Bush Wants To Speed Up Environmental Reviews

by J.R. Pegg

NEPA, signed by President Richard Nixon in 1969, orders the federal government to analyze the environmental impact of proposed actions, consider alternatives and inform the public of its assessments and decisions.

A report detailing the recommendations for changing how agencies abide by the law was issued by a White House task force spearheaded by the Council on Environmental Quality (CEQ), which was created as part of NEPA.

The CEQ is tasked with ensuring that federal agencies meet their obligations under the Act -- it does not have the authority to change the law, but can alter how it is administered.

Under the leadership of CEQ Chairman James Connaughton, the White House formed the NEPA task force in July 2002 to focus on modernizing the NEPA process, which the administration believes often needlessly delays infrastructure projects, timber sales, forest management and natural resource development.

A primary issue considered by the task force was what constitutes a "categorical exemption" under the law. Actions that are deemed not to have a significant impact on the environment can be granted this exemption from NEPA requirements and compliance.

The task force said that agencies interviewed for the report find the process for approving categorical exemptions "cumbersome and ill defined" and that there is "some confusion" about the level of analysis and documentation required to use an approved categorical exemption.

The task force recommended that the CEQ clarify its guidance to ensure compliance is consistent and to address what documentation is required at the time a categorical exemption is developed.

In addition, it calls on agencies to develop categories for categorical exemptions based broadly defined criteria -- projects that fall into one of these categories would automatically be excluded from NEPA.

The report says agencies should periodically review and update these categories and the procedures for adding, revising or deleting categorical exemptions.

The recommendations all point towards streamlining the process for categorical exemptions -- a move that many support.

But environmentalists, who believe the Bush administration has little time for environmental protection, worry the categorical exemption proposals will enable agencies to bypass NEPA for actions that have clear environmental impacts -- such as timber sales.

They also fear that recommendations in the report will lead to the scaling back of the required analysis of an activity's environmental impact.

The report says the agencies believe there is a lack of guidance for the required scope and analysis of environmental assessments and that this has lead to "inconsistent application of the NEPA process."

It recommends the CEQ issue guidance to clarify that the "size of environmental assessments should be commensurate with the magnitude and complexity of environmental issues, public concerns, and project scope" and to describe the "minimum requirements for environmental assessments."

Also of concern to environmentalists is the recommendation that the CEQ clarify the "requirements for public involvement, alternatives, and mitigation for actions that warrant longer environmental assessments including those with mitigated findings of no significant impact."

If enacted, the recommendations would weaken the requirements for environmental assessments, critics say, and would allow federal agencies to draft such environmental assessments in place of more detailed environmental impact statements, which require greater public participation in the process.

"The Bush administration's 'streamlining' strategy for NEPA would amount to steamrolling environmental protections and public input," said Sharon Buccino, a senior attorney with the Natural Resources Defense Council. "'Modernizing' the key law that ensures public participation in federal environmental policy is a code word for shutting the public out."

The White House cautioned against the position that it is seeking to roll back NEPA, but there is evidence that the administration is keen to relax the law.

A report issued in May 2003 by Defenders of Wildlife and the Vermont Law School's Clinic on Environmental Law and Policy looked at all 172 NEPA cases decided by federal courts in the first two years of the Bush administration.

It found that in more than half of these cases, the administration presented arguments to weaken the application of the statute.

The Bush administration's legal interpretations of NEPA, the report says, frequently support timber and oil companies and developers who seek financial gain from public resources.

The report notes that these arguments were rejected by federal judges in 78 percent of the cases.

In addition, the administration has enacted administrative rules that weaken NEPA compliance for some forest thinning projects, and has pushed for similar legislative changes for transportation projects, energy development on federal lands and forest management. The legislative changes have generally been supported by congressional Republicans, but none have yet made it into law.

Other recommendations in the 90 page report include the creation of a handbook in consultation with federal agencies to affectively integrate the NEPA process with Endangered Species Act Section 7 consultation, National Historic Preservation Act Section 106 coordination, Clean Air Act conformity requirements, and Clean Water Act total maximum daily load and Section 404 requirements.

It also calls for the establishment of an additional position to provide technical NEPA process consultation and agency guidance, as well as annual NEPA legal forums to discuss the legal developments regarding the law.

In addition, the task force recommends that the CEQ to develop a handbook that provides existing guidance identified by topic areas and supplemented as new guidance is issued as well as

The White House says it will convene several public meetings to gather public input on its recommendations.