not. And actually, if you will notice, I

didn’t quote rule 11. And I believe ‘‘frivolous’’ can be used in a context where it’s not invoking rule 11. But some of this litigation,

when it occurs years after a project has already begun and years

after construction has begun, after environmental impact statements have been gone over and have been discussed with the public and with agencies, after projects have already begun and then

litigation is brought up between 4 and 6 years hence, then by some

parties I believe it could fairly be characterized as malicious or

even frivolous. But not in the rule 11 context. And please don’t—

I did not mean to infer that rule 11 has been violated in my testimony, which is why I didn’t cite to it.

Mr. DREHER. Mr. Inslee, if I could just say one thing. I mean,

with the prime example that Mr. Goldstein has offered with what

amounts to frivolous but perhaps not frivolous litigation, is a case

in Las Vegas involving a road in which the plaintiff’s allegation is

that the Federal agencies involved never considered the impact of

air toxins emitted by cars on elementary school children in schools

adjacent to the proposed expanded highway. They never thought

about the impacts on the public health of children.

Now, if that’s not an issue that NEPA ought to consider, I don’t

know what is. And it’s true, they never considered it. And, moreover, the case was brought 2 years before the agency itself said we

intend to let contracts for construction, 2 years before the agency

said we will let contracts for construction.

Finally, it was settled with an agreement to put air monitors in

these schools and to try to actually do things like put emissions

controls on diesel buses. So it was settled in a way which would

actually protect school children. I think that’s a success story for

the American public.

Mr. INSLEE. Thanks, Madam Chair, for your courtesy.

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Mr. YOST. Mr. Inslee, if I could also briefly respond to what you

had said. It seems to me that your underlying assumption—which

nobody has rebutted on this panel—that since a substantial portion

of NEPA litigation is successful on the part of plaintiffs shows that

there are failings on the part of agencies, and the Chairwoman’s

concern—which also has not been rebutted by anybody on the

panel—to the effect that the fear of litigation itself has impacts.

But both of those can be addressed by measures to ensure that

the Federal agencies are doing better jobs of implementing NEPA,

that they are devoting the resources necessary to do the best job

possible, that they are devoting the legal resources to see that they

are bulletproofing their documents to the best extent possible so as

to have defensible documents in court.

And so insofar as there is validity in both of your concerns, I

think the answer is the same answer.

Mr. INSLEE. Thank you.

Miss MCMORRIS. Mrs. Drake.

Mrs. DRAKE. If I could, just to follow up on what we were talking

about before when we talked about TEA-21. I just wanted to ask

Mr. Goldstein, what about the new highway bill? Do you believe

that what’s in the new highway bill, these type of provisions are

appropriate, or do they weaken NEPA?

Mr. GOLDSTEIN. No. I actually think that they are entirely appropriate and could provide some very useful guidance for the

Committee, particularly the statute of limitations, the 180-day statute of limitations. And also some of the—and I think what’s more

universally agreed upon on this panel are some of the recommendations for streamlining projects that can be found in the transportation bill; requiring agencies to speak together and to conduct all

their reviews beforehand so that you are not conducting review A

and then review B and then review C, but coordinating them

among the agencies. This could cut years off of the process for

projects.

Mrs. DRAKE. Madam Chairman, I just want to say for the record,

I didn’t hear people talking about frivolous lawsuits across the Nation. What I’ve heard people talking about are delays that are

caused because people use NEPA, just like we heard testimony

from an environmental group in Norfolk that said this is how we

use NEPA, and what we just heard Mr. Goldstein read today. And

so I think that’s our concern, is not frivolous lawsuits, but lawsuits

that are entered simply to cause a delay. And then we don’t know

the impact of people—I think Mr. Martin mentioned it—who just

stop. You know, they can’t afford to continue doing this. Or the

people that end up going to another nation to open their business

because they know in 18 months they can be up and running rather than going through all of this.

So thank you, Madam Chairwoman.

Mr. MARTIN. Madam Chairwoman, if I might just elaborate on

that just briefly. Let me give you an idea of some of the impacts

of a delay of the nature that I just described. And at the risk of

focusing on that which I am most familiar with, i.e., the case that

we’re litigating at this point in time, we have affidavits that were

filed in this case that deal with this particular injunction. They

talk about as much as an $18 million loss for a particular company

85

in northern Wyoming that will not be able to access its Federal

leases. Now, when I’m talking about an $18 million loss, I’m not

talking about a loss to BP or Shell or Marathon or one of the large

producers of oil and gas in the United States; I’m talking about a

relatively small company in Sheridan, Wyoming with 19 employees.

This is very significant for companies like that.

I’m aware of an individual in the oil and gas business who had

to give up on a project because of a NEPA lawsuit and a NEPA injunction. And, yes, it’s true; it may well be something that is only

a delay; it’s not something where we have a statute that says you

must stop that project and you are not allowed to go forward with

it. But the reality is that for businesses who are concerned about

these investments, a delay of this nature can be the death nail to

a project.

Let me add just, you know, again to talk if I may about the litigation with which I’m familiar. We had projections, affidavits that

were filed, where we have estimates of roughly $6 million in lost

tax revenues and government royalties that were occasioned by the

delays that I’m speaking of. So, in fact, these can be significant impediments. And, by the way, I don’t think they are necessary impediments. I share my old friend Mr. Yost’s view that, in fact, there

are ways that we could simplify and clarify this process so that we

wouldn’t lose the essence of NEPA but perhaps what we would do

is avoid these delays that are so hard on companies and, frankly,

hard on communities and States as well.

Miss MCMORRIS. OK. I will come back to you, Mr. Udall. Are you

ready to go? OK.

Mr. TOM UDALL. Yes, Madam Chair. Thank you very much.

Mr. Dreher, in your testimony under—I guess on page 10 under

section 5, you have a section titled ‘‘Reforms to Improve the Act’s

Implementation.’’ could you talk a little bit about the first one

under there of making mitigation promises mandatory?

Mr. DREHER. I would be happy to. And I that’s something that

there’s some agreement with on this panel. I mean, one of the key

aspects of NEPA is that it encourages agencies to look at ways that

they can moderate their impact on the environmental. That’s one

of the key points about alternatives analysis: Look for better ways

to accomplish their purposes with less impact. And when agencies

find ways, particularly when they find mitigation that would appear to reduce impacts to the point where they are publicly acceptable, it will help the project get approved. And then, moreover, it

may even mean that they don’t have to do a full EIS; they issue

a FONSI, if you will.

The problem is that a lot of times Federal agencies don’t follow

through on that mitigation. There aren’t really good studies on this

in the NEPA context. There are pretty good studies in the 404 context. The Corps of Engineers, it turns out, rarely actually implements and enforces mitigation requirements for its 404 permits,

leading to an 80 percent loss of wetlands rather than a net gain.

And the problem is, therefore, that there is a hole in the NEPA

bucket. The public thinks a project is going to be OK and they

think that mitigation is going to be effective, and it doesn’t get

done.

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Now, agencies can as a matter of internal practice, without any

need for congressional direction, establish rules saying that they

will make mitigation promises binding, they will put them as part

of the project to begin with, they will require them to be funded,

and that they will require project officials to actually carry that

mitigation out and monitor it. The Department of the Army has

done that, and I commend them for that. They have actually taken

responsibility for mitigation. And I think every agency ought to do

that. Mitigation is so important to the American public and to the

purposes of NEPA that it shouldn’t be left in the lurch.

Mr. TOM UDALL. And you also hit on the second thing that I

wanted to ask about, is the monitoring. Could you—you mentioned

it there, but you have it as a whole section, require monitoring of

project impacts. Could you talk a little bit about that?

Mr. DREHER. Well, the problem about monitoring, of course, goes

to the very issue of whether or not agencies are—the impacts of

their actions turn out to be what they predict when they issue an

EIS. NEPA should be a living process; I think Chairman

Connaughton thinks that, I think Mr. Yost thinks that. And one of

the key things you need to do is to find out if the real impacts on

the ground are the ones you predicted. And if they are more than

that, you may want to take additional steps to mitigate them. If

they are less than that, it may teach you that in fact you are confident that your processes are working well.

So monitoring is essential to validate the whole NEPA process.

But agencies, as you might imagine, with limited funds, find it the

last priority. If they finish an EIS and they get approval to build

a project, they go forward. And I think everybody involved thinks

that more monitoring is necessary. CEQ has been asking for this

for decades.

Mr. TOM UDALL. Thank you. And let me thank the entire panel

for your testimony. I think there was very valuable testimony

today and I think really helps the Task Force. Thank you very

much.

Mr. HARWOOD. Mr. Congressman, I would just like to second.

And one of the things that Mr. Dreher and I do strongly agree on

is the monitoring the compliance of mitigation commitments. And

I think I cited in my written testimony an example of where what

became a centerpiece of environmental consideration for a new

headquarters project ended up, through the construction process,

was not retained. And as someone who takes great pride in predicting the future in terms of writing environmental documents,

when that future does not come true, it is very disappointing. So

I think ongoing mitigation, monitoring and oversight, and compliance ensuring measures are very needed.

Miss MCMORRIS. Good. Thank you. Just for everyone’s information regarding these rule 11 frivolous lawsuits, there was some concerns raised today, some questions asked, and we are going to try

to find out some more information and get some more background

so that—for the Task Force’s information.

Mr. TOM UDALL. Madam Chair, on that issue, are you going to

tell the panelists a period of time of keeping the record open on the

issue of them putting anything in?

Miss MCMORRIS. Yes. Definitely.

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Mr. TOM UDALL. On this rule 11 issue. Thank you.

Miss MCMORRIS. It is true that we have heard the comments

about resources to agencies as we’ve been at other places around

the country. I think somehow we have to figure out a way, though,

that it is money well spent, too. We’ve also heard where it’s not

just a matter of how much paper, how many—you know, how much

paper you fill out or how many—that’s not the measure. And it’s

a challenge to figure out a way to actually end up with a better

document in the end, not just a larger document. So I hear what

you are saying. But just recognize I think we need to take it a step

further and figure out how we can actually set up the incentives

so that it’s a better document ultimately.

I wanted to ask Mr. Harwood specifically, just because you have

the 20 years of experience with NEPA and the NEPA-related documents, if you could just shed some light on what changes you have

seen in 20 years. Because part of the confusion, I think, we hear—

I’ve heard from agencies that NEPA’s implemented differently

among the agencies, which I can imagine as, when you are trying

to put together a project, that causes confusion. The number of lawsuits through the years, some probably have helped define; some

have I think ultimately caused more confusion. And I just wanted

you to speak to how the documents have changed over the last 20

years and what you’ve seen as far as implementation of NEPA.

Mr. HARWOOD. Thank you. That’s actually an excellent question.

Like the others here, one of the things that’s happened is the documents have gotten longer, they’ve gotten more extensive. In many

respects they’ve gotten better. I think we’ve gotten a little more focused on core issues and the mitigation measures that reduce impacts below a level of significance. I think the agencies have gotten

more cautious, at the same time probably related measures, agency

expertise with respect to NEPA, has gotten a lot less rigorous.

There’s a lot less rigor in terms of staff awareness and ability to

use NEPA to make decisions. So there’s less training, it appears,

to staff. I don’t know that for a fact, but that’s what it seems like.

They seem less prepared to deal with NEPA, and that makes them

a little bit more cautious. And that leads to some of the longer documents where you are not focusing on the core issues, the ones

that are addressed at scoping or the ones that you know through

coordination with resource agencies are the key kind of things to

focus on.

There have been some attempts to shorten documents by trying

to dismiss and eliminate resource disciplines that aren’t the focus

of the document, but I think that’s—the length of time, the length

of the documents is probably the biggest problem.

And it’s unfortunate that the other Congressman has left, but we

have seen more challenges by citizens who end up not bringing

lawsuits necessarily, but more threats of lawsuits. And I’m not getting into rule 11. I don’t really know what that means. I’m not interested in that. I’m interested in—I don’t represent environmental

groups or private sector. I represent and work as an extension of

Federal staff. So I felt like I should be sitting more in the middle

of this table. And that balances what we are always trying to do,

and I think that the ability to work with the Federal agencies really depends on the agency and on the individuals involved. And

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there are some clear, dedicated, wonderful Federal employees that

are really a treasure to work with. And I think those are the ones

that we like to work with. But it’s—they’re few and far between.

And I think that really gets to the heart of what we are talking

about: a place to appeal to another level prior to intervention or

legislation, an administrative level where—and certainly the

Department of Justice is one way to do that prior, because they

would be part of a defense of a NEPA document. But we think,

really, CEQ can nip a lot of things in the bud. We’ve found that

to be the case in the past, and we kind of strongly support them

as an independent agency, a more robust and well-funded agency.

Miss MCMORRIS. Thank you.

Mr. DREHER. Madam Chairwoman, at the great expense of delaying this, can I just point out one single fact? CEQ has one FTE

devoted to NEPA. If there is one thing that the agency needs, it’s

more resources to help the other agencies do their jobs well.

Mr. MARTIN. And if I might. And I apologize, and I recognize that

this is more elongated than any of us had planned. But let me say

that we’ve seen staffs at BLM have to basically expend huge

resources to do an EIS, and at the same time they are the same

people who have to process our applications for permit to drill. So

I would like to, if I can, echo that point of view. If we could get

more personnel, I think that’s something that could be very helpful

to everyone.

Miss MCMORRIS. Once again, let me say thank you to all of you

for being here, for being here for several hours. I think all of your

testimonies have been very helpful, and I appreciate just your honest perspectives with us and your suggestions as we move forward.

There may be other questions that the members of the Task

Force would like to submit to you in writing, and I would appreciate a response in writing for the record. The record will stay open

for 10 days. With that, the meeting is adjourned.

[Whereupon, at 1:35 p.m., the Task Force was adjourned.]

[NOTE: Information submitted for the record has been retained

in the Committee’s official files.]

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