NEPA in a knot; Amid struggles with public process, environmental protection, and governmental efficiency, the question remains: Does the landmark law need a facelift? - Perspectives - National Environmental Policy Act

American Forests, Summer, 2003 by Bryan Foster

NEPA--the National Environmental Policy Act--has been called the Magna Carta of environmental laws because its passing on January 1, 1970, inspired the Clean Air Act, the Clean Water Act, and the Endangered Species Act. NEPA's two components, 'sunshine' and 'reflection,' open agency decisions up to the public and force agencies to analyze significant environmental impacts before they act.

Say NEPA to an average citizen and it sounds like mumbling. But ask a Forest Service employee, and you'll hear that that no other law so influences day-to-day work. By its own assessment, the Forest Service spends about 40 percent of its annual budget on planning, including developing NEPA-directed Environmental Impact Statements (EISs) and Environmental Assessments (EAs), along with forest management plans and other reports. Altogether the Forest Service prepares more environmental reports than any other federal agency--about one EIS and 20-30 EAs per national forest per year.

This year the USFS is considering its most extensive changes ever in how it implements NEPA. It has proposed minimizing NEPA reporting for small timber harvests, thinning related to fire protection, and forest planning. Further changes are likely this summer when the White House Council on Environmental Quality (CEQ), which sets NEPA regulations, releases its report on streamlining NEPA analyses.

"There's certainly some room for improvement in the NEPA process," says Sharon Buccino, an attorney with the environmental nonprofit Natural Resources Defense Council (NRDC). But she warns "so far this administration has tried to circumvent NEPA rather than improve its use for public participation and environmental review."

PROBLEMS

Stories of poor NEPA implementation follow a familiar pattern: Agencies spend millions on a NEPA study, the study is appealed, the study is revised, the study is appealed again, the study is revised again, then the study is finally implemented in a weary and tattered form.

There are two likely reasons for these problems: 'show' or 'slow.' Either the agencies put on a performance without genuinely considering environmental impacts and involving the public, or the process itself has become too slow and expensive without clear guidelines on how agencies should produce the documents and how courts should review them.

Nonetheless, nearly everyone agrees that NEPA has been an effective law, deterring furtive and myopic decisionmaking among agencies. "NEPA really does make agencies think more carefully about what they are doing and try to lessen their impacts," says Lucy Swartz, a program manager for Battelle Memorial Institute, a consulting group that has written NEPA documents for federal agencies.

Last year CEQ chairman James Connaughton convened a task force of representatives from nine agencies "to improve and modernize NEPA analyses." The committee's report, due out this summer, will suggest more efficient ways for agencies to implement the law. "Since NEPA hasn't been looked at seriously in nearly a decade, it's important for agencies like the Forest Service to examine and revise it today," says USDA Undersecretary Mark Rey. "We have to find ways to keep NEPA alive and vibrant and relevant."

The Forest Service is already trying a number of projects to update the NEPA process. "We're better off with NEPA than without it," says Pam Gardiner, Forest Service deputy director for ecosystem management coordination./ "But we're trying to simplify our procedures while still considering environmental impacts and engaging the public."

"The biggest change I've seen in NEPA over the last decade is the increasing use of EAs over EISs," says Diana Webb of Los Alamos National Laboratory; in 1990 she helped put together NEPA regulations for the Department of Energy. Agencies have turned to EAs because they have fewer requirements, but the resulting documents have been 10 times the suggested size of 15 pages.

"The EA is supposed to be a quick analysis of proposed actions where there's no significant environmental impact," says the USDXs Hey. "It's not supposed to be a poor man's version of an EIS without as much public review."

STANDARD TEMPLATES

Five national forests are now developing a standard template for EAs. "Our HA will be about 20 pages," says Kathryn Hardy. district ranger of the Eldorado National Forest. The forest reduced the length of its documents by citing references rather than explaining them in detail and by focusing the report on the most pressing environmental impacts. The document will still be backed up by an extensive file of specialists' reports.

"We're also trying to make the language in the EA as clear as possible," Hardy says. Attorneys reviewing the documents have replaced jargon like 'treating stands' with 'cutting trees' and 'deploying fire fighting resources' with 'fighting fires.'

The Valles Caldera Trust manages an 89,000-acre verdant forest and meadow sunk in the ring of an ancient volcano in northern New Mexico. In 2000, the Trust was established as a federal corporation, similar to the Presidio Trust in California, with a nine-member board working towards financial self-sufficiency. The Trust proposes to start its NEPA process early, so the public can comment on objectives before the Trust even proposes a list of projects and alternatives. "We want to get understanding with the public at the conceptual phase," says Executive Director Gary Ziehe. "We want to get the public involved in the 'why' of planning so we can then come up together with the 'what' of action."