Imperfect protection: NEPA at 35 years - Spheres of Influence

Environmental Health Perspectives, April, 2004 by Harvey Black

Passed by Congress even before the establishment of the U.S. Environmental Protection Agency, the National Environmental Policy Act (NEPA) first gave notice of national concern about the human impact on the air, land, and water. The 1969 passage of NEPA was a turning point for how the federal government considered the environment in its decision-making process. Joseph DiMento, a professor of social ecology and management at the University of California. Irvine. calls NEPA "an environmental Constitution." Ron Bass, a regulatory, and legal specialist with the environmental planning and management firm Jones & Stokes, says, "NEPA introduced what was at the time a fairly revolutionary process, whereby the whole government decision-making process was opened up in a way that it was never opened up before; Agencies had to study environmental impacts, they had to disclose them, and they had to let the public in." The legislation also established the three-member Council on Environmental Quality (CEQ) to administer NEPA.

So significant is the law in its change in government behavior that more than 100 other countries .have adopted NEPA-like statutes. Fifteen states, the District of Columbia, and Puerto Rico also have statutes that mirror--and sometimes fortify--NEPA's requirements at the state level.

Yet, NEPA is far from perfect in its protection of the environment. As the act marks its 35th birthday, critics and proponents alike are taking a look at whether NEPA is actually fulfilling its intended purpose, or whether it's all talk and no action. Among the concerns are the length of time required to assess the environmental impact of a project, the fact that the law doesn't actually require that the environment be protected, and the presence of efforts to relieve agencies of the NEPA requirement to explore alternatives to proposed projects and actions.

Assessing Impacts

In pre-1969 thinking, says Bass, government decisions on whether to pursue proposed projects were based on two factors. "One was the technical, and one was the economic. Could it be built technically? Did we have the money? If so, we built it," he says. With NEPA, environmental factors earned a place at the decision-making table.

That place at the table translates into agencies preparing a preliminary environmental review of a proposed action--examining, for example, what impact a project such as building a highway, dam, or airport might have on the environment. Agencies must include a statement of such effects along with any proposal for legislation or other major federal action that would significantly affect the quality of the human environment. The statement can take the form of a categorical exclusion, an environmental assessment, or an environmental impact statement (EIS), which NEPA defines as detailing "the environmental impact of the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, [and] alternatives to the proposed action."

EISs are reviewed and analyzed by parties concerned about and affected by the action. An environmental assessment can provide the basis for preparing an EIS, or it can lead to a finding that the proposed action will not have a significant environmental impact, meaning that the agency need not prepare an EIS.

The EIS figures in to much of the discomfort surrounding NEPA. For one thing, review of EISs is highly labor-intensive. In 1996, the most recent year for which there are data, the average EIS was 570 pages long, says Sanjay Narayan, a staff attorney with the Sierra Club. "The law has been treated like a paperwork statute. Agencies disclose and disclose," says Narayan.

In addition, as important as an EIS may be, in and of itself, it may not be enough to protect the environment, notes Thomas Dawson, an assistant attorney general and director of the environmental protection unit of the Wisconsin Department of Justice. "NEPA does not dictate a certain result, namely environmental protection," he says. In Narayan's view, actually protecting the environment comes about only through sheer political will.

Other NEPA critics point to prolonged disputes over EISs as hampering the act's effectiveness. H. Sterling Burnett, a senior fellow with the National Center for Policy Analysis, says that groups or individuals displeased with a NEPA environmental impact analysis can challenge it in court indefinitely. "The law ... makes it almost impossible for projects to go forward," he says.

George Albright, chief of the Environmental Analysis and Liaison Section of the Wisconsin Department of Natural Resources, agrees with this assertion. "It is an element of the decision-making process that is ripe for misuse," he says.

Yet the evidence for these claims appears to be mixed. A 31 August 2001 letter to congressional leaders on forest-related committees from the General Accounting Office (GAO) reported that in fiscal year 2001 only 1% of 1,671 U.S. Forest Service projects in reduce hazardous fuels (such as brush and small trees) that had accumulated on federal lands had been appealed after the Forest Service completed its environmental analyses. Both environmental groups and private industry were among the challengers.