<DOC>
[105th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:47866.wais]
PROBLEMS AND ISSUES WITH THE NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
=======================================================================
HEARING
before the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
MARCH 18, 1998, WASHINGTON, DC
__________
Serial No. 105-102
__________
Printed for the use of the Committee on Resources
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COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California
JAMES V. HANSEN, Utah EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California ENI F.H. FALEOMAVAEGA, American
WAYNE T. GILCHREST, Maryland Samoa
KEN CALVERT, California NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto
WALTER B. JONES, Jr., North Rico
Carolina MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona SAM FARR, California
JOHN E. ENSIGN, Nevada PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon ADAM SMITH, Washington
CHRIS CANNON, Utah WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania DONNA CHRISTIAN-GREEN, Virgin
RICK HILL, Montana Islands
BOB SCHAFFER, Colorado RON KIND, Wisconsin
JIM GIBBONS, Nevada LLOYD DOGGETT, Texas
MICHAEL D. CRAPO, Idaho
Lloyd A. Jones, Chief of Staff
Elizabeth Megginson, Chief Counsel
Christine Kennedy, Chief Clerk/Administrator
John Lawrence, Democratic Staff Director
C O N T E N T S
----------
Page
Hearing held March 18, 1998...................................... 1
Statement of Members:
Chenoweth, Hon. Helen, a Representative in Congress from the
State of Idaho............................................. 3
Prepared statement of.................................... 4
Letter of Robert S. Lynch................................ 79
Texas ``blowdown'' letters, press releases and reports... 227
Cubin, Hon. Barbara, a Representative in Congress from the
State of Wyoming........................................... 2
Prepared statement of.................................... 2
Pallone, Hon. Frank, Jr., a Representative in Congress from
the State of New Jersey.................................... 5
Prepared statement of.................................... 6
Chronology of Port Newark/Elizabeth Dredging Permit...... 216
Statement of Witnesses:
Allen, Randy, General Counsel, River Gas Corporation,
Northport, Alabama......................................... 50
Prepared statement of.................................... 79
Byrne, Michael J., Vice Chairman of the Federal Lands
Committee, National Cattlemen's Beef Association,
Washington, DC............................................. 51
Prepared statement of.................................... 130
Caldwell, Lynton K., Professor of Public and Environmental
Affairs, Indiana University, Bloomington, Indiana.......... 65
Prepared statement of.................................... 88
Chu, Dan, Executive Director, Wyoming Wildlife Federation,
Cheyenne, Wyoming.......................................... 54
Prepared statement of.................................... 86
Geringer, Hon. James, Governor of Wyoming, Chairman,
Interstate Oil and Gas Compact Commission, Oklahoma City,
Oklahoma, and Vice Chairman, Western Governors'
Association, Co-chair, Great Plains Partnership............ 7
Prepared statement of.................................... 105
Hutchinson, Howard, Executive Director, Coalition of Arizona/
New Mexico Counties for Stable Economic Growth, Glenwood,
New Mexico................................................. 67
Prepared statement of.................................... 206
Leftwich, Tim J., Senior Environmental Scientist, Principal,
GL Environmental, Inc., Rio Rancho, New Mexico............. 62
Prepared statement of.................................... 149
Loesel, Jim, Roanoke, Virginia............................... 64
Prepared statement of.................................... 202
McGinty, Hon. Kathleen, Chair, Council on Environmental
Quality, Washington, DC.................................... 11
Prepared statement of.................................... 113
Norton, Hon. Gale, Attorney General, State of Colorado,
Denver, Colorado........................................... 14
Prepared statement of.................................... 123
Scarlett, Lynn, Reason Public Policy Institute, Los Angeles,
California................................................. 56
Prepared statement of.................................... 140
Additional material supplied:
American Farm Bureau Federation, Washington, DC, prepared
statement of............................................... 102
American Forest & Paper Assoc., prepared statement of........ 264
American Petroleum Institute, the Natural Gas Supply
Association, the Independent Petroleum Association of
America, the Mid-Continent Oil and Gas Association, the
Western States Petroleum Association, and the National
Ocean Industries Association, prepared statement of........ 100
Borrone, Lillian C., Director, Port Commerce, The Port
Authority of New York & New Jersey......................... 92
Browner, Carol M., Administrator, Environmental Protection
Agency, Federico F. Pena, Secretary, Dept. of
Transportation, Togo D. West, Jr., Secretary, Department of
the Army, prepared statement of............................ 94
East Texas Wind Storm--Sabine National Forest................ 222
Green River Basin Advisory Committee, NEPA Streamlining
Recommendations............................................ 277
Penelas, Hon. Alex, Mayor, Miami-Dade County, prepared
statement of............................................... 99
Problems and Issues with the National Environment Policy Act
of 1969.................................................... 223
Rocky Mountain Oil & Gas Association, prepared statement of.. 96
The National Environmental Policy Act Impact on Public Lands
Mineral Development and Options for Reform................. 164
Zelms, Jeffrey L., President & CEO, Doe Run Resources Corp.,
prepared statement of...................................... 269
HEARING ON PROBLEMS AND ISSUES WITH THE NATIONAL ENVIRONMENTAL POLICY
ACT OF 1969
----------
WEDNESDAY, MARCH 18, 1998
U.S. House of Representatives,
Committee on Resources,
Washington, DC.
The Committee met, pursuant to notice, in room 1324,
Longworth House Office Building, at 11 a.m., the Hon. Don
Young, Chairman, presiding,
Members present: Representatives Young, Chenoweth, Cannon,
Gibbons, Hill, Hinchey, Pallone, Pombo, Thornberry, Cubin,
Hansen, Saxton, Vento, Crapo, and John.
Chairman.Young. The Committee will come to order. Today we
are gathered to examine problems and issues with the National
Environmental Policy Act of 1969.
NEPA is prime for an oversight hearing. It is the product
of 1960's thinking, with no legislative or regulatory change to
speak of over 20 years. NEPA is experiencing many problems.
This White House's neglect, abuse, and avoidance of its NEPA
responsibilities are serious issues.
The Council on Environmental Policy was created by NEPA to
administer the Act. Ms. McGinty is now the only member of the
poorly named council. Just a few weeks ago, Ms. McGinty, you
told Congressman Lewis, who is the Chairman of your
Appropriations Subcommittee, that NEPA reinvention was your top
priority; yet, you have only a tiny fraction, of any, of your
staff working on this project.
Specifically, Ray Clark is supposed to be your NEPA man,
but he's spending his time now on your controversial American
Heritage Rivers program.
When he was in Montana last week, Mr. Clark got quite a
feel for the distaste that many of our constituents harbor
about that program, which the CEQ is trying to orchestrate. You
told Congresswoman Carrie Meek a couple of years ago that the
Homestead Air Force District in her Miami District would be
free of its NEPA problems under your oversight. This
Administration said Homestead was on the fast track to gainful
use. Today Homestead lies barren. The local economy is
suffering. We have testimony from the Mayor of Miami-Dade
County as to these facts.
You told members of the Utah delegation to Congress that
this Administration was not moving forward on any plans for the
monument designation in Utah. By subpoenaing your e-mail, our
staff has documented that not only did you purposely keep
members of the Utah delegation in the dark, but you also worked
to designate the monument as an end-run around the National
Environmental Policy Act that you're supposed to be
administrating.
Now you're working on a moratorium on the roads in national
forests. We have seen that you've chosen to circumvent a full
NEPA examination of the issues by using an interim rule and you
have again thumbed your nose to this Congress and to public
comment.
This Administration has demonstrated that it has one set of
standards for itself, and another for the common citizen, our
constituents.
I'm here to tell you that this Administration is not above
the law or this Congress. Again, this Act has not been
reviewed, it has neither been looked at nor had any oversight
for the last 20-some-odd years. It is time we find out what
NEPA is doing, where we're headed, and are we going to make
this work for the people of America. Or, is it going to
continue to be a process in which some here are heard and some
are not heard.
I think it's very unfortunate that we have now seen that
much of the public is not heard.
Let us go to the opening statement by Ms. Barbara Cubin at
this time and the introduction of her one witness, please.
STATEMENT OF HON. BARBARA CUBIN, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF WYOMING
Ms. Cubin. Mr. Chairman, I will submit my opening statement
to the record. I was just looking for it and I don't want to
hold the Committee up.
But I am honored to introduce our first witness; that would
be Governor Jim Geringer from the great, greatest State of
Wyoming. Jim and I have been friends for a long time. We served
in the Wyoming State Legislature together, first of all, in the
State House and then in the State Senate.
Jim is very knowledgeable about all of the issues that are
in front of this Committee and it is a great honor for me to
introduce my friend and my Governor, the Honorable Jim
Geringer.
[The prepared statement of the Hon. Barbara Cubin follows:]
Statement of Hon. Barbara Cubin, a Representative in Congress from the
State of Wyoming
Mr. Chairman, thank you for holding this oversight hearing
today on the problems and issues associated with the National
Environmental Policy Act (NEPA). I'm pleased to see that my
friend and colleague, Governor Geringer, is here to testify on
behalf of our State and I look forward to his testimony. The
Governor will also be appearing before my own Subcommittee
tomorrow to discuss royalty-in-kind for OCS and Federal oil and
gas leases, so I feel fortunate to have him here for two days
to provide us with the benefit of his counsel on these
important issues.
Although I believe that NEPA was never intended to mandate
particular results, but simply to prescribe the necessary
processes to allow Federal agencies to understand the
environmental consequences of a particular action, my fear is
that we have really moved in the opposite direction. By that I
mean that we have so many competing interests involved in a
Federal agency action--some with much at stake, others with
nothing at stake--that various groups often tend to impose
their will upon an agency to make a particular decision,
regardless of what the true scientific facts are.
But more often that not, what we see and have seen in
Wyoming as Governor Geringer will attest to here today is the
lack of cooperation among the State and Federal agencies.
Decisions are routinely made without the State's consent or
comments or worse still, State's comments and concerns are
ignored. This style of management is simply unacceptable and
merely leads to friction in what could and should be a more
collaborative process.
In Wyoming for example, in response to a number of concerns
and appeals surrounding the impacts of oil and gas development
on Federal lands, Secretary Babbitt and Assistant Secretary
Armstrong insisted on putting together an advisory council to
look at ways in which to streamline the leasing process in the
Green River Basin in Wyoming. Although I will be the first to
admit that I was fairly skeptical about this committee, I think
in the end the group came up with some reasonable
recommendations to resolve resource conflicts on public lands.
Regrettably, I don't believe many of those recommendations were
adopted by the Interior Department, but the committee does
demonstrate that consensus can be reached when varying
interests are included from the outset in a particular issue.
In stark contrast, however, is the American Heritage Rivers
Initiative (AHRI), a product of the President's 1996 State of
the Union Address which later became an Executive Order
mandate. Notwithstanding the fact that this initiative involved
twelve Federal agencies and would have a tremendous impact on
our States and rural communities, no Environmental Impact
Statement was ever prepared on the AHRI. While I realize the
President's Council on Environmental Quality (CEQ) has some
leeway in excluding certain Federal initiatives from the NEPA
process, I am still puzzled as to how or why that could be the
case with AHRI. I intend to quiz Ms. McGinty on that very issue
when my turn for questioning comes around.
Mr. Chairman, there is no doubt in my mind that NEPA was a
well-intentioned law aimed at providing Federal agencies with
the necessary tools to make decisions about how resource
development projects might affect our environment and examine
ways in which to mitigate those impacts. But I also think of it
as a law of unintended consequences. I hear numerous complaints
from my constituents on a regular basis complaining of the
unnecessary delays associated with Environmental Assessments
and EIS's, not to mention the costs incurred with the work
product. So I hope if nothing else, we can come away from this
hearing with some solid ideas on how to improve the NEPA
process. With a little help and consistency from both State and
Federal agencies across the country, we can not only improve
the contents of NEPA documentation, but we can reduce the time
frame allotted to them and, accordingly, the size of the text
and review time necessary for local authorities. I look forward
to working with the members of the Committee on that important
effort.
Chairman Young. I thank the kind lady. Are there any other
opening statements at this time, before I call the rest of the
witnesses? Ms. Chenoweth?
Ms. Chenoweth. Mr. Chairman, I have an opening statement.
Chairman Young. Yes, ma'am. You are recognized.
STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF IDAHO
Ms. Chenoweth. Mr. Chairman, I want to thank you for
holding this oversight hearing on the implementation,
application and successes of the National Environmental Policy
Act.
Mr. Chairman, from my vantage point, the application and
implementation of NEPA by the Clinton-Gore Administration has
not been based on science, as the Act requires, but on pure
politics. Take, for instance, a recent blow-down in the Sabine
National Forest in eastern Texas and this--I will send this up
for your perusal, Mr. Chairman.
----------
Sabine photograph on page 222
Roughly 102,000 acres of trees were blown down, broken and
lying on the forest floor. This is indeed a catastrophic event
and the waivers provided by CEQ were correct and needed. These
waivers allow logging companies to go in and harvest the dead
trees, clean the forest floor, protect the area from wildfire,
and, thus, save the Sabine National Forest's health.
I would like to publicly congratulate Ms. McGinty and Vice
President Al Gore, who became personally involved in the
salvage operation in east Texas, which just happens to be in
the district of our Democratic colleague, Jim Tanner.
I thank them for moving quickly in Texas by waiving NEPA to
achieve forest health objectives. Contrast this with what is
happening in Idaho. In northern Idaho, the Idaho Panhandle
National Forest, we suffered ice storm damages on thousands of
acres, and I fail to see why the Administration can do the
right thing in Texas, but fails to do so in Idaho, Washington,
Montana, California, Wyoming, Utah, New Mexico and Colorado.
Unfortunately, this appears to be a pattern. Just two weeks
ago we held a hearing on the application of the Endangered
Species Act and the hearing and numbers only confirmed what
most of us already believed. More than half of the budgets of
both the National Marine Fisheries Service and the Fish and
Wildlife Service go to the west and, in the case of National
Marine Fisheries Service, more than 70 percent of its
enforcement budget goes to the northwest.
Most of the Federal Endangered Species listings and
jeopardy findings are in the west, this in spite of the fact
that the eastern states have listed more than a thousand
species, listing the Federal agencies have fully ignored. And
to make matters worse, NMFS applies different criteria to the
Atlantic Salmon and the Pacific Salmon.
The latest attack, the Clinton-Gore roadless moratorium is
a wholesale sidestep of NEPA and the Administrative Procedures
Act. Even though the proposal threatens the health of the
forest, the economic well-being of communities, the livelihoods
of families, the Forest Service is planning open houses.
I ask, Mr. Chairman, on this major Federal action, where is
the opportunity for the public comment and input? There are no
hearings, as required for significant Federal actions; only
opportunities for the agencies to engage in propaganda. This is
terrible.
Why is this, Mr. Chairman? From my vantage point, it's pure
politics.
Again, I want to thank you for holding this hearing and I
look forward to questioning our witnesses.
[The prepared statement of the Hon. Helen Chenoweth
follows:]
Statement of Hon. Helen Chenoweth, a Representative in Congress from
the State of Idaho
Mr. Chairman, thank you for holding this oversight hearing
on the implementation, application and successes of the
National Environmental Policy Act, otherwise known as NEPA.
This is an incredibly important issue to my state.
Mr. Chairman, from my vantage point, the application and
implementation of NEPA by the Clinton-Gore Administration has
not been based on science as the Act requires; but on politics.
Take for instance a recent blowdown in the Sabine National
Forest in Eastern Texas.
Roughly 102,000 acres of trees were broken and lying on the
forest floor. This is indeed a catastrophic event, and the
waivers provided by the Council on Environmental Quality (CEQ)
were correct and needed. These waivers allow logging companies
to go in and harvest the dead trees, clean the forest floor,
protect the area from wild fire, and thus save the Sabine
National Forest's health.
I would like to publicly congratulate Katie McGinty and
Vice President Al Gore who became personally involved in the
salvage operation in East Texas, which just happens to be in
the district of our Democratic colleague Jim Tanner. I thank
them for moving quickly in Texas, by waiving NEPA, to achieve
forest health objectives.
Contrast this with what has happened in Idaho. In northern
Idaho's Panhandle National Forest, we suffered ice storm
damages on thousands of acres. I fail to see why the
Administration can do the right thing in Texas, but fails to do
so in Idaho, Washington, Montana, California, Wyoming, Utah,
New Mexico and Colorado.
Unfortunately, this appears to be a pattern. Just two weeks
ago, we held a hearing on the application of the Endangered
Species Act. The hearing and numbers only confirmed what most
of us already believed. More than half of the budgets of both
the National Marine and Fisheries Service and the Fish and
Wildlife Service go to the West; and in the case of NMFS, more
than 70 percent of its enforcement budget goes to the Northwest
Region. Most of the Federal endangered species listings and
jeopardy findings are in the west; this in spite of the fact
that the Eastern States' have listed more than a thousand
species . . . listings the Federal agencies have fully ignored.
To make matters worse, NMFS applies different criteria to the
Atlantic Salmon and the Pacific Salmon.
The latest attack, the Clinton-Gore Roadless Moratorium, is
a wholesale sidestep of NEPA and the Administrative Procedures
Act. Even though the proposal threatens the health of the
forests, the economic well-being of communities, the
livelihoods of families, the Forest Service is planning Open
Houses!!! I ask, Mr. Chairman, on this major Federal action,
where is the opportunity for public comment and input? There
are no hearings as required for significant Federal actions,
only opportunities for the agency to engage in propaganda. This
is horrible.
Why is this, Mr. Chairman? From my vantage point, it's
politics!
I look forward to questioning our witnesses.
Chairman Young. Mr. Pallone.
STATEMENT OF HON. FRANK PALLONE, JR., A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW JERSEY
Mr. Pallone. Thank you, Mr. Chairman. I just wanted to say
that NEPA is, in many ways, the most important of all
environmental legislation. It was the first and still key
environmental statute that sprang up in the early 1970's, when
Americans demanded action to address environmental quality in
context of the first Earth Day.
And unlike other environmental statutes, the target is
specific aspects of environmental protection, like the Clean
Water Act. NEPA is fundamental to overall environmental
problems. It requires the Federal Government to consider the
environmental impacts of its actions and, even more
importantly, NEPA often provides the only opportunity for
public comment on these Federal proposals.
If nothing else can speak to the effectiveness of NEPA,
then it is the number of attempts to waive NEPA in the 104th
and 105th Congresses.
But I have to say that the possibility--possibly the most
effective aspect of NEPA, in my opinion, is the Council of
Environmental Quality, which is actually formed under the
statute. I simply cannot say enough good things about the CEQ.
And I'm not just saying it because Katie McGinty is here today
to testify.
I want to just give an example, very briefly. CEQ was
instrumental in the New York/New Jersey area in eliminating the
gridlock on a very controversial issue in our area, and that
was the dredging and disposal of dredged material. For years,
maintenance dredging from the Port of New York and New Jersey
was being held up because there was no place to put
contaminated dredged spoils.
Traditional practice was to simply dump it in the ocean,
just off my district, as luck would have it, and my
constituents and I fought hard against the ocean dumping of
these toxic sediments in what was essentially our back yard at
the Jersey shore.
But just as vocal on the other side of the issue were the
port interests, both industry and labor, and in the middle were
the Army Corps of Engineers and the EPA, which regulated and
administered dredging and dredge disposal permits. The battle
between these parties raged on for years, to the point where
just a couple of years ago, New York City ended up paying
millions of dollars to ship dredged materials to Utah and, for
some reason, we could not come to a resolution, and that was
until CEQ got involved.
CEQ brought everyone to the table; the environmental
interests, the port interests, the labor interests, the EPA,
and the Corps, and, with CEQ's help, we finally reached an
agreement. With their help, we finally closed the last ocean
dumping site off the Jersey shore last fall, while, at the same
time, moving priority dredging projects for the Port of New
York. And now disposal alternatives are being developed that
actually involve the beneficial reuse of this material for
construction purposes, the same material that just a few months
ago you couldn't pay to get rid of unless you were willing to
send it almost clear across the country.
CEQ was instrumental in this endeavor and I know that
without their help, we never could have accomplished what I
consider to be a landmark achievement for the Jersey shore and
the Port of New York and New Jersey.
I just have a letter from the Port of New York and New
Jersey which expresses its support and the great work that the
CEQ is doing. I would like to submit it for the record, with
your permission, Mr. Chairman.
In closing, I just wanted to thank Katie McGinty for all
the great work that I think the CEQ is doing.
I think this is an important example because on the one
hand, we had the labor and business interests; on the other, we
had the environmental interests, and she and the Council were
able to work this out to everyone's satisfaction, so that
everyone is, in effect, happy today, and we're also not
shipping this stuff to Utah, which I think, I'm sure the people
in Utah appreciate, as well.
Thank you, Mr. Chairman.
[The prepared statement of Representative Pallone follows:]
Statement of Hon. Frank Pallone, Jr., a Representative in Congress from
the State of New Jersey
Thank you, Mr. Chairman.
Mr. Chairman, the National Environmental Policy Act,
informally referred to as NEPA, is really in many ways the most
important of all emvironmental legislation. It was the first of
and still key environmental statute that sprang up in the early
1970's when Americans demanded action to address environmental
quality in the context of the first Earth Day.
Unlike other environmental statutes that target a specific
aspect of environmental protection like the Clean Water Act,
NEPA is fundamental to overall environmental protection. NEPA
requires the Federal Government to consider the environmental
impacts of its actions. And even more importantly, NEPA often
provides the only opportunity for public comment on these
Federal proposals.
If nothing else can speak to the effectiveness of NEPA,
then it is the number of attempts to waive NEPA in the 104th
and 105th Congresses.
But I would have to say that possibly the most effective
aspect of NEPA is the Council of Environmental Quality, which
is actually formed under the statute.
I simply cannot say enough good things about CEQ--and I'm
not just saying that because Katie McGinty is here to testify
before us today.
CEQ has been instrumental in the New York-New Jersey area
in eliminating the gridlock on a very controversial issue in
our area--dredging and dredged material disposal. For years,
maintenance dredging for the Port of New York and New Jersey
was being held up because there was no place to put the
contaminated dredged spoils. Traditional practice was to simply
dump these contaminated spoils in the ocean, just off of my
district--as luck would have it. My constituents and I fought
hard against the ocean dumping of these toxic sediments in what
was essentially our backyard at the Jersey Shore. But just as
vocal on the other side of the issue were the port interests,
both industry ans labor. And in the middle were the Army Corps
of Engineers and the U.S. Environmental Protection Agency which
regulate and administer dredging and dredged material disposal
permits.
The battle raged on for years, to the point where just a
couple of years ago, New York City ended up paying millions of
dollars to ship dredged material to Utah. For some reason, we
could not come to a resolution. Until CEQ got involved.
CEQ brought everyone to the table--the environmental
interests, the port interests, the labor interests, the EPA,
and the Corps--and with CEQ's help, we finally reached
agreement. With CEQ's help, we finally closed the last ocean
dump site off of the Jersey Shore last fall while at the same
time moving priority dredging projects for the Port. And now,
disposal alternatives are being developed that actually involve
the beneficial re-use of this material for construction
purposes, the same material that just a few months ago, you
couldn't pay to get rid of unless you were willing to send it
almost clear across the country.
CEQ has been instrumental in this endeavor and I know that
without their help, we never could have accomplished what I
consider to be a landmark achievement for both the Jersey Shore
and the Port of New York and New Jersey.
At this time, I would like to ask that a letter from the
Port Authority of New York and New Jersey which expresses its
support for CEQ and the great work that they are doing be
submitted into the record.
In closing, I want to thank Katie McGinty for all of the
great work that I think CEQ is doing. I look forward to
continuing to work with her and her staff at CEQ on
environmental issues that are important to both New Jersey and
the Nation as a whole.
Thank you.
Chairman Young. Any other opening statements?
[No response.]
Chairman Young. If not, I will call the rest of the panel
to the floor. Ms. McGinty and the Honorable Gale Norton,
Attorney General of the State of Colorado. Please take your
seats.
Again, I want to restate, this is the first oversight
hearing we have had on NEPA since the creation of it. We are
here to find out where we're headed, not where we've been, and
if there is a--I would call it a discretionary ability for the
Council on Environmental Quality to pick certain areas to do
things and certain areas not to do things for political
purposes.
If that is the case, then the Act itself is failing.
Governor, you are welcome to the Committee and, again, with the
kind introduction your great Congresslady made, I will not
introduce you any further. But welcome and we look forward to
your testimony as the Governor of one of the states nearly as
pretty as Alaska; not quite, but nearly. Governor, you're up.
STATEMENT OF HON. JAMES GERINGER, GOVERNOR OF WYOMING,
CHAIRMAN, INTERSTATE OIL AND GAS COMPACT COMMISSION, OKLAHOMA
CITY, OKLAHOMA; VICE CHAIRMAN OF THE WESTERN GOVERNORS'
ASSOCIATION
Mr. Geringer. Well, it's a matter of judgment, Mr.
Chairman. Since you're the Chairman, it's your state.
Chairman Young. Thank you, sir.
Mr. Geringer. Thank you for the opportunity to be with you
today and the Committee on Resources Oversight as we discuss
the National Environmental Policy Act.
I'm the Governor of Wyoming, though one of the
organizations that I am chair of has its headquarters in
Oklahoma, and that's the Interstate Oil and Gas Compact
Commission.
That is an organization of 36 member states and four
international affiliates who are involved with the regulation
and conservation of our energy resources.
But I am here principally as the Governor of Wyoming, to
represent its people, and also to speak for a couple of other
organizations. I am currently the Vice Chairman of the Western
Governors Association. Tony Knowles, Governor of Alaska, is
chair, and we will be up in your territory next summer, Mr.
Chairman.
Also, I am here with the Great Plains Partnership, which I
co-chair, along with John Sawhill of the Nature Conservancy.
The reason I cite these organizations and their interest is
that all of them are working to improve the process of
involving people, our lands, our livelihood and our future in
resource management.
This is a people issue, Mr. Chairman, and I hope that we
can focus on that, instead of that blasted buzzer.
Mrs. Chenoweth. We want to make sure you're awake.
Mr. Geringer. I see that. The National Environmental Policy
Act was enacted in 1969, with the stated purpose of
understanding the interrelations of all components of the
natural environment, taking words from the purpose clause. It
goes on to say that it's the policy of the Federal Government,
in cooperation with state and local governments and other
concerned public and private organizations, to create and
maintain conditions under which we can exist to fulfill social,
economic and other requirements of the present and future
generations.
I call your attention to those words, Mr. Chairman, because
the impact and the intent have been diminished considerably
over the years. I was reviewing some of the documents put out
by the Council on Environmental Quality. Kathleen McGinty,
seated with me here today, has said we have much to gain in
finding common ground to conserve resources for future
generations, while at the same time we provide a stable
economic future our people.
I call attention to those words, as well, because the
economic considerations are not always a major factor as we
evaluate NEPA and the other environmental Acts.
Katie McGinty made a statement from the chair in the CEQ
25th anniversary report that says ``Our common ground, the
environment, has become a battleground. Somehow we have become
a country in receivership, with the courts managing our
forests, our rivers and our range lands.''
In fact, Mr. Chairman, it's not just that the courts are
directly involved in managing many of our resources, they are
indirectly managing all of them in our states because of the
fear of litigation, not just because of actual litigation.
The Act called NEPA is not the problem so much as the
implementation of the Act. It takes too long, it costs too
much, it's spawns unending litigation, and it is so
inconsistently implemented that each agency of the Federal
Government has its own custom-tailoring of an approach.
You'd likely not even have to amend NEPA at all, Mr.
Chairman, if we could simply require the Federal Government to
be consistent and speak with one voice. We have one President,
one Congress. We ought to have just one Federal Government when
it comes to speaking on issues.
We have to change the confusing and contradictory
regulations used by the Federal agencies to implement NEPA. In
other words, it's not the Act, it's the actors.
The Act is intended to require Federal, state and private
actions that are comprehensive, with better planning, that have
an inter-generational view in their effect and strike a
wholesome balance between the environment and the economy.
Quoting from the Act itself, 1022(a), which discusses the fact
that we are looking at the impact on the human environment, the
human environment is cited several times in the regulations of
the CEQ and the economy has to be a factor in that overall
human environment; after all, poverty and loss of community are
definitely part of the human environment.
I have several suggestions for improving NEPA, but the
importance of a stronger role for state and local governments
is what I would emphasize the most today.
In a letter that Katie wrote to me last summer, it says
that ``Regulations implementing the Act at CFR 1508.5 are clear
that a state or local government may, by agreement, with the
lead agency, become a cooperating agency.'' Quoting further,
``Frankly, considering NEPA's mandate and the authority granted
in Federal regulation to allow state and local cooperation
through agreement, cooperator status for state and local
governments should occur routinely.'' In fact, it does not.
In fact, I would cite two other sections of the CEQ
regulations that allow for the appointment of joint lead
agencies with the states as a joint lead agency and also a
reference in 1506.2(c) that says ``State and local governments
shall be designated as joint lead agencies in those appropriate
areas.''
In fact, that does not occur at all, let alone routinely.
Clearly, the shortcomings with NEPA are in the application, not
in the purpose. Agencies have much too much of their focus on
producing litigation-proof documents and not enough concern
about involving people in the process.
I recommend improvement in five key areas. First, involve
the right people, which means including local and state
governments from the beginning. Quite often, Federal agency
officials come to my Wyoming office to update me on actions
they've already taken or will take. Well, Mr. Chairman, I'm
tired of being updated. The states are partners in natural
resource management and rather than being updated, we should be
included in the planning and the evaluation process to ensure
that our people are represented in the spirit in which NEPA was
enacted.
I remind those here today that the states were not created
by the Federal Government; rather, the Federal Government was
created by the states. We have governing responsibilities under
law that cannot and should not be set aside. Clearly, we have
shared and concurrent jurisdiction with the Federal agency
managers.
As an example, when the U.S. Forest Service and the Bureau
of Land Management oversee the land management responsibilities
they have, the states have primacy over wildlife management,
air quality, water quality, solid waste disposal, and water
rights management on those very same lands. In other words, we
have a joint or shared responsibility that requires full
partnership, not just a close relationship.
Let me repeat that. We want a full partnership, not a close
relationship. By analogy, the police officer with a prisoner in
handcuffs has a close relationship with the prisoner, but I
would hardly call that a partnership.
Mutual respect and benefit characterize a partnership. Take
the handcuffs off, Mr. Chairman.
The Great Plains Partnership, which represents 14 Great
Plains states, has a mission statement that, paraphrased, goes
like this--``We need to help the people on the land feel good
about stewardship in control of their choices so that they can
pass something along to their children that's better than what
they receive.''
We have to show in plain and simple actions that the
environment, the economy, and the community are compatible. Our
citizens are tired of the judicial gridlock and they're feeling
left out of the process. They are willing and able to
participate. Local government involvement, particularly early
in the process, can greatly reduce conflicts in litigation,
which is an extraordinary cost to our government.
That first recommendation then focuses on the need to be
partners with state and local governments.
My second recommendation is that coordination among and
within agencies has to be improved. We have duplication of
environmental analyses, to the detriment of the process and the
expense of the Federal Government. We could redirect many of
our financial resources if they were only better utilized.
The poor coordination among the project proponents, lead
agencies, and third parties that are hired to conduct the
analysis does not always occur.
Third, inconsistencies among and within agencies have to be
reduced. We have Forest Service management on permit allotments
in Wyoming, where one forest requires only the grazing
allotment-holder to do the oversight, the second forest
requires the officials only in the Forest Service to do the
monitoring, and the third forest allows the policy to change
from district to district. Again, the Federal agencies should
speak with one voice.
Two more points, Mr. Chairman, and I'll wrap it up. Fourth,
the training of Federal agency personnel needs to be improved
and increased. The word is not getting even from the CEQ
regulations down to the field. Even the CEQ regulations very
clearly cover the economic and community impact and the
participation of the states; yet, it's not at all implemented
at the local level. There has to be a recognition of that
legitimate role for state and local government.
Even understanding the difference between EAs and EIS's is
not even clear down at the local level. There need to be
consistency and reasonable alternatives, clear, concise
documents that use plain language and limits on the volume of
the paperwork.
In the words of the CEQ regulation, the goal is to be
analytic, not encyclopedic.
Fifth and finally, there must be a scientific, substantive
basis for asking for how to manage so that we avoid the endless
inquiries and unnecessary data collection. I call your
attention to the use of adaptive management, which the National
Academy of Sciences calls the process where management and
research are combined so that the projects are specifically
designed to reveal causal relationships between interventions
and outcomes to maximize learning.
Regulations should be built upon adaptive management and
trust. Make a decision based upon the best information at that
time, don't try to cover every possible contingency. You can
always ask one more question that starts off with ``what if.''
Make the decision, get underway and monitor the performance and
if there is impact, adapt to correct the problem. Use accurate
science and modern technology and train the people to be
objective.
The culture and the history of the Rocky Mountains reflects
a strong spirit of independence and innovation. We have a deep-
seated respect for each other and a spirit of cooperation,
where it's not just a matter of neighborliness that can mean
survival. We do support each other; we respect the resource; we
conserve for the next generation to prevent the irreversible
deterioration that comes from a lack of stewardship.
It is in this spirit that I present my comments today, with
the goal of improving the implementation of NEPA.
Chairman Young. Governor, we're about out of time. I
apologize.
Mr. Geringer. Mr. Chairman, I will answer any questions.
[The prepared statement of the Honorable Jim Geringer may
be found at end of hearing.]
Chairman Young. I do thank you for your testimony. This
Committee will recess until 20 minutes of 12. I want all of you
back here, if we're going to ask the questions. I do thank you.
The Committee is now recessed for 10 minutes. Thank you.
[Recess.]
Chairman Young. The Committee will come back to order. I do
thank the panel for bearing with this very ineffective system
we call Congress, running back and forth, but apparently we are
now through with our votes for a length of time, so we can go
through the panel.
The next testimony, we will hear from Kathleen McGinty,
Chair of the Council on Environmental Quality, Washington, DC.
You're up.
STATEMENT OF HON. KATHLEEN McGINTY, CHAIR, COUNCIL ON
ENVIRONMENTAL QUALITY, WASHINGTON, DC
Ms. McGinty. Thank you, Mr. Chairman and members of the
Committee. Thank you for the opportunity to visit with you
today on the National Environmental Policy Act. This Committee
certainly is to be congratulated; first, in the historic role
the Committee played in devising and putting into place the
National Environmental Policy Act and, also, now today, in
spending time and effort to oversee and ensure the Act's
faithful implementation.
Let me state that I believe very strongly that NEPA is a
seminal statute and I say that not just as an environmental
statute, but more broadly. For four reasons, I think that that
is the case.
First and foremost, NEPA is not just about the environment.
While it certainly has been a watershed statute in ushering in
our efforts to protect the environment in this country, NEPA
actually is about the integration of environmental, economic
and social considerations into one coherent whole.
Second and related to that very important piece of what
NEPA is about is that NEPA is the singular place where we see
both a directive and, through the Council on Environmental
Quality, the opportunity for there to be cooperation and
coordination among the various parts of the Federal family.
Third, NEPA is that statute that calls for, if you will,
sobriety in the expenditure of the public's fisc. It asks and
calls on the agencies to look before they leap, to plan and
make decisions in a sound and wise way, and, fourth, very
related to all of the above, NEPA is a seminal statute because
it is that one place that ensures a democratization of
decisionmaking. It is that one instrument through which the
public and state and local governments have a seat at the table
as decisions are made which affect them in a very real way.
I think, Mr. Chairman, certainly in the last 5 years, but
in the 30 years of NEPA's history, we have been able to
accomplish enormous successes through NEPA. First, we have been
able to change conflict into cooperation. Mr. Pallone cited the
example in the New York/New Jersey harbor. Years of battling,
yielded to a cooperative and collaborative approach that serves
both the environment and the economic interests in the New
York/New Jersey region.
In California, a similar situation with regard to the
management of water resources, 20 years of feuding, ceding to
cooperation and collaboration as environmental-economic
interests brought together for the first time into a
collaborative process.
And just last week, a joint initiative we were able to
undertake with the Governor of California to finally move
beyond the loggerheads we have seen under the Endangered
Species Act and reach a partnership agreement with the State of
California which avoids Federal action to list salmon in
northern California.
All of these things enabled by that piece of NEPA that says
we should move from conflict to cooperation and collaboration
by bringing all the interests to the table.
Second, NEPA has been the instrument through which we have
saved the public a vast amount of money. In South Carolina, $53
million saved as a bridge was redesigned, money saved and
wetlands protected that otherwise would have been lost through
a more expensive approach.
In Texas, up to $54 million saved as NEPA analysis showed
that new ports and new docking facilities were not necessary.
The list can go on and on.
Third, NEPA has enabled us to engage the public as never
before in decisions that affect their lives. Governor Geringer
has been a leader in this regard and I was pleased to work with
him to ensure that for the first time the State of Wyoming and
Park County, Wy-
oming will be cooperating agencies in figuring out the best
management plan for Yellowstone.
Overall, NEPA has been about telling us that the choice
between jobs and the environment is a false choice. Either we
will have both or we will have neither, and NEPA further tells
us that the only way we will avoid that false polarization we
have seen is if we integrate environmental, economic and social
considerations and we achieve that integration by bringing the
variety of voices and actors to the table for collaborative
processes.
Despite these successes, Mr. Chairman, and members of the
Committee, there have been shortcomings. To echo what the
Governor has said, those shortcomings are inherent not in the
statute itself or the regulations that CEQ has issued to
implement the statute over the years, but in the implementation
of the statute itself.
The shortcomings fall into several categories. Paperwork;
NEPA is supposed to be about good decisions, not grand
documents. But instead we have seen a proliferation of paper
rather than a perfection of process which truly vests the
public with the interests that they deserve in decisions that
affect their lives.
Second, minutia; NEPA has gotten involved in the small
actions that happen every day, but has been lost in the larger
policymaking, programmatic planning and processes that the
agencies follow.
Third, pro forma procedures; rather than giving the public
an opportunity to feel effectively engaged in decisionmaking,
the public often feels that the public hearings that are
provided are pro forma, that we are going through the motions,
but that, in fact and in reality, the decision has already been
made.
Fourth, continued confrontation and lack of collaboration.
This comes back to a technical part of the statute. The
agencies are not fully taking advantage of implementing the
scoping process that NEPA provides. That process is about
getting all of the interests to the table up front, identifying
any problem that's going to arise with the project up front,
and work it out as the project moves itself along in the
process.
In light of these shortcomings, Mr. Chairman, as you
mentioned, it has been my priority to reinvent the processes
that have evolved in the implementation of NEPA and to secure
again the original purposes of NEPA.
We have made progress in that regard. We have issued a
plain English directive to make these documents understandable
to the general public. We have begun to enforce page
limitations on how long the documents can be and we have begun
to insist that the agencies use common terminology; so that the
Forest Service is speaking the same language as the BLM, for
example.
We had a project plan to move forward and build on these
initial steps that we're taking. A project that would include
the adaptive management procedures that the Governor refers to,
landscaped scale management, moving up to programmatic levels
of NEPA implementation, and, importantly, further ensuring the
participation of state and local governments.
As this Committee is well aware, the Congress did not
support the reinvention initiative last year, however, and I
welcome this forum as an opportunity further to reflect on the
importance of that reinvention effort and hopefully to secure
with you a path for moving forward with that reinvention effort
once again.
Thank you very much, Mr. Chairman and members of the
Committee.
[The prepared statement of Kathleen McGinty may be found at
end of hearing.]
Chairman Young. Thank you, Ms. McGinty. Ms. Norton, you're
up next.
STATEMENT OF HON. GALE NORTON, ATTORNEY GENERAL, STATE OF
COLORADO, DENVER, COLORADO
Ms. Norton. Mr. Chairman and members of the Committee, I
appreciate this opportunity to discuss the National
Environmental Policy Act with you today.
I think NEPA is a good piece of legislation that has lost
its way during implementation. With some small changes,
however, it can accomplish what it was intended to accomplish;
that is, having the state and Federal Governments work together
to find and implement the proper balance between protecting the
environment and achieving other societal goals.
I will focus today on the federalism issues of NEPA. I am
familiar with both the Federal and state perspectives on
environmental and natural resources issues. During my 7 years
as Colorado's Attorney General, I have been personally involved
in many environmental and natural resources issues, and I was
selected by other Attorneys General to chair our Environment
Committee.
During the Reagan Administration, I served in the
Department of Interior as Associate Solicitor for Conservation
and Wildlife. In addition, I am currently the national chair of
a new organization, the Coalition of Republican Environmental
Advocates.
The National Environmental Policy Act was passed by
Congress in 1969 and signed into law by President Richard Nixon
in 1970. The Act reflected a widespread public desire to
address concerns over the worsening state of the environment.
Today, environmental impact statements and environmental
assessments are a routine part of the planning for any project
undertaken by the Federal Government or that requires Federal
approval. The EPA Office of Federal Activities recently
described the statistical picture of NEPA analysis. Of the
final EIS's submitted in 1996, the longest had 1,638 pages of
text, while the average was 572 pages, including 204 pages of
NEPA analysis. Although an average of only 508 environmental
impact statements were prepared each year between 1990 and
1995, CEQ estimated that about 50,000 environmental assessments
were being prepared annually.
The original goal of NEPA and many other environmental
statutes was to forge a Federal/state partnership in protecting
the environment. In NEPA, state and local governments were to
have an essential part in determining the environmental and
societal impacts of Federal actions.
This state/Federal partnership has worked well in some
instances. For example, the U.S. Department of Transportation
has allowed our Colorado Department of Transportation to play a
significant or even primary role in preparation of some EIS's.
On the other hand, states have often found themselves at odds
with the Federal Government when the issue involves public
land, an issue that is critically important to western states.
This is not what Congress intended when it began the
environmental decade. To remedy this problem, Senator Thomas
recently introduced Senate Bill 1176, the State and Local
Government Participation Act, which would amend NEPA to
specifically require Federal agencies to cooperate with states
and counties.
Innovative environmental policies come about when the
states can act as laboratories of democracy. Furthermore, the
states are important in the Federal/state environmental
partnership because there is no such thing as one-size-fits-all
government. The states, where government is closer to the
people, are the proper entities to implement environmental laws
and policies.
To return to the original intent of Congress and NEPA and
so many other environmental statutes, I recommend that Congress
start the devolution of authority in the environmental area
back to the states by a small amendment to NEPA. Specifically,
Congress should require that agencies consult at an early stage
with state and local governments in developing environmental
impact statements.
It should be clear in NEPA that an environmental impact
statement is not adequate if it does not fully address state
and local concerns.
The most significant challenge set out in NEPA is that
government must strive to find a proper balance between
environmental protection and other societal needs. We certainly
need a clean and healthy environment. Americans applaud the
advancements in clean air and clean water made since NEPA and
other key environmental statutes went into effect.
We also need a productive society that fulfills the social
and economic needs of present and future generations. State,
local and Federal Governments must attempt to balance all of
these needs in implementing environmental policies. We must
ensure that all societal needs and impacts are identified in
the NEPA information-gathering process.
If the Forest Service is going to deny an easement for an
existing water project, we need to understand not only the
environmental impacts, but also the impacts on the way of life
of local communities and their economic productivity.
We must use the information collected and analysis done in
the NEPA process to identify potential conflicts and initiate a
process to resolve them. For example, the NEPA process may
identify a potential conflict between the local community and a
Federal agency proposing a project. Amendments to NEPA might
require that some conflict resolution mechanism be initiated at
that point to resolve the conflict.
In short, collecting information and analyzing societal
impacts is desirable, but only if the information is used to
make well reasoned and balanced decisions about Federal
actions.
In conclusion, I would suggest that the policy set out in
NEPA 30 years ago is a good one--protect the environment while
balancing that protection with other societal needs and goals.
Thirty years later, we have sometimes strayed from that policy.
The best thing we can do for citizens and the environment is to
return to that original vision.
Thank you.
[The prepared statement of Gale Norton may be found at end
of hearing.]
Chairman Young. Thank you, Ms. Norton, excellent testimony.
All good testimony by the witnesses.
Governor and Ms. Norton, if I heard you correctly, you're
saying that NEPA, to make it really work, should be primarily
in the states' authority or in a total partnership with the
Federal Government. Is that correct?
Mr. Geringer. Mr. Chairman, yes. In fact, what should
routinely be occurring is so rare that it doesn't even
implement the requirements of the Act or the regulations that
were designed to do that.
I made reference to joint lead agencies. I don't know if we
can cite a situation of recent memory where a state--and I
believe the Act itself calls for those areas of responsibility
that are statewide--where the state has statewide jurisdiction
or an agency within the state has statewide jurisdiction. Those
agencies are to be routinely designated as joint lead agencies,
not just cooperator status.
We fight hard just to even get cooperator status and
usually we are just updated.
Chairman Young. Ms. Norton, are you saying there should be
some amendments to the Act itself to make sure this occurs?
Right now, it's my interpretation that the agencies, and not
necessarily Ms. McGinty herself personally, have in the past
cooperated very little and are now cooperating very little. The
cooperation usually is with the Federal Government. You either
cooperate with the Federal Government or there is no
cooperation.
So there has to be an amendment to the Act. Is that my
interpretation of your testimony?
Ms. Norton. The Act itself, as it currently stands, would
fully allow cooperation between the states and Federal
Government.
The Chairman. But it isn't required.
Ms. Norton. It is not.
The Chairman. It will allow it, but there is no law that
says it has to occur.
Ms. Norton. We would like to see more of a mandate to
require----
Chairman Young. I go back to the Governor's comment.
Remember, this is supposed to be the United States of America,
not the United States of the Federal agencies. I think that is
very, very true.
That's one reason I challenge every witness I have before
me, anybody, go down the halls or the walks of any street in
any town of the United States today and ask them what they
think of their Federal Government, and you will be terribly
disappointed, and I'm part of it.
So there's something wrong somewhere along the line. The
states should be the ones to be lead agencies, and it ends up
being the Federal Government saying, ``Don't bother us, we're
God and don't mess with us.''
Katie, I've got a question to ask you. One of the things
that concerns me is the reinvention, you talk about
reinvention, which is Al Gore's campaign word. Top priority,
but how many people do you have working on reinvention of NEPA
right now?
Ms. McGinty. Well, every one of my staff engages in a
reinvention of the statute in every action they undertake every
day. Every example that was either cited by myself or
Congressman Pallone, that is CEQ acting, one, to ensure
coordination among the agencies; two, to integrate economic and
social considerations into environmental decisionmaking.
Chairman Young. With all due respect, Katie, that's not
reinvention. That's what you should be doing anyway. What are
we doing to expedite the process? We're going to have a chart
up here a little later.
The length of NEPA, the requirement for a permit is
deplorable. I mean, it takes forever. So what are you doing to
reinvent this process?
Ms. McGinty. Mr. Chairman, there is no convincing necessary
in terms of selling me on how important reinvention is. That's
why I launched it and I initiated the overall reinvention
project. As this Committee is aware, however, the Congress did
not provide resources for the reinvention project last year.
And I would remind the Committee that CEQ, as we exist
today, we are less than half the size that we were at the final
days of the Bush Administration or as we were proposed to be in
the final days of the Bush Administration.
Chairman Young. May I ask the question? Why do you have to
increase in size if the states are the lead agencies?
Ms. McGinty. Because the job to be undertaken here is
enormous. To ensure that--as Gale Norton pointed out, there are
50,000 EAs, approximately, that might be undertaken every year.
To really try to make sure that overall on a programmatic basis
that the agencies are acting in a way that fulfills the
objectives that have been talked about here, giving agencies a
seat at the table, integrating various considerations, that
can't be done on a----
Chairman Young. You and I have a difference of opinion. I
don't think the agencies ought to be doing what they're doing
right now. It should be the state that's doing it. The agencies
shouldn't have the power they have over an individual when it
comes to filing an environmental impact statement.
I never understood why the states can't, in fact, do an
environmental job equally or better than the Federal
Government. Why should the Federal Government be involved with
it anyway?
One question I have last and then my time is running out.
Are there any limits on how much a Federal agency can extract
from a private citizen to pay for the cost of doing an
environmental impact statement?
Ms. McGinty. The private citizens do contribute to the
analysis that is done on an EIS or an EA.
Chairman Young. In Alaska, the Forest Service is holding a
native corporation hostage and requiring them to pay all costs
of NEPA to get a right-of-way that's legally theirs across the
lands, and every time they finish it, they add to the cost for
requiring further studies.
Now, where is the limit here?
Ms. McGinty. Well, one of the things that I would like to
pursue in the reinvention project is to give a permitee the
ability to secure an agreement with the agency on what the
time-frame would be, to negotiate a schedule for how long the
NEPA process will be. That is one of our top priorities in
pursuing the NEPA reinvention project.
Chairman Young. I just think eventually we're going to have
to write it into law because this is going on too long--there
have been four EIS statements finalized, just about to the
point where they can sign off, and they add to it and they're
paying for it, in what is an attempt by an agency, using the
EIS statement and, in fact, NEPA, to stop the project itself.
I think that is very inappropriate and never was the intent
of the Act.
My time has run out and we'll have a second round. Mr.
Vento.
Mr. Vento. Thanks, Mr. Chairman. I'm sorry I can't stay for
the hearing, but I think it's an important hearing in terms of
exploration of the NEPA law and the role of the CEQ and the
chair person, who, I guess, is alone in fulfilling that role
these days by virtue of Congress' help.
I want to place in the record the Western Governors
Resolution, Mr. Chairman. That hasn't been done yet and I
assume that you want it in the record.
Chairman Young. Do you have any objections, Governor?
Mr. Geringer. None at all.
Chairman Young. All right. We'll do that.
[The information to be inserted may be found at end of
hearing.]
Mr. Vento. Governor, I think that you point out in your
statement that the NEPA process has improved Federal
decisionmaking, in the opening paragraph of that particular
statement, don't you? This statement says that.
Mr. Geringer. It depends on which part you interpret.
Mr. Vento. Well, I'm reading the initial background
statement, part one, that it's improved decisionmaking.
Mr. Geringer. And where that has been properly applied,
that is certainly true, because we have a great improvement
over what some of our circumstances were in the past on the
impact on the environment.
What we're frustrated with now is the endless litigation
and the process has turned on itself.
Mr. Vento. I understand what your concerns are. I mean, one
of the statements I read there is in the background, it is .2,
it says that it sounds as though you want to consolidate some
of the decisionmaking power in NEPA and take it away from
Federal agencies.
Is that a valid interpretation of this statement?
Mr. Geringer. It's to allocate what is rightfully the
responsibility of the states and that's why I made the point
about concurrent jurisdiction.
Mr. Vento. Well, of course, I think the issue here is what
could we do, Chairperson McGinty, this Committee, to, in fact,
more effectively implement NEPA?
Ms. McGinty. I think that this hearing is a very good
start. I would like collaboratively to join with the Congress
in ensuring the implementation of NEPA. The statute, as
written, and the regulations, as written, call for the very
kind of thing the Governor is calling for, as well, and it only
makes sense.
We should have coherence and coordination among the Federal
agencies. We should have state and local governments at the
table helping us to fashion our decision. We should act in a
timely fashion.
These are things that are called for, but, frankly, it's a
big job to ensure that they are actually being implemented.
Mr. Vento. Well, it's hard to play catch when someone
throws the ball straight up the air, isn't it?
Ms. McGinty. Yes. One thing I would mention, Mr. Vento, the
issue has been raised several times about whether or not states
and county governments are being given or afforded the
opportunity to be joint lead agencies.
In fact, there are many instances right now where that is
happening and the one that specifically comes to mind is in
Yellowstone, where the State of Montana is a joint lead agency
with us.
Mr. Vento. What could you--one of your tasks is to try to
mediate disputes. It seems one of the problems here--I guess
we're dealing with land issues. As I looked at the list of
witnesses, it looked like mining, logging, a lot of interesting
issues. I didn't see recreation witnesses in there, but----
Chairman Young. They don't have to file a NEPA analysis.
Mr. Vento. They don't have to file a NEPA. Well, I disagree
that some recreation impacts would and do and have
necessitated. But let me get back to the witnesses, Mr.
Chairman. We can debate amongst ourselves any time.
But one of your roles is to try to mediate disputes between
agencies. In a sense, this is a coordination effort here.
Obviously, you can argue about who should take a lead and who
shouldn't. I think we also make a lot more heat than light with
regards to the lack of collaboration, because I find it to be
generally very close.
But you have to have someone there willing to catch the
ball and cooperate on the issues rather than frustrate the
decision, as happens when we try to locate little things like
nuclear waste sites and so forth, you know. It isn't always
positive, guys, you know.
But what about the coordination and how we can get that?
We're also resisting a lot of debarkment inertia in terms of
trying to hold onto their own turf.
Ms. McGinty. Yes. Right.
Mr. Vento. So you've got a major job. We talked about
cutting your staff in half since what it was in 1992. What can
we do to, in fact, enhance that ability to give you more
authority or at least some carrots here to incentivize the
agencies and departments to, in fact, cooperate?
Ms. McGinty. Well, this sounds like an opportunity not to
be missed and I would refer the Committee to the President's
budget request. But in addition to that, I think more often
than not, Mr. Vento and members of the Committee, it comes down
to providing that forum where agencies can be brought together.
It's not about at all questioning anyone's decisionmaking
authority, but respecting the expertise that's brought to bear
by the variety of agencies. We have, I think, shown that when
the Forest Service, for example, now works cooperatively with
the Fish and Wildlife Service, that their mutual interest can
be advanced in a much better and effective way.
Mr. Vento. There is also a learning curve in there,
learning how to write these statements today. It's much more
effective than what it was when it was uncertain in that
litigation that is put in is not always in good faith, is it?
One of the things--if I call you and ask you and have a
problem in my district, I have a right to expect you to
respond, don't I, as the Council for Environmental Quality with
regards to NEPA?
Ms. McGinty. Yes, absolutely, and that is, of course, one
of the missions we are charged with under the National
Environmental Policy Act.
Mr. Vento. And you are also charged with coming up with
proposals and helping prepare the annual report for the
President that's supposed to be due in July, and with coming up
with other initiatives.
So your responsibility in terms of the Council of
Environmental Quality is very broad besides NEPA. And so to
have cut this budget this way obviously is a self-fulfilling
prophecy with regard to the unworkability of NEPA in the last 5
years.
Thank you, Mr. Chairman.
Chairman Young. The gentleman's time has expired. The
gentleman from Utah.
Mr. Hansen. Thank you, Mr. Chairman. Mr. Chairman, I think
the Governor was right. When he's speaking to the Federal
Government, the Federal Government should be consistent and
speak with one voice. Ms. Norton says state governments should
work together with the Federal Government.
I don't mean to beat up on an old horse here, but Ms.
McGinty is fully aware that I subpoenaed many documents from
the Administration with regard to the creation of the Grand
Staircase-Escalante. One of those documents was from the
ANDALEX coal mining proposal of the Kaiparowits Plateau.
It is significant to note that the EIS was about to find
that there was no significance impact. The document shows that
people in higher positions didn't want that to happen. Another
document I subpoenaed went like this. It was a dialog between
Mr. John Leshy, the--you know who he is, and some other folks
in Interior, and the document notes that NEPA compliance is
still necessary when an agency proposes a creation of a
national monument.
The gist of the whole idea is this; if an agency proposes
the idea, you have to do NEPA. If the President proposes the
idea, you don't have to comply with NEPA. Then CEQ spent the
next 7 months trying to get the President to sign a letter, so
that it could be his idea, and the interesting thing is, it's
great reading if you're bored some night and you want to keep
awake, is the letters between CEQ and the President of the
United States, getting him to sign this letter so they could go
down and do this.
Then why did they do it? Other documents we got are very,
very clear. They did it just for political purposes. The
environmental community would wildly accept that.
Now, I don't have any fault with what you do. This is
hindsight. Maybe we can eat this one and live with it and kill
the economy of southern Utah, but what the heck, we got some
political mileage out of it, so why do we care.
Mr. Chairman, I would like unanimous consent to put in the
record a work by our Committee, your people, Behind Closed
Doors-The Abuse in Trust and Desecration of the Establishment
of the Grand Staircase-Escalante National Monument.
Chairman Young. Without objection, so ordered.
[The information will be included in the Committee files at
1324 Longworth House Office Bldg, Washington, DC.]
Mr. Hansen. I'd like to add, now that that's behind us, I
feel better. Thank you, Ms. McGinty, for allowing me to say
that.
Would you look at that thing right there in front of you?
Ms. McGinty. I think I have it.
Mr. Hansen. You've got a copy of that.
Ms. McGinty. I've got a copy of it, yes.
Mr. Hansen. Well, I notice you folks are going to waive
NEPA on a blow-down that happens to be going on in Texas at
this particular point. What you see in front of you is the
Dixie National Forest. The Dixie National Forest is one of
those beautiful forests that wasn't a forest until we started
managing it in southern Utah over 150 years ago.
Now, they have a little infestation of pine beetle in that
area and the supervisor of the forest, a Mr. Hugh Thompson, he
said, ``I can go in there and cut those 30 acres out and it
will be gone and the strong force can replant those 30 acres.''
Now, as you look at the picture, you will see, in different
areas, it's a dead forest now. And as an old pilot, I like
flying over that area and I see these dead, dead trees staring
me in the face.
Why is that? Because the environmental community has taken
it upon themselves to file a lawsuit against the Forest Service
every time, so we can't take care of it. So we've got a dead
forest now and I'm wondering why we do that. But because we do
have a dead forest, it would seem applicable to me and very
important and a great analogy if you're going to waive the
blow-down in Texas, that you further look at that picture on
the far side where you've got dead trees, and grant a waiver
for the Dixie.
I could bring to this Committee, and in front of you,
dozens of experts who will say one thing--the possibility of
having a fire in the Dixie is 100 percent. The possibility of a
flood behind that is 100 percent. And all that topsoil that's
taken 150 years is now a big mucky mess down in the valleys of
Utah and southern Utah.
I would hope you would give that some consideration in
waiving NEPA here. We have an emergency on our hands. We've got
a big problem. I would implore you to give it some thought.
After what I said to you earlier, I don't know if you will,
but anyway, I thought I would--do you want to respond to that?
Ms. McGinty. If I might. Thank you, Mr. Congressman.
Mr. Hansen. I would appreciate it.
Ms. McGinty. Yes. And to harken back to Congresswoman
Chenoweth's comments earlier. I want to make one clarification.
In Texas, as here, if the issue were brought to us, we would
not be waiving NEPA. NEPA has emergency provisions in it. In
all cases, we are executing NEPA.
The difference between the situation in Texas that the
Congresswoman points out and your situation is only that the
Forest Service came to us with a request there and we acted on
it immediately and granted it. We have not received a request
from the Forest Service with regard to the Dixie.
And I agree with you, I have been to the Dixie, it is
beautiful.
Chairman Young. Would the gentleman yield?
Mr. Hansen. I yield to the Chairman.
Chairman Young. Are you trying to tell me that if the
Regional Supervisor now decides not to do this, you have no say
in it?
Ms. McGinty. There is--what I am saying is that under NEPA
itself, there are provisions for emergency procedures and
should that forest need to execute emergency procedures, there
is full provision for that to be provided within the bounds of
the statute itself.
I would just offer one other example, which is Idaho. Last
year, we did follow emergency procedures in Boise at the
request of Congressman Crapo and Senator Kempthorne, when there
was a dangerous fire situation, a flooding situation there.
Mr. Hansen. Excuse me. Let me say, the Forest Supervisor in
this particular forest has asked for emergency things here.
Apparently, his higher-ups, his betters have not seen it upon
themselves to do it. They have told me they've done it because
of environmental reasons.
That's not fair, in my mind. I mean, I didn't think those
guys handled the forest. I thought scientists did it and
managers did it.
Ms. McGinty. It is, as I say, Congressman, the first I've
heard of it and if the Forest Service wants to come forward and
talk to us about it, we would talk to them immediately about
it.
Mr. Hansen. So if I subpoenaed the Forest Supervisor back
here and put him under oath and he says it, is that what I've
got to have to get it in front of you?
Ms. McGinty. Under normal circumstances, what he would do
to invoke these emergency procedures is he would put together a
process that he would consider the appropriate emergency
process. And as we've done in Idaho, as we did last week in
Texas, that process would then fulfill the requirements of
NEPA.
Mr. Hansen. Well, the problem is the person on the ground
does it, but for somebody up above, living in the beltway of
Washington, doesn't see the necessity of it, and, therefore,
we're stuck.
Ms. McGinty. And as I'm saying, this is the first I've
heard of the situation. I would be happy to talk to the various
parties, Washington and the Forest Supervisor on the ground to
see if we couldn't facilitate some discussion there.
Mr. Hansen. I appreciate that. I'll have him talk to you.
Thank you so much.
Ms. McGinty. Thank you very much.
Mr. Hansen. Thank you for your time, Mr. Chairman.
Chairman Young. Mr. Hinchey.
Mr. Hinchey. Thank you very much, Mr. Chairman, and thank
you, ladies and gentlemen, for your very fine testimony. I
enjoyed listening to it very much.
Madam Chairwoman McGinty, NEPA, I think, as you have
indicated in your testimony, has been an extraordinarily
valuable piece of legislation and that has served the country
extremely well over the course of the last 30 years.
In addition to a great many other things, it has simply
prevented us from making some very serious mistakes, in that it
provides the opportunity for close and careful analysis to
projects and programs before they get started.
Part of that process is the public participation. It seems
to me that there have been a number of examples where public
participation has just been extremely valuable and that
particular part of the process is so essential.
Can you comment on that, from your experience, how public
participation and how information from the public has been
valuable in making things work better and preventing mistakes
from being made?
Ms. McGinty. Yes, absolutely. One example that just comes
to mind is in South Carolina, where a classic train wreck
situation, they need to put a new bridge in, but it would seem
to be unavoidable destruction of some very pristine wetlands
resources.
No one could figure out how to resolve what seemed to be an
irreconcilable conflict, until the public came along and said
we live in this community; we have an idea as to how you could
relocate that bridge, redesign it, still provide the essential
transportation that we want, too. We live here, we want the
transportation services, but also in the context of doing that,
save and preserve those wetlands.
The upshot was public happy, wetlands preserved, and $54
million saved, because the new bridge was actually more cost-
effective than the old design would have been.
Mr. Hinchey. I think that kind of example is indicative of
the reasons why, when you speak to people about this program,
and the state initiatives that have been sired by NEPA, the
State Environmental Quality Review Act, for example, I know,
I'm very familiar with that in New York and the way it works.
The public overwhelmingly supports these pieces of
legislation for the very valuable contribution they have made
and the enormous amount of money that they have saved, both
nationally and for state governments, in the last 28 years or
so.
Ms. McGinty. Very true. I offered an example in my
testimony of Admiral Watkins testifying about this. He says
thank God for NEPA because through that process, a tremendous
amount of money was saved in identifying a much more sound
technology.
Mr. Hinchey. In your testimony you have identified the need
for additional funding for the reinventing initiative. Can you
tell us how much you requested in the budget and give us some
idea of what that money would be used for?
Ms. McGinty. Yes, sir. It's on the order of a half-a-
million dollars, a roundinger, I must say, with regard to most
agencies. But it's very important to us because it would be
funds dedicated to the reinvention project itself, funds
dedicated to have people outside of the fire fight of the
issue-by-issue crisis, looking programatically across the
agencies to see how we can change the implementation of the Act
so it works better for everyone and for all of the purposes we
have been talking about here today.
Mr. Hinchey. I thank you very much and I thank you for the
contribution that you make as the chair of the Governors
Council on Environmental Quality. That office has been
extremely valuable and I can't think of a better person that's
served in that position than the contribution that you have
made in the time that you have been working through this
Administration on protecting the environment of our country and
saving substantial amounts of taxpayer dollars in the process.
Ms. McGinty. Thank you, Congressman. I very much appreciate
it. Appreciate your leadership, as well.
Mr. Hinchey. Governor Geringer, you were the sponsor, as I
understand it, of the Western Governors Association in the 1996
resolution on NEPA. I would like, Mr. Chairman, unanimous
consent to have that resolution included in the record, if it
has not been so already.
Chairman Young. It's already been included.
Mr. Hinchey. Already been included. Well, thank you. The
Western Governors resolution states that, among other things,
as follows; ``The broad goals and objectives of the National
Environmental Policy Act are important and have improved the
overall quality of decisions by Federal agencies.''
Do you, Governor, feel that NEPA has improved Federal
decisionmaking processes and the outcomes of those decisions?
Mr. Geringer. Mr. Chairman, the answer is yes and that's
why the qualifiers were in my remarks and I'm not sure if you
caught all of them, where the process has bogged down and has
become more of a judicial process than a participatory process.
Mr. Hinchey. But you feel that the process itself is very
valuable.
Mr. Geringer. The process can be very valuable, but we're
about to have an impasse on how it might even be implemented.
The benefit that can be derived from NEPA is at risk.
Mr. Hinchey. But hasn't the process provided avenues of
contribution for state and local governments, for Governors and
for the public that didn't exist before? Hasn't that opened up
the process and made valuable contributions in and of itself?
Mr. Geringer. Well, you know, I come from a farming
background and there's an old saying that if it ain't broke,
don't fix it, and that may be where your line of reasoning is
going. But there is also a concept that says if you see
something that can be prevented, you try to head it off, and
that's what we're here to do today, is to try to prevent the
breakage of NEPA.
Mr. Hinchey. I'm of the opinion that anything, no matter
how good it seems, can always be improved. I'm not of the
school of if it ain't broke, don't fix it experience, frankly.
I think that anything can be made better and I have no doubt
that this could be made better.
But my point is that it has provided invaluable service to
us over the course of the last 28-29 years. Saved an enormous
amount of money, prevented an awful lot of mistakes from being
made, and I think your statement in 1996 just makes that as
clear as could be.
Chairman Young. The gentleman's time has expired. Governor,
you can comment, though.
Mr. Hinchey. Thank you, Mr. Chairman.
Chairman Young. You can answer that.
Mr. Geringer. I guess the response I would have is that if
you see something that's headed for detriment or disaster, you
try to head that off, and that was part of the reason for even
raising that resolution, was to say we have the goals in mind,
we understand the purpose, we'd like to see the benefit that
has accrued in the past, where it has accrued, now let's see if
we can't improve that and make it a general positive overall
rather than seeing it die in the muck.
Mr. Hinchey. Well, I agree with you.
Chairman Young. The gentleman's time has expired.
Mr. Hinchey. It can be improved, but I just don't want it
to ignore all the contributions that have been made in the
past.
Chairman Young. The gentleman's time has expired. I have
got to go to another--I have a bunch of students down there, I
have to speak to them for a moment. Ms. Norton, I'm going to
suggest to you, as Attorney General, if you can give me some
ideas of how to improve this Act by writing some legislation, I
would deeply appreciate it.
And, Ms. McGinty, I officially am going to ask you about
the Chugach National Forest. We're facing a terrible fire
problem, worse than anything you've ever seen, and we're having
to face a fire NEPA requirement. Otherwise, they're going to
wait until it burns and then it's going to be heard. We might
lose two communities. It's a classic example of the stupidity
of this Act and how it's not properly implemented.
Lastly, my Forest Service down in Arizona is suddenly
requiring a rod and gun club to fire off a NEPA environmental
impact statement 35 years after this rod and gun club began
operating. Yet I have pictures here, and I'm going to submit
them to you, of the Forest Service dump right next to the rod
and gun club for which they never filed a NEPA requirement, and
you'll want to look at some of these examples of your agencies.
I have requested documentation from them. They have not given
it to me yet. They are going to get subpoenaed, if they don't.
But this is an example of why there's such a real bad
feeling about the agency. They require a rod and gun club, who
never had an accident, to file an environmental impact
statement and then they turn around and they have their own
dump, and they never had an environmental impact statement on
that adjacent Federal land.
So there are some real questions about how it's being
implemented.
Mrs. Cubin is going to chair the meeting for a period of
time.
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Ms. Cubin. [presiding] Thank you, Mr. Chairman. The next
person in line for questioning I believe is Representative
Pombo.
Mr. Pombo. Ms. Norton, in your statement, you talked about
a voluntary self-audit statute that was developed in Colorado.
I would like to hear a little bit more about that and what your
experience has been with that particular statute that was
adopted in Colorado.
Ms. Norton. Thank you, Representative. While this is not
directly on point with NEPA, it certainly has a lot to do with
Federal/state relations in the environmental area. Colorado
adopted a law that would make a self-audit privilege and some
degree of immunity available to companies that want to see if
they have any environmental problems.
It's essentially an incentive for companies to do voluntary
self-audits and then to correct any environmental problems that
they might find.
The State of Colorado felt, and this was on a bipartisan
basis, felt that it would be more likely that companies would
come forward, find problems and correct them if we rewarded
them for that instead of bashing them for doing it.
The EPA has been fighting with us. They are looking at
disapproving some of our programs because they think we need to
punish companies that come forward with self-audits rather than
providing them certainty about how they will be treated when
they come into the regulatory process.
I testified yesterday in front of the Commerce Committee's
subcommittee on that and I would be happy to provide you with a
copy of my testimony.
Mr. Pombo. Yes. I would like that and I would like to
explore somewhat what kind of a relationship that creates
between the state agencies and the Federal agencies when you
have that kind of a confrontational relationship that is being
developed.
Ms. Norton. We had, unfortunately, a very confrontational
relationship. They sent--the EPA sent us a 23-page single-
spaced list of essentially interrogatories about how our state
statute would operate, and that's on a two-and-a-half page
statute.
They have not allowed us to interpret our own law and have
even questioned the way in which we interpret our own law.
We're going into a negotiation process with them next week and
we are hopeful that we will be able to maintain the spirit of
Colorado State law.
We find it very disturbing that Federal agencies have not
allowed us to determine whether our hypothesis is correct. Our
hypothesis is that this will be beneficial for the environment.
We can only find out if the Federal agencies will allow us to
carry forward with our experiment.
Mr. Pombo. Now, Governor, in your statement, in your
prepared statement, you talk about the relationship between the
Federal Government and the states and you state in here that
the Federal Government was created by the states, not the
states by the Federal Government, and that you believe that the
states should have primacy over environmental laws and over the
laws in your particular state.
How has your relationship been in operating the state, in
working with these different Federal agencies? Has it been
cooperative? Have they always been willing to listen to your
ideas and accept the solutions that have come up with people
that live in your state?
Mr. Geringer. As with many western states, the states feel
more like they are the last to be sought out rather than the
first, and that's why we brought these issues to the forefront.
As the Act and the CEQ regulations point out, where there is a
responsibility, and I mentioned several of those areas where
the states, within their states, have primacy, the Clean Air
Act, the Clean Water Act as examples, where the states have
primacy, they are not consulted the environmental impact might
be or to even do the environmental assessment that leads to the
EIS.
It is that frustration that leads to delays, it leads to
litigation, it leads to the costly expenditure of funds. If we
were to just simply reallocate some of those inefficient
expenditures, you could triple the size of the CEQ under the
same budget.
Mr. Pombo. Have there been instances where your state has
been named the lead agency and the Federal Government accepted
the findings that you have come up with?
Mr. Geringer. None in recent memory.
Mr. Pombo. None in recent memory? If this law was working
the way that it was supposed to, would there not be instances
that you could bring out?
Mr. Geringer. That would certainly be our goal,
Representative, and as I look at the CEQ regulations that deal
with exactly that point, it says that the agencies of the
states should be consulted to eliminate duplication of other
procedures.
It talks about joint planning processes, joint
environmental research and studies, joint public hearings,
joint environmental assessments, and it says unless those state
agencies are specifically barred by some other law, they shall
be consulted.
That's pretty directive.
Mr. Pombo. And have your consultations been in the manner
in which is suggested in the law?
Mr. Geringer. No.
Mr. Pombo. Do they normally come by and meet with you
before a decision is made?
Mr. Geringer. Typically after. We should look at the
planning process and at the scoping process, which can be very
helpful in guiding toward an outcome and a more efficient way
time-wise, as well as study-wise. Perhaps as an indication of
that, one of the land management agencies in the west developed
its strategic plan and after they had gone through the whole
process of strategy, listing objectives, goals, strategies to
get there, then they dropped it off.
So even in the entire realm of resource management, not
just the EAs or EIS's, the attitude seems to be we have to
comply with our regulations first and then we'll go to the
states.
As we discussed an overall reinvention, to use that word,
with a group of people that Katie McGinty made reference to,
the Institute for Environment and Natural Resources at the
University of Wyoming, another Federal agency said, you know
what this really means is that we're going to have to rewrite
all of our regulations.
And I kind of said, ``Well, duh.''
Mr. Pombo. Thank you.
Mrs. Cubin. I think that it's actually my turn to ask
questions, even though I'm sort of not in line over there.
Governor, you just read an excerpt that said that the--to
paraphrase--that the different governmental entities shall be
consulted. Now, I think what we ran into with Cave Gulch in the
Natrona County area was that the Federal agencies said, well,
we consulted them in the scoping process and their input in the
EIS, but did not grant them cooperating agency status.
And to me, that--I mean, I don't know. So Senator Thomas
has a bill that he introduced in September 1997 that includes--
there's just three words. It says that Federal, state and local
entities should be considered as cooperating status agencies.
Would you agree with that legislation? Would you support
it?
Mr. Geringer. I do. In fact, Madam Chairman, I think it's
the simplest bill I've ever seen.
Mrs. Cubin. Isn't it nice?
Mr. Geringer. It's about a three-word change to an entire
document, and the change perhaps suffers from the disadvantage
of being logical.
Ms. Cubin. As we recall, it's usually those 500 pages that
pass just like that and these little ones are a little bit
tougher.
Ms. McGinty, do you support that legislation?
Ms. McGinty. Let me say I am very supportive of----
Ms. Cubin. No, no, no, no, no. No. The legislation.
Ms. McGinty. The legislation? No, I don't support the
legislation.
Ms. Cubin. And why is that? Because that seems to
contradict the testimony that you've given here today.
Ms. McGinty. Well, first, I think as this Congress has said
repeatedly, we don't necessarily need new laws and more laws
and more regulation. The provision that you referred to----
Ms. Cubin. Your testimony has been that amply provided for
and it's a question of whether the agencies are implementing
that. I think the Governor can testify that every time an issue
like this has been raised, to me, we have worked to effectuate
that provision of the regulations which gives the states and
the counties a seat at the table.
Ms. McGinty, honestly, I can tell you firsthand that you
may have worked toward that, but the length of time that it
takes turns out to be quite costly for the private entities
that are waiting--and then when the final result comes out,
many, many times what the states, counties and local
governments have considered to be pertinent has been
disregarded, particularly when we talk about socioeconomic
impacts.
But we are going to have a second round of questioning. To
me, it seems extremely contradictory that you can sit here and
tell us how you want all this input, you want this, but then
when it comes down to the nitty-gritty, it isn't there. It
sounds a little disingenuous.
But I'll get back to that line of questioning on the second
round, because at this time I would like to ask the Governor
some more questions.
Do you think or are you aware of circumstances where the
roadless area moratorium prevents any activities that are
needed and that by not doing, will have an adverse impact on
the environment?
Mr. Geringer. Madam Chair, the roadless moratorium through
the U.S. Forest Service has a more far reaching effect than
what has been publicized. I think the first group that we heard
from, or heard about, was the timber industry. We've seen
already limitations on our state agencies that oversee wildlife
management, resource management, such as stream gauging for
water, the opportunity for recreation and hunting.
The impact on the full range of activities on the lands and
management as far as the environment goes is more significantly
impacted than just the timbering industry, although that's been
the only focus.
So the decision of the chief of the Forest Service to
impose a moratorium probably is subject to his own NEPA
requirements. I don't think he thought beyond just the impact
of building roads for timbering. What we see through the
roadless moratorium are effects that more significantly impact
other areas than just timbering.
Ms. Cubin. How does NEPA or does NEPA, in your opinion,
address the socioeconomic impacts on local communities and does
this moratorium have an effect on local communities and, if so,
what is that effect?
Mr. Geringer. Well, the moratorium has, with other
examples, the general trend among the Federal agencies is to
say that social and economic impacts are not a part of the
environment, and that's why I made the reference, Madam Chair,
in my remarks to the fact that when it comes down to it,
poverty and loss of community are definitely part of the human
environment, which were mentioned consistently in the Act and
in the regulations.
Impact on inter-generational sustainability, all those are
issues that involve an interrelationship. Even the CEQ
regulations acknowledge that there is an interrelationship
between environmental and economic issues.
I certainly heartily endorse what Chairwoman McGinty has
said, that that relationship between economic, environmental,
and social issues has to be recognized.
Ms. Cubin. Do you think it has been in the past?
Mr. Geringer. I think it's been--because the pendulum tends
to swing one way or the other. At first, there was a tremendous
swing toward just environmental protection.
Ms. Cubin. And what time-frame would that have been in?
Mr. Geringer. That was back in the late 1960's, early
1970's. And now, with the advantages that have been gained
through that, that's been overshadowed by a swing that needs to
return back to more of a neutral position, where there is a
balance between limitations on economic activity.
It's as though humans are not a part of the environment and
I think we ought to recognize that they are.
Ms. Cubin. One last question, very quickly. Are grazing
permits in your state, in our state, being renewed or delayed
by NEPA and what effect is that having on the economy for the
entire state?
Mr. Geringer. As with anything, if there is a delay in the
permit processing or application, you miss the timing of an
event.
Ms. Cubin. So there are delays?
Mr. Geringer. There is definitely an impact on how that
applies.
Ms. Cubin. Thank you very much. Congressman Chenoweth.
Ms. Chenoweth. Thank you, Madam Chairman. Ms. McGinty, last
time you were before the Committee, we discussed the American
Heritage Rivers Initiative. That was September 24th of last
year. You testified that the initiative's authority lies in
Section 101(b)(4) of NEPA.
I have a copy of NEPA and I have studied that pretty
carefully. I asked for a legal analysis as to why you believe
that that section, which simply lays out the policies and the
goals of the Act, why that would have any actual authority in
it.
As I read it and as other attorneys have read it, it has
none whatsoever. I have not received that legal analysis yet
and so I would very much appreciate receiving that.
Ms. McGinty. Thank you, Congresswoman. And in addition to
other venues where we have discussed this, that analysis, of
course, is fully laid out in our responsive brief to your brief
in the lawsuit you filed against us and that the court has
dismissed.
Ms. Chenoweth. That is being appealed. But I asked for a
legal analysis to be sent to the Committee.
Ms. McGinty. Sure. Happy to do that again.
Ms. Chenoweth. So if you would do that. You also indicated
in your testimony here that there was some language involving
emergencies and exemptions in NEPA.
Ms. McGinty. Yes.
Ms. Chenoweth. That would allow forest supervisors to be
able to exempt certain environmental processes under NEPA.
Ms. McGinty. Design wholly new processes that fit the
emergency situation at hand, yes.
Ms. Chenoweth. Where is that located in NEPA?
Ms. McGinty. It is in the regulations and I would have to
respond for the record in terms of the exact provision in the
regulations. But any natural resource manager can approach CEQ
and say I have an emergency situation on my hands, I propose
these emergency procedures.
Ms. Chenoweth. So it's not in the law? It is? OK. It's in
the Code of Federal Regulations.
Ms. McGinty. The Code of Federal Regulations, yes.
Ms. Chenoweth. All right. And it's also in the National
Forest Management Act, too.
I wanted to ask you several questions and they'll go pretty
quickly. Included in your funding request before Congress are
funds needed to support the American Heritage Rivers
Initiative, isn't that correct?
Ms. McGinty. Well, we do not have a specific line item on
that initiative. It is part of our overall effort to reinvent
the way that environmental programs are implemented.
Ms. Chenoweth. Did you know that Section 624 of the
Treasury Postal Act states that no part of any funds
appropriated in this or any other Act shall be used by an
agency of the executive branch, other than for normal and
recognized Executive-Legislative rela-
tionship, for publicity or for propaganda purposes, for the
preparation, distribution or use of any kit, pamphlet, booklet,
publication, radio, television or film presentation designed to
support or defeat legislation pending before the Congress,
except in presentation to the Congress itself.
So there are statutes that tend to limit your activities in
this area, is that not correct?
Ms. McGinty. Yes. Congresswoman, I am aware of that
statutory provision.
Ms. Chenoweth. Let's look at the compliance with Section
624 of the Treasury Appropriations. We'll focus first on the
publication and distribution of literature, even though that is
only part of the prescription of the statutes.
You have distributed editorials, articles and feature
pieces in key media outlets and publications that use and
reflect the tone of key messages in this plan. Would you call
that a publication or distribution of literature?
Ms. McGinty. Well, I will absolutely say that we have
engaged in extensive communication and outreach to the public
on the American Heritage Rivers Initiative, as on any
initiative that we have been involved.
Ms. Chenoweth. And you've flown--you personally have flown
around the country, as well as have your staff, to push the
American Heritage Rivers Initiative, to give speeches and to
promote the public support. Is that not correct?
Ms. McGinty. I would be hard pressed to think of an
invitation from citizens around the country that we have
denied, when they have asked us to come and visit with them
about this program. I can't think of one request for
information or our personal presence that we have said no to.
Ms. Chenoweth. So your answer----
Ms. McGinty. We have been there when asked.
Ms. Chenoweth. So your answer is yes, right?
Ms. McGinty. We have responded to the invitation of Members
of Congress or individual citizens who have asked us to come
and answer their questions.
Ms. Chenoweth. The American Heritage Rivers Initiative
program will be costing between five and ten million dollars,
is that not correct?
Ms. McGinty. The American Heritage Rivers program will seek
the better coordination and distribution of the programs and
resources that are already provided for in a variety of
different statutes.
Ms. Chenoweth. And that amounts to about five to ten
million dollars. Is that not correct?
Ms. McGinty. Congresswoman, I would have to respond for the
record because there could be many programs that are better
coordinated through this initiative, whether it is--an example
I shared with the Committee before, making available to
communities Defense Department software which enables----
Ms. Chenoweth. That's not quite the question I asked.
Ms. McGinty. Well, I use it only as an illustrative example
of why it's hard for me to put a specific price tag on it.
Ms. Chenoweth. Well, let me make it easier for you, Ms.
McGinty. The American Heritage Rivers Initiative has a new web
site, is that not correct? And it contains materials, such as
speech materials and so forth, but it does have a web site.
Ms. McGinty. Since its very inception, again, as a matter
of being able to have the public have as much information as
they need, from its very inception, we have had a web site.
Ms. Chenoweth. Is that the publication or distribution of
literature?
Ms. McGinty. From a legalistic point of view, I would have
to again respond for the record, but certainly the whole point
of it is to provide information to the public.
Ms. Chenoweth. Let me wind this up. Even using the
narrowest construction of the narrowest section of Section 624,
the prohibition, which was signed into law by the President and
it is now the law of the land, right? And since it's the law of
the land, you are bound by its provisions, right?
Ms. McGinty. Absolutely.
Ms. Chenoweth. Do you believe that one of your
responsibilities is to obey the law?
Ms. McGinty. Absolutely.
Ms. Chenoweth. Even by the very narrowest construction of
Section 624, that prohibition which reaches any activity of the
publication or distribution of literature, we have just
identified a number of violations of that statute alone.
Can you really say that you're complying with Section 624?
You did say for the record you were familiar with it.
Ms. McGinty. Absolutely and without doubt.
Ms. Chenoweth. You are complying with it.
Ms. McGinty. Absolutely and without any hesitation or doubt
whatsoever.
Ms. Chenoweth. I do want to say I will let your answer
stand, but I do want to say that, for the record, the case was
dismissed in the American Heritage Rivers Initiative. It will
be appealed. It was dismissed simply on standing and not on the
merits of the case. We will be perfecting the standing issue
and we will be back.
Thank you.
Ms. Cubin. Thank you, Ms. Chenoweth. Mr. Hill.
Mr. Hill. Thank you, Madam Chairman. Katie, I wanted to
stay on this issue of American Heritage Rivers, just for
clarification. When you appeared here earlier, you made a clear
statement that if a Member of Congress wanted to withdraw
applications from within their district, they would have veto
power over any application. Do you agree with that earlier
statement?
Ms. McGinty. Yes, absolutely.
Mr. Hill. And that is still the position of the
Administration.
Ms. McGinty. A Member of Congress has veto authority over a
river that runs through his or her district, absolutely.
Mr. Hill. I wrote to you in December and again in January
asking that Montana be withdrawn. I just yesterday received a
letter from you confirming that the Yellowstone River will now
be included. There are other applications pending in Montana.
Can I expect that those will receive confirmation that those
with also be withdrawn?
Ms. McGinty. Congressman, if you are requesting that every
river in your district be withdrawn from the program, as I have
said before, that is your right to do that and it would be
withdrawn.
Mr. Hill. Well, let me read to you what I wrote to you,
just so we're clear about this.
Ms. McGinty. Yes.
Mr. Hill. So that we don't have to exchange more
correspondence. In December, I wrote to you and I concluded the
letter saying that I respectfully make the request that the
Yellowstone and its tributaries and other rivers in Montana not
be considered as part of the American Heritage Rivers
Initiative. I believe this request should be honored in light
of the above statements.
Your office said you weren't clear and would you write
again. And so I wrote again January 21st and I opened the
letter with this. I am once again writing to inform you of my
request to not include any of Montana's rivers as part of the
American Heritage Rivers Initiative. Despite my long-standing
statements of concern and a previous letter requesting Montana
not be considered part of the initiative, I am mystified over
your staff's insistence on the need of another letter and
communication on this issue.
Do you think that that's clear, in your mind, that I wanted
all of Montana rivers withdrawn?
Ms. McGinty. I think I understand fully the question you're
posing, yes.
Mr. Hill. So can I then be assured that Montana rivers will
not be considered?
Ms. McGinty. I hesitate to ask this question, but,
Congressman, as I understand it, you are the only Congressman
from Montana.
Mr. Hill. I represent all of Montana. And, incidentally,
Senator Burns also asked to be out of the program.
Ms. McGinty. The answer is yes.
Mr. Hill. So that's clear, because these are still on the
web site as being under consideration, the other applications.
Will they be noted and removed?
Ms. McGinty. It is clear that you have now and with your
letters previously withdrawn rivers in Montana from
consideration. Yes, sir.
Mr. Hill. Thank you. And as you know, the Committee has had
a great interest in this issue. On February 10, you were sent a
letter from Representative Bob Schaefer and 60 other members,
including 15 from this Committee, requesting that the Blue
Ribbon panel of experts on the American Heritage Rivers, which
is to be named, I guess, will hold a day of hearings in
Washington at its regularly scheduled meeting.
What decision have you made to accommodate that request for
public hearing in D.C. by this panel of experts?
Ms. McGinty. Let me say, Congressman, that the whole thrust
and, I think, related to Congressman Chenoweth's questions, the
whole thrust of this initiative has been public participation
and outreach. You will see no difference as we--in fact, the
FACA itself is about having the public involved in making the
decision. It will be an open process. There will be opportunity
for the public to be involved.
I would like, however, to have those FACA members appointed
so that they can also be responsive to you with regard to the
details.
Mr. Hill. Thank you. Going over to the NEPA process itself,
is it your view that NEPA requires that the social and economic
impacts--aspects, I would put it--should be integrated into the
alternatives that are proposed?
Ms. McGinty. Absolutely. NEPA is triggered when there is a
significance--when a significance action of the Federal
Government will have major impact on the environment. But once
triggered, it calls for environmental, social and economic
analyses.
Mr. Hill. And integration.
Ms. McGinty. And integration, yes.
Mr. Hill. The point I'm getting at is that these should
always be integrated into the alternatives. Would you agree
with that?
Ms. McGinty. I absolutely agree, yes.
Mr. Hill. Have you spent any time looking at the Interior
Columbia Basin study?
Ms. McGinty. Some.
Mr. Hill. And the proposed management plan. One of the
complaints about that, and, frankly, I mean, I think widely
accepted, is that the social and economic impacts have not been
integrated into the alternatives.
As a matter of fact, what has happened is that the
alternatives have been analyzed in terms of their impact on the
social and economic considerations, and that's a substantial
difference. Would you agree?
Ms. McGinty. I would agree and would be happy to pursue it
with you. I am not as familiar with those details, though.
Mr. Hill. And going to the road moratorium. Do you believe
that the road moratorium is subject to NEPA?
Ms. McGinty. In fact, there is a NEPA process underway on
the road moratorium proposal, yes, sir.
Mr. Hill. And the social and economic impacts would be
considered as part of those integrated into the alternative
that has already been selected.
Ms. McGinty. I very much believe that the social and
economic impacts should be considered. Now, I will tell you----
Mr. Hill. No. Integrated. We said earlier integrated.
Ms. McGinty. I want to share with you what I think is a
problem and it has been an issue over the years, and that is
whether or not social and economics get into environmental
assessments, as well as EIS's. It's my view that they should
and I would just share with you that I think it has not been
the practice that the social and economic concerns are as fully
integrated into EAs as they have been in EIS's, and I think
that that's an area for change and improvement.
Mr. Hill. Madam Chair, if I could just ask one more
question. In the process of the development of this road
moratorium, did you have discussions with Chief Dombeck with
regard to the NEPA aspects of this and the advisability of this
policy?
Ms. McGinty. I did have conversations with him on both the
policy overall and the NEPA application, too.
Mr. Hill. And when did you initiate those discussions?
Ms. McGinty. I would have to respond for the record, but I
certainly did have several conversations with the Chief.
Mr. Hill. Could you give us an approximate time when you
think--you had several conversations.
Ms. McGinty. Yes.
Mr. Hill. But do you have an idea of when the first one
might have been?
Ms. McGinty. In the fall perhaps.
Mr. Hill. Fall of 1997?
Ms. McGinty. Late fall perhaps of 1997, just before
Christmas.
Mr. Hill. I find that interesting because Chief Dombeck, in
his testimony, advises that he had no conversations with you
with regard to the road moratorium issue.
Ms. McGinty. Well, I would have to see what specifically he
was referring to, but I was apprised. I did discuss with him
the road moratorium.
Mr. Hill. Thank you, Madam Chairman. Thank you.
Ms. Cubin. The gentleman from Utah, Mr. Cannon. That's OK.
I was going by seniority, but if you two can work it out. The
gentleman from Nevada, Mr. Gibbons.
Mr. Gibbons. I appreciate your kind consideration.
Ms. Cubin. I'm just trying to fair to you.
Mr. Gibbons. And the senior gentleman from Utah that's also
here. Ms. McGinty, I just want to followup with what Mr. Hill
said about the American Heritage Rivers Initiative. I also sent
you a communication, a letter requesting an exemption from all
rivers in the 2nd District of Nevada. The 2nd District of
Nevada is 99.8 percent of the territory of Nevada, except for
the downtown urban area of Las Vegas, which has no rivers.
I have yet to hear back from you on our request. Can I
assume then, because of our request for exemption, that no
river in that area of the 2nd District of Nevada will be
included?
Ms. McGinty. Yes, sir.
Mr. Gibbons. Thank you. All this talk about consultation
with states over environmental projects and actions that are
taking place and local governments, would you sort of balance
out, for my education, Yucca Mountain in Nevada and the DOE's
action and state consultations?
Ms. McGinty. Yes, sir. In terms of what the state
consultations that have been had or have not been had, I am not
aware of the details with regard to that specific issue. But I
think the issue is very illustrative to come back to the
legislation that Congresswoman Cubin had raised.
I would think some members of the Committee might give
cause to the notion that the county in this case in Nevada
would have decisionmaking authority, for example, as to whether
Yucca Mountain would go forward.
Mr. Gibbons. Or even the State of Nevada.
Ms. McGinty. Or if the State of Nevada would have that kind
of authority and, therefore, might want to take a second look
at the proposed legislation. I think Yucca Mountain is a very
good example as to why a broad-brush approach doesn't
necessarily serve everyone's interest.
Mr. Gibbons. In other words, what you're saying is the
State of Nevada should have no say in this issue.
Ms. McGinty. No. I would say very strongly that the State
of Nevada should. I am just suggesting that some members of the
Committee may have some pause about that, given the legislation
that's been introduced, for example, to override the state's
views on the Yucca Mountain issue.
Mr. Gibbons. Ms. McGinty, moving on, what actions are you
specifically taking to expedite the time delays between the
time an environmental impact statement is asked for and the
time it is granted and the permit is granted? Today we are
seeing numerous years, hundreds of thousands of dollars
expended, jobs at risk in order for many industries to get a
permit.
Ms. McGinty. Yes.
Mr. Gibbons. And it is an unreasonable--in fact, it's an
indefensible practice to delay, delay and delay. I want to know
what you are doing to change that and I would like you to tell
us what a reasonable period of time would be for you to issue a
permit.
Ms. McGinty. Well, sir, first of all, I do not issue
permits, but let me respond to the thrust of your question.
First, I have begun to resurrect that part of the regulations
which gives the permitees the right to negotiate a NEPA
schedule, so that there would be a schedule that is agreed
upon.
Another initiative that we have begun and related to that
is that there would be performance indicators for an agency,
which indicators would include how many times have you granted
a permitee the right to negotiate a schedule with you.
Related to that, I want to come back to one of the
suggestions that Governor Geringer had made, because I think
it's one of the most important new phases of natural resources
management, and that is the idea of adaptive management. Get on
with the process, get on with the project now, with the idea
that you monitor it and you can change course if need be down
the road, but don't wait until the perfect documentation or the
perfect scientific thesis is written.
Mr. Gibbons. Well, what problems I see in all of that
proposal about a negotiated time schedule is that it holds
agencies and industries hostage. It holds them hostage because
only those that can afford to pay will get an expedited EIS.
The cost of these EIS, environmental impact statements----
Ms. McGinty. Yes. Yes.
Mr. Gibbons.----is an enormous burden that ends up being
delayed and delayed throughout the practice. I just wanted to
get an estimate of the time you thought would be a reasonable
time and I see that that's a little bit complicated to come up
with a direct answer.
And I just wanted you to also look at this picture, that is
the Dixie National Forest in Utah, and take out the meadow that
you have there in the foreground and put Lake Tahoe in it and
it will show you the same theme, the same picture, with a lake
in the middle, that has beetle-infested, fuel for a dangerous,
disastrous, deadly forest fire, and would ask that if we come
before your agency to show you the same conditions, will you
grant that agency emergency waiver status to deal with that
problem?
Ms. McGinty. If the Forest Service comes forward, as you're
suggesting, with an application for emergency procedures, we
would sit down with them immediately.
Mr. Gibbons. So it's not the forest manager.
Ms. McGinty. It can be the forest manager. It can be the
person who is on the ground, the forest supervisor. Yes. I
think that, in fact, was the case in Texas. We deal with the
people that were right there on the ground.
Mr. Gibbons. That's what I want to get. I just want to find
somebody that I can go to.
Ms. McGinty. Yes.
Mr. Gibbons. That's identifiable. I don't want a big, broad
agency. I want the manager of this forest to come to you and if
I can do that, you will grant him an emergency waiver.
Ms. McGinty. I would have to work with him or her on the
specifics of it. It's not a carte blanche, but it is--there is
an opportunity for emergency provisions in the statute and I
would be very happy to work with that forest manager if there
is an emergency situation, yes.
Mr. Gibbons. I see my time has expired, Madam Chairman.
Thank you very much.
Ms. Cubin. Before I recognize Congressman Cannon, I do have
to make a point, since you brought up the cooperating agency
status and said that Yucca Mountain might be why the Thomas
bill is not needed.
I have to point out that because an entity or a
governmental entity has cooperating agency status does not mean
that they can direct unilaterally what the result of the EIS or
the EA or the recommendation will be.
So they are just at the table and have a bigger role. So I
think that your statement supports my position.
Mr. Cannon.
Mr. Cannon. Thank you, Madam Chair. Gale, it's nice to see
you again, and, Governor and Ms. McGinty, I appreciate your
testimony and the answers to the questions so far.
I am motivated a little bit by the gentlemen from Nevada
and Montana who have asked you about their states being exempt,
but unfortunately, I just asked my staff, we have not sent a
letter asking that my district be exempted from the American
Heritage Rivers Initiative.
I'm wondering if we can do that here just by my asking you.
Ms. McGinty. If you are asking that rivers in your district
be withdrawn from consideration under this initiative, I hear
that and you have every right to do that and they are
withdrawn.
Mr. Cannon. As the head of the CEQ, you have the authority
to put my mind at ease here on record with that, right?
Ms. McGinty. I'm happy to followup with a letter to this
effect. But it is a provision within the initiative itself that
a Member of Congress can withdraw rivers in their district from
consideration.
Mr. Cannon. Thank you. I appreciate your doing that. If you
would like to follow that up with a letter, I would like to get
the letter. I'm still waiting for other things, I would remind
you, from your agency.
You heard Congressman Hansen vent a little bit. I would
like to go back over some of his concerns and actually hear
what you think about that.
He characterized your discussions through e-mail with the
solicitor of the Department of Interior, Solicitor Leshy, as
agreeing that if an agency starts the process, then NEPA
applies, but if the President starts the process, NEPA may not
apply. Do you think that's a fair characterization of the law?
Ms. McGinty. I think it's actually a very important
principle of law that Presidential action, whether it's NEPA or
very many other statutes, those statutes don't apply to
Presidential action, military defense, the international trade.
The President is given prerogatives to act on behalf of the
interest of the----
Mr. Cannon. In the case of the Antiquities Act, where you
have a non-delegable authority, I think that was the context in
which this discussion took place and the e-mails between you
and your staff and Mr. Leshy and his staff.
Is that a fair characterization that, in fact, if the
President starts it, it's possibly exempt from NEPA, but if the
agency starts the process, then NEPA applies?
Ms. McGinty. It is absolutely the case that NEPA, again, as
other statutes, do not apply to Presidential action. That is
absolutely the case. And it's also absolutely the case, as you
are suggesting, that should an agency initiative a process to
declare--that would lead to the declaration of a national
monument, I would have to respond for the record on that, where
the lines are with NEPA's application or not.
Mr. Cannon. First of all, I'm just asking you about the
characterization of the e-mail that went back and forth, which
I know you read because you responded to the press about that.
Is that a fair characterization of what went back and forth
between your office and Mr. Leshy's office? That
characterization being that the agency, in this particular
case, under the Antiquities Act, begins the process, then it's
subject to the requirements of NEPA.
Ms. McGinty. I do believe that is right. I would have to
review the e-mail in question, but I do believe it is right. It
is absolutely the case that NEPA does not apply to Presidential
action. I believe what you are saying is right with regard to
agency action.
Mr. Cannon. You're a lawyer, as I recall. Is that right?
Ms. McGinty. Not licensed to practice in any state of the
union, however.
Mr. Cannon. Have you ever practiced law?
Ms. McGinty. No, I haven't. I went to law school. I worked
for various firms during my summers in law school, but I have
never practiced law.
Mr. Cannon. Did you look at this issue legalistically? I
mean, lots of e-mail went back and forth and, in fact, many of
those e-mails were, I believe, authored by you, saying that you
needed the President's--a letter from the President to initiate
the action so as to avoid NEPA.
Did you look at those letters as a lawyer or as a non-
lawyer?
Ms. McGinty. Actually, the action was initiated prior to
the President's letter. The action was initiated in the
President's personal conversation with the Secretary of
Interior. I believe on----
Mr. Cannon. We had an oral communication here, an oral
interaction between the President and the Secretary of
Interior. I heard that in the press that you said that. I
wondered if that was actually an accurate quote, but that was
not my question.
My question was, as you sent those letters, those e-mails
saying that you needed a Presidential letter to start the
process, were you doing that legalistically? Were you thinking
as a lawyer or were you taking advice from other lawyers,
either at CEQ or at Interior?
Ms. McGinty. No. I was fulfilling the President's directive
to me that he wanted the process initiated to review whether a
national monument pursuant to the Antiquities Act could be
established in this area. Again, because of his grave concern
about legislation that was pending on Capitol Hill that he----
Mr. Cannon. But you have not answered the question. Pardon
me. I'm just wondering, when you authored those letters, when
you said we need the--you said this several times, as I recall,
we need the President to sign a letter, were you thinking then
as a lawyer or were you acting on advice of other lawyers?
Ms. McGinty. I was acting at the direction of the President
to try to fulfill his directives that he wanted this process
engaged and a----
Mr. Cannon. With all due respect, Ms. McGinty, the e-mail
was very clear that you were going to the President with this
idea and that you wanted to go with a letter, not at his oral
direction.
Ms. McGinty. If I recall, if I am thinking of the e-mail
you're talking about, that e-mail was to the staff secretary.
The function of the staff secretary in the White House is to
secure the President's review of documents, often that he has
requested, and to secure then his signature of those documents.
That is the e-mail that I believe you are referring to. The
President requested the action.
Mr. Cannon. No, no, that is not. There are e-mails between
you, I believe, and I believe it's the Interior Department and
other members of your staff, not the document controller of the
President. But, still, I'm wondering, did you act as a lawyer
when you did that or whose advice--did you get counsel as to
that issue and if so, whose counsel was it? That is, legal
counsel.
Ms. McGinty. I was only fulfilling the President's request
of me that the Interior Department engage in the analysis
required under the Antiquities Act to inform his decision as to
whether or not----
Mr. Cannon. And when did the President give you that
direction?
Ms. McGinty. It was around the time that he spoke to the
Secretary of Interior, so around July 4 of 1995 or 6. Six, I
suppose.
Mr. Cannon. May I have an additional 5 minutes to continue
this line of questioning or would you prefer that we come back?
Ms. Cubin. Actually, Representative Cannon, we are going to
have two rounds and so if you wouldn't mind coming to that next
time.
Mr. Cannon. Yes, thank you.
Ms. Cubin. And besides that, it's my turn, since
Representative Pombo left, so hey.
Ms. McGinty, you made it very clear and I don't argue this
point because I am not an attorney and I don't know, but that
NEPA does not apply to Presidential actions.
Ms. McGinty. Yes, right.
Ms. Cubin. But isn't the purpose of NEPA, in spirit, if not
in the word of the law, to protect the resource? It's yes or
no. I mean, it's to protect----
Ms. McGinty. In part, I'd say--as we've been talking about
before, there is an environmental component of NEPA, but it's
broader. I think, to use current buzz words, it's about
sustainable development is what NEPA is about.
Ms. Cubin. Fine, fine. OK. So now, to quote NEPA
regulations, this is the quote, ``Major Federal actions
significantly affecting the quality of human environment are
situations where the NEPA process should be triggered.''
Ms. McGinty. Yes.
Ms. Cubin. Now, isn't it, again, a bit disingenuous to say,
well, the President doesn't have to--or NEPA doesn't have to be
applied to Presidential action, when, in fact, that is what the
purpose of NEPA is? Whether it's strictly spelled out in the
law or not, because what the law actually says is that the lead
agency should identify potential cooperating agencies.
I mean, basically, if, in fact, the letter of the law
wasn't violated, isn't the spirit of the law violated in this
situation? Because certainly there are enormous impacts to
people by Escalante.
Ms. McGinty. I think--and related to Mr. Cannon's point,
there are very few areas where the prerogative, through
legislation, through tradition, through the Constitution, is
retained specifically and exclusively by the President of the
United States solely.
In almost all instances, the authority is delegated to the
agencies.
Ms. Cubin. And this is considered an emergency, is that--I
mean, the timing has been brought into question, that it was
done for political gain, and this was considered an emergency
that, even while people were being told this is not going to
happen and other folks were being loaded in buses in Colorado
to drive them down to Arizona, to make this announcement--I
mean, come on, Katie.
Ms. McGinty. Well, I would not say that this is an
emergency in the sense of some of the other issues we've been
talking about in terms of fires breaking out. We certainly
were, and had communicated to the Congress, gravely concerned
about the legislation that was moving on Capitol Hill, but it
is true that the Antiquities Act relegates certain powers and
prerogatives to----
Ms. Cubin. I understand that, but that doesn't direct--but
that does not answer the question that I am trying to get
answered. So let's just move on.
Like the others, I would like to have it on the record that
we wrote a letter to CEQ and all of the rivers within the State
of Wyoming are not to be included in AHRI. Thank you.
One thing I have to say, though, is that I thought it gave
me reason for pause when AHRI was sold as going to be, you
know, local people are going to make the decision, even though
we have a river navigator that isn't answerable to anyone
except the political person who appoints him. But local people
are going to be the ones to make the decisions and yet it's
Federal people who are knocked out of the process when rivers
are withdrawn from consideration.
That just gave me reason for pause.
Ms. McGinty. Of course, if there were local opposition,
that also--significance local opposition, that is one of the
criterion on which an application is judged. There has to be a
demonstration of strong and broad-based local support.
Ms. Cubin. One thing that we have had a problem with in my
state, as well as--during a NEPA process, as well as the
Federal agencies working with the state to get the process
completed in a timely fashion, we have had a horrible problem
with the disagreement between Federal agencies, between the EPA
and the BLM and things like that.
Do you think that the CEQ has a role in establishing a
policy whereby different Federal agencies cannot get my
constituents in a deadlocked, money-losing situation?
Ms. McGinty. Yes, and----
Ms. Cubin. And are you working on that? I know at one time
you were working to streamline the process, but then I heard
that you stepped away from that. So what is the status on that?
Ms. McGinty. The answer to the first part of your question
is absolutely yes. One of the major and, I think, not well
implemented parts of NEPA is the scoping process, which process
requires that all of the agencies are going to have a piece of
this. Any agency is going to have an issue with regard to a
specific project, be at the table and bring those issues to the
fore in the initial stages of the project.
This is one of the top priorities in the overall
reinvention effort that we had launched. We had----
Ms. Cubin. But our problem was that the agencies were
brought together, but two Federal agencies disagreed.
Ms. McGinty. Yes.
Ms. Cubin. Which caused a long delay in any----
Ms. McGinty. Right. And the point of the scoping exercise
is supposed to be to iron out those differences and find a plan
that everybody can move forward together with.
Ms. Cubin. Just one last observation, because since I was
so strict with Mr. Cannon.
It was suggested to me, and regretfully so, that sometimes
this Administration appears to promote the Leona Helmsley
philosophy that laws are not for the Administration, but
they're for the little people, and, you know, when I see things
like Escalante and the American Heritage Rivers Initiative and
the questioning that Ms. Chenoweth brought forward on what the
legal role of government agencies is, it gives me cause for
concern.
The Leona Helmsley philosophy ought to be the least
philosophy considered by anyone in government, I think.
Mr. Pombo.
Mr. Pombo. I'll pass.
Ms. Cubin. Ms. Chenoweth.
Ms. Chenoweth. Madam Chairman, I will forego my next line
of questioning, but I would like to submit a letter for the
record from the Central Arizona Project Association, from
Robert S. Lynch, Chairman of the Board.
Ms. Cubin. Without objection.
[The information referred to may be found at end of
hearing.]
Ms. Cubin. Mr. Cannon.
Mr. Cannon. Thank you, Madam Chair. Going back to the
American Heritage Rivers Initiative for just a moment. There is
some question about what level of government the CEQ will
accept as opting out of the program for their area.
In other words, you have certainly the Governor, I suspect,
may be able to, and I'd like your response to that. But going
down through, how about county commissioners or mayors or
special districts within a town or political subdivision? Have
you--where are we on that?
Ms. McGinty. We have not granted the same veto kind of
authority to the full spectrum of government officials that you
just mentioned. Certainly we have with Members of Congress and
as this discussion illustrates, there are many such waivers we
have granted.
But very much related to this, an application has to
demonstrate broad-based and diverse local community support
before it will be positively considered.
Mr. Cannon. If a Governor asks to opt out, would you opt
out for the Governor?
Ms. McGinty. I can't--I am not aware of any such request
that we have had. For the most part, the requests have come
from Members of Congress, which we have granted.
Mr. Cannon. But you would weigh lower levels of government
in your process of deciding which waivers should be done.
Ms. McGinty. Yes.
Mr. Cannon. Let me just ask one other question on another
topic here. If you look at the picture to the your left, this
is an area that I--I have tracked horses through this area. I
grew up and spent a lot of my youth in my area.
One of the things I find disturbing is there is a group of
environmentalists or a thought among some groups that this kind
of devastation by pine bark beetles is natural and, therefore,
acceptable.
I take it when you earlier said that you had talked about
that with the Forest Service, that is not particularly your
view, but I would like to note that for the record.
Ms. McGinty. Well, every specific instance, I think we need
to have the scientists decide the land management--the land
managers decide what is the best course. But I will say it is
my experience that in almost all instances, the land managers
believe that some management of the resources is necessary, if
even just for the purpose of enhancing its environmental
quality. That just leaving problems fester is not a workable
solution.
Mr. Cannon. So you think that this is a mistake that we
have made, the picture that's represented here of the Dixie
National Forest is a mistake and we ought to be solving that,
if we can.
Ms. McGinty. Well, I wouldn't want to criticize the actions
taken by the land managers. I don't know what the situation has
been. Certainly this is not a positive development that there
is this kind of infestation, no.
Mr. Cannon. That's what I wanted to hear. Thank you. I
appreciate that.
Ms. McGinty. But, also, there are many and varied causes.
Sometimes it's lack of management. Sometimes it's overly
intense management. I think we realize----
Mr. Cannon. Right. We recognize there are all kinds of
cause, but ultimately, I understand you as saying that you
think this kind of infestation shows that a mistake has been
made and we need to do something to correct that. We're not
even talking about what to do to correct it. Maybe just NEPA,
maybe we do other things, but you think that this is a problem.
Ms. McGinty. Well, it could just be an act of nature, too.
I don't want to cast blame with and blame----
Mr. Cannon. Well, it's clearly an act of nature. These are
bugs that are killing the trees. That is clearly an act of
nature.
Ms. McGinty. And I would strongly suspect that it is linked
to management decisions that have been made in the past,
whether----
Mr. Cannon. Clearly you could have cut down a few trees 5
years ago and solved the problem. A few hundred acres would
have solved the problem and that didn't happen.
Ms. McGinty. That may be the case in this instance, but
there are other instances where clear-cutting, for example, has
greatly exacerbated these kinds of problems and given the
invitation for invasive species to come into an ecosystem.
Mr. Cannon. Well, but not this kind of bark beetle, which I
think we understand how it works and we know that you can
contain it if you do that.
Oh, the yellow light is on. Can you tell me, in just a
minute, who was at the meeting on July 4 with the President
when he communicated his interests orally about the creation of
a monument?
Ms. McGinty. The President spoke to the Secretary at a
Fourth of July celebration on--I think it was the Eastern Shore
of Maryland, where a Bald Eagle was released, and it was after
that--I think right after that ceremony that the President and
the Secretary had a conversation.
Mr. Cannon. Who initiated it, were you there?
Ms. McGinty. I was not there, no, sir.
Mr. Cannon. I take it then that Secretary Babbitt told you
about this or was it the President?
Ms. McGinty. No. I had spoken to the President about it
either before or after that, but certainly around that same
time.
Mr. Cannon. So did the President initiate the discussion or
did Secretary Babbitt?
Ms. McGinty. The President initiated the discussion.
Mr. Cannon. And did you initiate the discussion with the
President or did he initiate the discussion with you?
Ms. McGinty. Well, we had been engaged in an endless number
of discussions throughout the--since the inception of the 104th
Congress, when legislation relevant to these lands began to
move, and as you know, we had a whole series of actions that,
yes, I discussed frequently with the President, veto threats,
testimony against the legislation, and ultimately the
establishment of the national monument, all of which were
related to the same thrust that we had to, as you know, oppose
the legislation that was moving.
Mr. Cannon. Which legislation in particular was that?
Ms. McGinty. The legislation that would have removed
environmental protections from Federal lands in Utah.
Mr. Cannon. I'm sorry. What?
Ms. McGinty. I'm happy to provide it for you, but it was
sponsored by the Utah Delegation.
Mr. Cannon. Was it the wilderness bill?
Ms. McGinty. I'm sorry?
Mr. Cannon. Was it the wilderness bill that Jim Hansen
introduced that would have created 2.1 or 2.4 million acres of
wilderness?
Ms. McGinty. Right. That would have reduced from----
Mr. Cannon. So you felt compelled to do in a regulatory
fashion what Congress deemed not to do.
Ms. McGinty. Well, we were successful, I think, in opposing
the legislation, but that didn't happen, of course, until the
final days of the Congress, because there were still efforts in
the appropriations process to deny our ability even to----
Mr. Cannon. Are you suggesting that the regulatory process
is co-equal with the Congressional process?
Ms. McGinty. Well, regulations, of course----
Mr. Cannon. As long as you accomplish your objective.
Ms. McGinty. Regulations, of course, have the full force
and effect of the law.
Mr. Cannon. Of course they do, but they should follow
Congressional intent, don't you think?
Ms. McGinty. I absolutely agree with that, yes, sir.
Mr. Cannon. But that's not what you just said. You said you
were protecting what Congress deemed not to protect or was
considering not protecting.
Ms. McGinty. No. Congress did protect it, because the
legislation was not passed. So the protections on those lands
now remain in place. The legislation was failed.
Mr. Cannon. The protections remained in place. It was a
wilderness study area. With all due respect, that's a study
area, not an internal designation. Congress has not acted to
designate wilderness.
Ms. McGinty. That's right, but Congress has acted to say
that a wilderness study area is managed for wilderness purposes
until Congress acts to change that designation.
Mr. Cannon. The sum of what you're saying is that you and
the President designated a monument because you know better
about how to designate land in Utah than the Congress does.
Ms. McGinty. Well, sir, the Antiquities Act is on the
books, has been on the books----
Mr. Cannon. And was massively abused, of course, in this
case. But was your purpose to beat Congress at our game?
Ms. McGinty. I didn't understand that you were pursuing a
game, sir.
Mr. Cannon. This is the national game done by the founding
fathers. We have that authority and you're talking about
usurping that authority from Congress.
Ms. McGinty. No, sir, there is nothing--you have the
authority to designate wilderness areas. That's right. A
national monument, of course, doesn't designate wilderness
areas one way or another. And, in fact----
Mr. Cannon. It probably does eliminate wilderness areas.
That's been my position for a long period of time. I think
ultimately what you've done to the land is probably wrong and
subjects it to injury that is unconscionable, like the
bureaucratic process that doesn't work, is done to my home land
down in southern Utah and I think that the approach--if you
read the law, you would not have done so many acres.
That is unconscionable and I think that that will be solved
elsewhere. Thank you. Mr. Chairman, I'm finished with my time,
and beyond.
Mr. Pombo [presiding]. Thank you.
Mr. Cannon. But I can't get over the fact that this is all
a matter of oral interaction here at the Presidential level for
making these kinds of decisions.
Mr. Pombo. Ms. McGinty, I did not intend on touching this
subject, but since we've heard so much about it this morning, I
just wanted to ask. In terms of the American Heritage Rivers
Initiative, how--I'll just ask you. How can you tell Mr. Cannon
that his rivers are left out just unilaterally?
Ms. McGinty. In designing the program, many Members of
Congress requested that they have that ability and we wanted to
respond positively to that and made sure that as the program
was put together, that that would be an integral feature of the
initiative. That if a Member of Congress wanted the rivers in
his or her district opted out, vetoed, if you will, that he or
she would have that right.
Mr. Pombo. I'm one of them who asked, but--and I'm not
arguing with individual members having that right. But in
looking at your testimony and what the functions of the CEQ
are, I see nowhere in here where it gives you or the Council on
Environmental Quality the authority to make decisions like
that.
Ms. McGinty. Sir, I am obliged, pursuant to the National
Environmental Policy Act, to ensure the coordination of
environmental policy and what this initiative is about is
ensuring that the agencies are working together in a way that,
on a second thing that is called for in NEPA, that local
communities begin to have a role in decisionmaking, begin to
have an effective voice in decisionmaking processes.
This initiative is about effectuating that directive and
its intent in NEPA.
Mr. Pombo. It just appears to me that the way this whole
thing is being put together is that it's not an initiative,
it's a new agency and you are the head of that agency and are
making decisions for Forest Service, for the Department of
Interior, for the Department of Agriculture, for the National
Marine Fisheries Service.
You are now the head of all of those agencies and are
making those decisions. You're not coordinating the activities
of those agencies. You are now the super-agency on all
environmental issues and you are the one who now has been put
in the position of making those decisions.
Ms. McGinty. I will assume no decisionmaking responsibility
for any statutory program which is a part of this initiative.
For exam-
ple, I think it's the Environmental Protection Agency and the
Department of Housing and Urban Development who have the
authority to decide who gets a brownfields grant. We hope to
have that integrated into this program, but I will not make
those decisions. EPA and HUD will make----
Mr. Pombo. Let's just use your example that you just gave
me of the Brownfield cite. Is there someone from EPA here that
you just coordinated with when you made the decision that none
of the rivers in Mr. Cannon's district are going to be
included? Is there anyone from EPA here?
Ms. McGinty. Every one of these agencies is involved in
this program and I think it's 13 different agencies
cooperating, have already decided that should a Member of
Congress act as Mr. Cannon has just done, to withdraw the
rivers in his or her district, that they would be withdrawn.
Those agencies have reached that decision as part of putting
this initiative together.
Mr. Pombo. And so you are the one who has been put as the
head of this new American Heritage Rivers agency.
Ms. McGinty. There is no agency that has been created here.
Mr. Pombo. Who is in charge of it?
Ms. McGinty. This is a collaborative interagency effort.
There are, as I said, 13 different agencies.
Mr. Pombo. But who is in charge of it?
Ms. McGinty. They're all working collaboratively.
Mr. Pombo. So no one is in charge?
Ms. McGinty. They are reaching decisions on a consentual
basis and we provide the----
Mr. Pombo. Who chairs the meetings?
Ms. McGinty. Sorry?
Mr. Pombo. Who chairs the meetings?
Ms. McGinty. There are many different agencies involved.
CEQ acts as a convenor of those meetings. Some of my staff are
involved in those meetings. I would say probably at every
instance, someone from my office is involved in those meetings,
but----
Mr. Pombo. Do they chair the meeting?
Ms. McGinty. They have been more collaborative than the, I
think, question would suggest.
Mr. Pombo. You and I both know if you sit down in a room
with 13 different agencies, you don't sit around a round table
and nobody chairs the meeting.
Ms. McGinty. If this is helpful, the agencies involved in
this will report to the President through me on what their
recommendations are. They have done that throughout the process
and putting the initiative together. It led to the President's
execution of an Executive Order on this, and that will
continues to be the process. But in terms of the decisions, it
is the agencies that are reaching those decisions on how the
project should be developed and implemented.
Mr. Pombo. Maybe I can ask you the question in writing and
have it answered.
Ms. McGinty. That's fine. I'd be happy to.
Mr. Pombo. In writing.
Ms. McGinty. Fine.
Mr. Pombo. It's apparent that you really don't want to
answer it, so maybe if we do it that way, you can have your
attorneys look at it and you can answer it.
But I want to thank the panel for your testimony a great
deal. I know that we kind of got off on a few other subjects
during the panel, but I appreciate your testimony and thank you
very much.
Mr. Geringer. Thank you, Mr. Chairman.
Ms. McGinty. Thank you.
Ms. Norton. Thank you.
Mr. Pombo. I would like to call up the second panel. Mr.
Randy Allen, Mr. Michael Byrne, Mr. Dan Chu, and Ms. Lynn
Scarlett. I would like to welcome the second panel up. Thank
you very much. I am sure you're all aware of how the light
system works. Mr. Allen, if you are prepared, you can begin.
STATEMENT OF RANDY ALLEN, GENERAL COUNSEL, RIVER GAS
CORPORATION, NORTHPORT, ALABAMA
Mr. Allen. Thank you for the opportunity to be here. I
represent River Gas Corporation, a small, independent natural
gas producer, with three shareholders.
We currently operate over 500 wells in Tuscaloosa, Alabama,
114 wells near Price, Utah, and some wells in Wyoming.
Over the past 3 years, we conducted a study of every
domestic coal basin. Every area showing strong potential
involves Federal land. Our future is based on the premise that
we will be allowed to extract natural gas in a prudent fashion
from Federal lands.
We are very concerned about the costs and timing of NEPA
compliance. In its current form, NEPA can either be a very
useful planning tool, encouraging prudent decisionmaking, or it
can be used to block even the most environmentally sound
proposal.
How it is used depends solely on the Federal agents who are
making key decisions throughout the EIS. This Russian Roulette
is crushing small companies and driving large ones overseas.
River Gas purchased 128,000 acres of leases in central
Utah. Seventy six thousand acres of those were on BLM land.
When we made the investment, we planned on a certain time-frame
within which we would realize a return. In April 1994, an EIS
was initiated for our proposal to develop our leases. We agreed
to pay for it.
The EIS originally was scheduled to be completed in 13
months, before June 1st of 1995, within a $200,000 budget. It
was completed in May 1997, almost 2 years late. We paid $1.3
million for the effort, $1.1 million over budget.
Some have said that our experience is the Poster Child for
NEPA reform. Whether it is or not, it's an example of how the
current system allows things to go terribly wrong and it
demonstrates how much power is wielded by field level BLM
employees without oversight.
Early in the EIS, a small group of BLM employees clearly
indicated that they were personally opposed to our project.
Over the course of the EIS, the group manipulated the system to
delay the process. It forced the contractor to back up and
repeat work and forced us to spend a lot of money.
They were hoping we would just go away, but we couldn't. We
had invested our entire future in the leases in Utah and our
wells on state and private land were prolific, indicating vast
untapped reserves under our Federal leases.
For example, in 1997, we paid the State of Utah $2.3
million in royalty. Our EIS was completed over 9 months ago,
yet we still have not received a single permit to drill on
Federal land. That was as of yesterday. We could have received
some today.
The small same group who caused the problems during the EIS
are working on our permits. This being said, most BLM employees
are good to work with. Most of the people are good, they're
honest, they have integrity, they're professional, but a small
group involved in the process can cause big problems.
NEPA also is fundamentally good. I think NEPA has done a
lot to promote prudent decisionmaking in the process. I think
the industry is better off for it. I think we would be
concerned if were talking broad-ranging sweeping changes to the
law, but in certain instances, it can get out of control.
We need strong oversight during the process. We need to
demand that agencies get control of the process early on and we
need to develop a process allowing project proponents to raise
concerns during the process.
We need to set maximum time limits on the EIS process; not
only on the entire EIS, but also on critical key points during
the process. We need followup analysis. Many EIS's are made
based on assumptions of previous EIS's on how different
activities will impact the environment. No followup is done on
these assumptions. So the same effects could be perpetuating
themselves over time. Followup analysis needs to be done.
Also, the employees inside the BLM, for the most part, are
overworked, they're understaffed, and they're struggling with a
very complex set of rules and regulations.
I would request that in the budget-making process, that
there be at least consideration given to dedicating money to
resolving some of these issues in the field and dedicating
employees for that purpose.
Thank you for the opportunity to be here today. I've wanted
to tell our story for some time. I hope it helps.
[The prepared statement of Randy Allen may be found at end
of hearing.]
Mr. Pombo. Thank you. Mr. Byrne.
STATEMENT OF MICHAEL J. BYRNE, VICE CHAIRMAN OF THE FEDERAL
LANDS COMMITTEE, NATIONAL CATTLEMEN'S BEEF ASSOCIATION,
WASHINGTON, DC
Mr. Byrne. Thank you, Mr. Chairman. I am Michael Byrne,
Vice Chairman of the National Cattlemen's Beef Association,
Federal Lands Committee, and Director of the California Public
Lands Council. My brother and I ranch in a family partnership
in northern California and southern Oregon on a fourth-
generation cattle ranch.
Thank you for the opportunity to testify today. I would
like to submit written testimony at this time.
I wish to begin by saying that I have no doubt that the
intentions behind NEPA were good. The vision encompassed in
NEPA is that all Federal agencies work together to achieve, in
quotes, ``productive harmony among our environment, economic
and social objectives, and to give a voice to the various
interests represented in the decisionmaking process.''
It is my belief that NEPA has fallen far short of these
goals in many respects. In my business, NEPA analysis is
considered a broken process because of the endless delays
caused by lawsuits and administrative appeals and the endless
new interpretation of what is needed to fulfill NEPA's
mandates.
Implementation of NEPA with respect to ranching operations
has created a lengthy regulatory maze, imposing a heavy
economic burden on the ranching industry.
In my opinion, the NEPA process has become a redundant
exercise in document production, resulting in limited, on-the-
ground implementation of resource management, which is robbing
the public of its intended benefits.
More importantly, the way NEPA is currently being
administered is subverting the whole purpose of the Act. In the
original Congressional declaration of intent for NEPA, Congress
stated that it is the policy of the Federal Government to
create and maintain conditions under which man, and I
underscore man, and nature can exist in productive harmony and
fulfill the social, economic and other requirements of present
and future generations of America.
Instead, NEPA has evolved from a national policy designed
to protect the integrity of the environment into an unbridled
regulatory apparatus which subordinates the economic needs of
the community to agency preferences for resource preservation.
This situation causes uncertainty and apprehension in the
ranching community.
The livestock industry's experience with the NEPA process
suggests it is time for Congress to clarify its original intent
to the agencies and to the courts so that NEPA can be applied
as it was supposed to be, instead of today's morass of delay
and bureaucratic red tape.
Currently, qualified range managers are tied up in the
office with paperwork and endless coordination meetings with
other agencies instead of being on the ground managing the
resource.
I am not here to argue whether the NEPA analysis should or
should not apply to specific grazing decisions or whether the
process is biased toward uses other than grazing. The fact is,
most ranchers are already good stewards of the land and are
dedicated to working within the regulatory constraints of the
Act to demonstrate their good management to the American
public.
The Forest Service has estimated the cost of managing the
forests and completing the NEPA work, as currently interpreted,
to be more than double what the current range management's
budget is. That means they want $2 for every one to comply with
what they interpret Congress requiring them to do.
Instead of doubling the agency's budget to fund a broken
process, let's fix the process. The public's right to
participate in decisions about the use of its public lands can
be accomplished without spending an obscene amount of money.
NEPA has turned into a money black hole for the land
management agencies. We are funding a process. The process has
taken control. We are more concerned about complying with a
process than we are about managing the resource or making sure
the American public's concerns are addressed.
The procedural mechanism of NEPA is in dire need of
overhaul. The following is a list of some of the positive
suggestions for change. Overlap of regulatory statutes should
be eliminated and consistent and coordination with the
application of the Act among agencies should be mandated.
Duplication of regulatory efforts involving multiple
agencies leads to unpredictability and unnecessary costs and
delays. The process should be amended to eliminate multiple
analysis of the same allotment. Under the present system, it is
not uncommon for a rancher to spend over 2 years working with
the Forest Service or the BLM toward the completion of an
environmental assessment, only to have the Fish and Wildlife
come along and change everything with a biological opinion,
effectively changing the completed EA.
Agencies should coordinate efforts and the Act should be
applied consistently. Under the present system, each Federal
agency interprets and applies NEPA differently. For example,
one agency can build a fence almost immediately, but another
agency may have to wait up to 2 years to complete what it
perceives to be the process.
Agencies should have the authority to categorically exclude
land management plans and grazing authorization from NEPA.
Agencies should also be required to work cooperatively from one
set of data, incorporating all the science necessary to meet
the requirements of the applicable regulatory statutes.
The public participation requirement extends the public
involvement invitation to anyone interested in any livestock
management action occurring on Federal lands, including small
actions such as fence-building or maintaining range
improvements.
This broad-scale public participation ties the hands of
ranchers and range managers attempting to make timely
stewardship decisions. The public involvement requirement
should be reevaluated to preclude the interested public from
interfering with the minor decisions at the local level, where
the agency land managers have been trained to make these types
of decisions.
The number of frivolous NEPA appeals is increasing, despite
the opportunity for increased public participation in the early
stage of allotment planning process. The result of more appeals
is increased delay, expense, and exhaustive record production
that have no positive effects on range management.
For example, under the current grazing regulations, any
member of the interested public may become involved in the
decisionmaking process for any action relating to the
management of livestock, including activities such as issuing,
renewing and modifying permits or leases.
In a recent letter from Director Shea to Senator Larry
Craig, on appeals, he has estimated that the cost went from
$52,000 in 1994 to over $350,000 in 1997 for just one regional
office. This is unconscionable, because these appeals have
mostly been denied because they are without merit.
The 1995 Rescissions Act required the Forest Service to
come up with a schedule for completing NEPA. The Forest Service
estimates vary, but they are only at 40 to 70 percent complete
of what they estimated, and, as has been testified to earlier
today, the cost has been enormous, with the production being
very slow.
The bottom line is NEPA is a procedural law designed to
ensure that actions of the Federal agencies are balanced
between the needs of man and the environment by allowing
everyone to voice their concerns in the decisionmaking process.
Currently, we are caught up in the process that we are
forgetting about the bigger picture, which is the public lands
are being held in trust by the government for the benefit of
all Americans.
Right now, the American public and the resources are not
being well served by the NEPA process.
This concludes my testimony and thank you very much. I will
be happy to answer any questions.
[The prepared statement of Michael J. Byrne may be found at
end of hearing.]
Mr. Pombo. Thank you. Mr. Chu.
STATEMENT OF DAN CHU, EXECUTIVE DIRECTOR, WYOMING WILDLIFE
FEDERATION, CHEYENNE, WYOMING
Mr. Chu. Good afternoon, Mr. Chairman and members of the
House Resource Committee. My name is Dan Chu and I am the
Executive Director for the Wyoming Wildlife Federation.
We are a non-profit conservation organization, composed of
over 3500 members, who are united by deep commitment to the
protection to wildlife habitat, the perpetuation of quality
hunting and fishing, and the protection of their right to use
and enjoy public lands.
Today I would like to provide our perspective on the
function and effectiveness of the National Environmental Policy
Act.
NEPA was established in 1970 to establish the Council of
Environmental Quality and to guide Federal agencies in their
efforts to manage for sustainable development and to allow the
public to be involved in the management of their lands and
resources.
Our members directly benefit from NEPA because it provides
a forum for local people and local interests to be considered
in Federal actions on public land.
We educate and mobilize citizens to be involved in these
decisions that affect the public land throughout Wyoming. We
view NEPA as providing Federal agencies a formal process for
responding to the public and determining if an action is truly
in the public's interest.
We believe that the purpose of NEPA is to establish the
policy that all Federal agencies must, No. 1, be responsible to
future generations; No. 2, provide environmental equity for all
Americans; No. 3, allow for the beneficial use of the
environment without undue degradation; four, encourage
historical, cultural and biological diversity, as well as
individual liberty; five, promote widespread prosperity for all
Americans; six, manage for the conservation and prudent use of
our natural resources; and, seven, consider and incorporate
public comments and interests.
NEPA does not have decisionmaking authority. Rather, its
function is to provide a framework for disclosure and sound
planning.
NEPA requires that Federal agencies provide the public with
full and adequate disclosure of impacts and effects of
development. Such effects include ecological, aesthetic,
historic, cultural, economic or health.
To determine the true impacts of development, an adequate
cumulative impact analysis must be conducted. Ultimately, a
good cumulative impacts analysis can ensure the orderly
development of our public natural resources under a multiple
use mandate.
Although we believe that NEPA is an example of great
foresight and responsibility from Congress in 1970, we also
feel that the implementation of this Act can be improved and
streamlined. In fact, the topic of improving and streamlining
the implementation of NEPA was a major topic of discussion for
the Green River Basin Advisory Committee, on which I served as
a member in 1996.
In response to a growing number of concerns and appeals
surrounding the cumulative impacts on proposed oil and gas
development on Federal public lands in Wyoming and Colorado,
both oil and gas companies and environmental organizations
asked the Secretary of the Interior to initiate a formal
process to help resolve conflicts.
Secretary Babbitt formed the Green River Basin Advisory
Committee, which I will refer to as GRBAC, in February 1996.
The GRBAC was given a one-year charter; to ensure the
reasonable development of natural gas and oil, while protecting
environmental and other resource values on public land in
southwest Wyoming and northwest Colorado.
Secretary Babbitt, in cooperation with the states, selected
16 members from the oil and gas industry, conservation groups,
state game and fish agencies, local and state government, and
any recommendations forwarded to the Secretary from the GRBAC
received the wholehearted support of every single member on
that committee.
One of the issues we agreed to discuss was the use of NEPA.
After much discussion, we reached consensus on some
recommendations we felt could improve the implementation of
NEPA and the process of oil and gas development on public
lands.
I would like to briefly point out some of the
recommendations. For more detail, I refer you to the GRBAC's
final report to the Secretary of the Interior.
One of the most common issues of concern we discussed was
the lack of interagency coordination in the NEPA process. We
recommended, quote, ``improving coordination and communication
among project proponents, affected agencies, and stakeholders,
to reduce adverse comments and time required.''
Specifically, we all saw a need for Federal agencies to
improve interagency coordination prior to and during the NEPA
process. We all felt that there have been too many instances
where one particular development project had resulted in two or
more NEPA documents initiated by different Federal agencies.
Such a lack of coordination resulted in unnecessary delays
and inadequate cumulative impact analysis.
One complaint we heard from industry is that the NEPA
process results in significant delays. Many of these delays
result from a lack of accurate field data, detailing the status
of existing wildlife and plant communities. We also recognize
that industry and environmentalists alike are frustrated with
the incompatibility of various Federal agency data bases, often
precluding the share of key biological data.
Another GRBAC recommendation addressed how to improve the
format and content of the NEPA document, while reducing its
size. ``Eliminate duplication in data requirements, as well
consolidating and accessing existing data bases.''
To this end, we recommend that Congress provide additional
funding to Federal agencies for the purpose of consolidating
various data bases to provide accurate and comprehensive
biological data.
Another recommendation was ``impact analysis should be
based on scientific and realistic impact assessments, not
speculation.'' This recommendation states that a common need of
industry, environmentalists, and management agencies is that of
having reliable and complete databases. Whereas industry
strongly believes that it is not their responsibility to
collect baseline data, Federal agencies have a legal and moral
responsibility to the public to conduct a cumulative effects
analysis and minimize impacts of the proposed development on
other users.
We believe the fundamental problem once again resides with
inadequate funding of data collection. For this reason, we
support the Teaming with Wildlife Initiative and believe that
it could bring sorely needed funds to state game and fish
agencies to conduct those baseline data studies.
In conclusion, we applaud the great foresight and wisdom of
Congress when they established the National Environmental
Policy Act in 1970. Consolidating Federal agency data bases,
improving interagency coordination, investing and filling
crucial biological and cultural data gaps, and facilitating
early communication between all resource users can enhance the
implementation of NEPA.
Thank you for this opportunity to comment.
[The prepared statement of Dan Chu may be found at end of
hearing.]
Mr. Pombo. Thank you. Ms. Scarlett.
STATEMENT OF LYNN SCARLETT, REASON PUBLIC POLICY INSTITUTE, LOS
ANGELES, CALIFORNIA
Ms. Scarlett. Yes. I'd like to thank the Chair for
convening the hearing and thank Mr. Pombo for his patience and
perseverance and the committee members for their attention.
As Executive Director of the Reason Public Policy
Institute, a Los Angeles-based think tank, I am not here as a
practitioner involved in the NEPA process, but rather as an
analyst who has reviewed NEPA and other environmental statutes
and practice.
Let me offer a few brief comments, first, on NEPA goals and
practice and then perhaps on some propositions for change. NEPA
is unique, in my mind, among environmental statutes in several
ways.
First, as several folks have pointed out, it explicitly
sets forth a goal of balancing environmental, economic and
social values, not a dominance of one over the other.
Second, it offers an opportunity for a big picture focus on
environmental impacts rather than a single impact focus. Third,
it is not prescriptive, but rather procedural and somewhat
general.
As with others, I think that NEPA was laudable in its
intent, but it has not always fulfilled its promise.
Specifically, sometimes we've had unintended consequences and,
as we have heard much today, many procedural inefficiencies and
some ineffectiveness, and I want to mention three in
particular, which repeat some of what other folks have said.
First, sometimes balance is absent. NEPA has been used
rather as a tool to delay and stop rather than to improve
projects in some instances, and this has been more evident in
some areas, particularly forestry, highways and mining, than in
others.
On the other hand, some agencies only reluctantly comply
and don't integrate NEPA into their plans, the result being
that there is a failure to consider alternatives and a failure
to make perhaps needed environmental improvements in some
cases.
Moreover, there is also little meaningful state, local and
citizen participation, as we've sometimes heard.
The third problem, again, to repeat, is that it has been
time-consuming and costly, sometimes with no clear consequence
resulting. Costs range from a few thousand dollars to, in one
instance that I tracked, as much as $40 million for one EIS.
Sometimes the process takes up to 6 years or more. Indeed,
sometimes even closer to a decade. The cost on occasion is over
10 percent of total project costs, although usually it is much
smaller than that.
Documents are long and inaccessible. One study that I
looked at showed that the language in these documents is geared
to the typical college graduate or a person with a graduate
degree, rather than the general public.
CEQ is aware of many of these problems, as are agencies,
and they have attempted to reduce cost inefficiencies and
improve public participation through some of the reinvention
efforts that we have heard. Some of these efforts, I want to
point out, have actually been successful. The DOE, Department
of Energy, set up specific goals for reducing its median time
for EIS's and for environmental assessments.
It tracks those costs and, more importantly, actually
discloses those to the public. The consequence is that the DOE
has managed to reduce its average time for EIS's from about 3
years down to less than 20 months.
CEQ, as noted earlier, has also embarked on various
reinventions, including the use of alternative dispute
resolution, as Ms. McGinty suggested.
Some of these reinvention efforts have been laudable and
folks point to them as a reason for not making any changes. I
would suggest that that conclusion is perhaps overly optimistic
and there may be a role for Congress to rethink some of NEPA.
While some agency reinventions have been successful, others
are less so. For example, the Federal Highway Administration,
despite streamlining, still has EIS processes that take many,
many years. There is a lack of up front state and local
participation, as we have heard repeatedly; a lack of
interagency coordination and cooperation, despite reinvention
efforts.
The Forest Service often engages in costly over-evaluation
in order to avoid litigation for fear that perhaps it hasn't
covered all its bases.
I want to put forth several options to consider, but first
restate five problems and summarize them.
One, there are no clear requirements in the statute for up
front state, local and citizen participation or for the states
to play a role as joint lead agency. Two, there is no mechanism
to ensure coordination among agencies. Three, there are no
clear requirements to report costs, length of time to complete
EAs and environmental impact statements. Four, there exist
substantial continued disputes over the scope of evaluations;
and, five, inadequate attention to substance.
I see my time is out, but I will just summarize very
briefly several recommendations.
One, I think with Ms. Norton, Congress may wish to consider
establishing clear conditions and requirements for coordination
of agencies and involvement of states and local governments.
Second, again, with Ms. Norton, I agree that Congress may
wish to establish conditions that would trigger mediation and
conflict resolution. That now occurs, but only in a serendipity
and not reliable fashion.
Third, Congress may wish to consider clear requirements for
NEPA costs, timing and results disclosure. That is very uneven
among agencies at this point and what gets reported gets done.
When you have those specific time lines that you report, it has
a tendency to create incentives inside the agency to get things
done.
Next, Congress may wish to clarify and set bounds on the
concept of significance and, finally, Congress may wish to
establish basic consistency requirements, because the
reinvention efforts we've seen to date have been uneven.
In conclusion, fixing NEPA will not fix many of the
problems with how agencies currently try to balance their
multiple missions, including environmental protections, that
they face, because some of the problems are embodied in other
statutes.
Nonetheless, there is room for NEPA improvement in a way
that will enhance environmental results, public participation,
and reduce costs.
Thank you.
[The prepared statement of Lynn Scarlett may be found at
end of hearing.]
Mr. Pombo. Thank you. Ms. Scarlett, you stated in your
testimony that you didn't believe that the reinventions have
solved all of NEPA's problems and you've come up with a number
of suggestions for changes to the process.
One of the things that we've spent a great deal of time on,
and it kind of concerns me a little bit, is we talk a lot about
the process of NEPA and how we get through the process, but I
don't believe that there's a lot of effort being put forth to
does this really do anything for the environment.
I mean, we spend a lot of time on the bureaucracy of it and
whether or not the bureaucracy is working, but is it doing
anything for the environment by having this process in place.
Do you have an opinion on that?
Ms. Scarlett. I think you've pointed to an oft reported
problem with NEPA. It is a very much process-focused statute.
One of the things that I suggest might be useful to do is in
addition to reporting the costs and the time-frame, I also
suggest that it might be useful to actually require the
reporting of results.
That is not now done on a systematic basis and, again, that
is a process, that is requiring reporting of results, but it
has a way of changing the internal incentives that agencies
face, making them more conscious that what this is all about,
after all, is not simply producing a pile of paper, but
actually achieving some end result that in some way improves
the particular project that they were focused upon by
incorporating environmental considerations, social and
economic.
Mr. Pombo. Most of the complaints that I have received,
that my office has received over the NEPA process have not been
centered around whether or not they were doing any
environmental good. Most of the complaints that I have received
have been over just the very process of doing it.
I know I've had the opportunity to speak to Mr. Byrne on
several occasions before and I know that you've gone through--
what is it--a 7-year process with NEPA?
Mr. Byrne. Yes.
Mr. Pombo. What grand development were you undertaking that
required a 7-year process? Was it a major development that you
were projecting?
Mr. Byrne. We were trying to maintain a continuing, ongoing
activity which had over a 100-year history, with substantially
no changes.
Mr. Pombo. What was that activity?
Mr. Byrne. Grazing cattle on public land.
Mr. Pombo. So you were trying to get a permit to graze
cattle on public land, a process that had been occurring for
100 years, and this has taken 7 years to get a permit.
Mr. Byrne. We're trying to get our permit renewed because
the courts came out and redefined permit renewal as the major
Federal action, not really the grazing. We were not trying to
do any large activity or project at all, except for what had
been occurring there for 100 years. Except the paperwork part
needed to be done again.
Mr. Pombo. So you've gone through 7 years, a 7-year process
to have your grazing permit renewed.
Mr. Byrne. Correct. Plus, everything and anything out there
was analyzed in the process. We are unfortunate. We used to
believe we were fortunate to have live water and that allows us
to have habitat and potential habitat for threatened and
endangered fish and plants, et cetera. We also have wild
horses, for which we had plans and developed things, but this
analysis put them all together in one document.
Mr. Pombo. In your experience with this, has it changed
your compliance with environmental laws? Were you not obeying
any environmental laws before you began this 7-year process?
Mr. Byrne. I don't believe that we are any more in
compliance with environmental laws as they were interpreted
then and are interpreted now. What we are doing mostly is
preventative type things, such as keeping the cows out of the
riparian area so that they will not have an adverse effect,
because the penalties are so severe that if it did happen to
take a fish by some act, that it would preclude you ever doing
it.
Mr. Pombo. You state in your prepared testimony that we are
funding a process, the process has taken control. Is it your
opinion that if there was a--for lack of a better term--a
different process that we went through, that this could have
been done on a much shorter basis and at a lot cheaper cost?
Mr. Byrne. Yes. I submit that when you're analyzing an
activity such as grazing that's gone on in the same area at the
same or less intensity than it has in the past, that it is a
gross misappropriation of human and financial assets to
undertake this type of analysis.
If there was a substantial change, such as a big earth
moving event or a large Department of Defense installation or
something like that, I would concur that you need to do a big
analysis, but to spend this amount of time and money on an
activity that has a 100-year history, to me, is fairly
ludicrous.
Mr. Pombo. Mr. Allen, it's my understanding, from reading
your testimony, you were attempting to develop a number of gas
and oil wells.
Mr. Allen. Only natural gas. We're a methane company.
Mr. Pombo. Natural gas wells.
Mr. Allen. Yes.
Mr. Pombo. Did this project that you proposed involve a
very large area?
Mr. Allen. The overall area of the EIS study area was about
300 square miles. We had 128,000 acres under lease. That was
about two-thirds of the 300 square mile area. We had not leased
the entire 300-square-mile block, but we originally proposed
drilling 1,000 wells within that area. Our final proposed
action was 601 wells inside that area.
The wells would be spaced on 160-acre spacing, so that
would be four wells for government section, four wells a square
mile. Each well pad would require about one acre. So we would
have four acres of well pad disturbance for each 640 acres of
land.
Mr. Pombo. And there was an estimated 600?
Mr. Allen. 601 wells were our final proposal, yes. We have
drilled 114 wells to date that are currently producing. We have
not drilled a single well on Federal land. We are producing
from land owned by the State of Utah and by private
individuals.
Mr. Pombo. So your entire development would have covered
approximately 2,400 acres out of 128,000?
Mr. Allen. I'd have to double-check the math.
Mr. Pombo. It's 600 times----
Mr. Allen. Each----
Mr. Pombo. No. Actually, it's less than that. Six hundred
wells and they're an acre a well, so it's 600.
Mr. Allen. Plus some acreage to put in roads to the wells.
So a little bit more than that, yes.
Mr. Pombo. How many years have you gone through this
process?
Mr. Allen. We were notified by BLM in February 1994 that we
needed to get through the EIS process before they could allow
us to develop any wells. So we initiated it shortly thereafter.
Our first meeting was in April 1994. The ROD was signed in May
1997, about 9 months ago, and we have not received a permit yet
to drill a well.
Mr. Pombo. So it's been approximately 4 years.
Mr. Allen. Yes. A few weeks short of that, yes.
Mr. Pombo. Ms. Scarlett, in your understanding of NEPA,
with Mr. Byrne's case, do you think that the original authors
of the legislation intended on this being a major 7-year event
when someone went to renew a grazing permit?
Ms. Scarlett. It's hard to get into the minds of people in
the past, but my own sense is that NEPA is increasingly being
applied to very trivial instances. There is another similar
example where when the Forest Service had gone through an EIS
process with one contractor, that contractor pulled out and was
replaced. There was no change in the project whatsoever, but
they were then requiring that new contractor to again go
through the EIS process all over.
I don't think that was what was intended in the original
legislation. And that's one reason, by the way, that I would
recommend Congress considering perhaps better defining what
significant is.
Mr. Pombo. So that would be one of the recommended changes,
for Congress to be a little bit more specific about when it
intends this Act to kick in.
Ms. Scarlett. That's correct.
Mr. Pombo. Mr. Chu, just briefly, what everybody states and
everybody that testifies before the Committee, without
exception, always says that they are interested in protecting
the environment, whether it's the Cattlemen that's sitting next
to you or whoever it is. They all come in and say that they
have no ill will toward the environment, they want to abide by
all the laws, they want to protect our fish and wildlife, our
clean air and clean water.
Do you believe that that's possible for us to do that
without going through a 7-year process to renew a grazing
permit?
Mr. Chu. I think so. And I don't know the particulars of
why it took 7 years, but I don't know----
Mr. Pombo. They're in Mr. Byrne's testimony. You can read
that after the hearing.
Mr. Chu. Yes, I think I will. But if part of that 7-year
process was involved in collecting data or bringing together
various laws or statutes, I don't know, but I guess the bottom
line for us is that that those are public lands, that there are
other public resource users out there.
We understand that his livelihood depends on that
allotment. But we just want to be ensured that those lands are
going to be adequately managed by the permitee.
I would suggest that if he had a very good record of
management and had a good record of riparian protections and
that sort of thing, then that 7 years could have been
excessive.
Mr. Pombo. Do you understand that the more people like Mr.
Byrne that come in with testimony like he has or Mr. Allen with
testimony like he has, that the more people that do that, the
more pressure there is on Congress to change these laws? And
that with your goal and with the goal of the other panel
members to protect the environment, that the pressure,
political pressure begins to build and a lot of these laws will
lose some of their luster by doing that?
Mr. Chu. Yes. That's certainly one consequence. One of the
things that we've tried to do help along the NEPA process is
we've been working on various land exchange proposals, where
BLM land and private land would be exchanged, and we have sat
down with the land owner, the proponent, and other interest
groups prior to scoping and tried to hammer out a land exchange
proposal that we can all live with before we take that to the
BLM, and we believe that that will greatly expedite the process
through NEPA because what's going to happen is you're going to
have a lot less controversy, a lot less public acrimony over
that particular land exchange, because we've hopefully dealt
with most of the time bombs before we've even brought it in
front of the BLM.
That is one suggestion I would have. One of the programs
that we have in our state is what's called coordinated resource
management and it's a voluntary consensus effort, where the
land owner or the permitee gets together with other interest
groups and talks about wildlife and livestock management on
that particular allotment, and try and come to consensus.
And so we strongly support that kind of process, as well.
Mr. Pombo. So you don't suggest that that process takes 7
years.
I want to thank the panel for your testimony. We have a
vote on the floor, so I am going to temporarily recess the
Committee. This panel will be excused and when I return, the
final panel will have their chance to testify.
[Recess.]
Mr. Pombo. We're going to call the hearing back to order. I
would like to welcome the third panel back. First off, I would
like to apologize to you for the delay. Unfortunately, we don't
control the floor schedule, so we have to kind of do this the
best we can. But I appreciate you sticking with us.
Mr. Leftwich, if you are prepared, you may begin.
STATEMENT OF TIM J. LEFTWICH, SENIOR ENVIRONMENTAL SCIENTIST,
PRINCIPAL, GL ENVIRONMENTAL, INC., RIO RANCHO, NEW MEXICO
Mr. Leftwich. Thank you, Mr. Chairman. I appreciate the
opportunity to present testimony and appreciate your endurance
here today and hanging with us.
I am speaking on behalf of the National Mining Association.
It's the voice and single representative of one of America's
great basic industries.
It's hard for me to say something that hasn't been already
alluded to today, but I will attempt to make a couple of points
about NEPA and the involvement of various agencies and the
interaction of those agencies with NEPA.
First of all, I'd call your attention to the display, to my
left and to your right. This is a flow chart or a gant chart
showing task and time lines associated with getting through an
EIS process. We did this in the throes of four EIS's that were
ongoing simultaneously in an attempt to get control of the
process and understand the process.
We've heard a lot of talk today about issues associated
with the process and I guess I'm going to talk in a little more
detail about that.
First of all, as to time constraints and to time limits,
this particular document details about a 36- to 48-month time-
frame for an EIS. Some have gone sooner than that, others about
4 years.
Another issue that's been alluded to during the testimony
today is the costs. Again, as most of us know, the longer the
time, the more the costs. In these particular examples, the
costs have ranged from one-and-a-half to six million dollars to
complete an environmental impact statement for mining
activities in the State of Nevada.
There is a study that was recently conducted by Dave Delcor
that I would like to introduce for the record on the mining
industry issues associated with NEPA, and I think that's
illustrative of some of the points that I'm going to try to
make today.
Mr. Pombo. Without objection.
Mr. Leftwich. One key issue that is not so much
administrative or regulatory-driven is the role of EPA in NEPA,
and that would take some statutory tinkering to fix. That
problem that we have encountered is that EPA has a mandate to
review and comment on every EIS that's prepared and that
oversight tends to act as an 800-pound gorilla in the closet
that the other agencies try to overkill in terms of baseline
data collection and the process that's detailed to the left.
I'm not sure what the solution to that is. One suggestion
is to have EPA involved early in the process instead of coming
in at the eleventh hour; so that during scoping, if they are a
party at the table, since ultimately someone from that agency
has to give final approval of the document.
Another issue that we found particularly troublesome is
lead agency and who is the lead agency as opposed to
cooperating and coordinating that activity. It seems that there
is a reluctance on the part of the lead agency to take
responsibility for the process. We submit that it's important
to agree on a schedule, it's important to agree on what the
process really includes, and whether all of the issues that may
come before the lead agency really need to be addressed.
We think that can be done in scoping and also agree on at
least taking a stab at a budget, because we find both schedules
and budgets seem to be open-ended with the lead agencies.
Another question that has, I think, caused confusion is
when NEPA is actually triggered. There is an attempt to get
agency involvement early on in the process so that NEPA can be
formally triggered and at least start going through the
process, as we know it. There is reluctance, however, on the
part of many applicants or proponents to trigger NEPA until all
the baseline work and all of the data has been collected, and
then that gets into a circular pattern of problems with timing.
If someone could flip the other chart over. In going
through this, we have identified four or five specific areas
that the NEPA process gets bogged down, and that's detailed in
yellow. Obviously, you can't read those from that distance, but
I think that the point of this is that a systematic approach to
looking at the implementation of NEPA identifies where problems
occur, where bottlenecks occur, and where the process just
starts going in a loop, and resulting in long time-frames and
additional costs.
We think it's important for lead agencies to understand
their role, to take the responsibility for guiding the process,
to adhere to a schedule and also a budget. Hopefully, both of
those are negotiated at the beginning of the process.
Public participation certainly is a key part of NEPA and we
feel like should be coordinated by the lead agency in the very
beginning to identify issues as opposed to issues being
interjected into the process in the eleventh hour. The ultimate
result of that is delay and additional costs for things that
potentially could have been identified in the very beginning of
the process.
That concludes my testimony. I have a more lengthy written
testimony that you have and also a smaller version of what we
lovingly refer to as the Dead Sea scrolls there, to try to
identify what we think the process entails.
[The prepared statement of Tim J. Leftwich may be found at
end of hearing.]
Mr. Pombo. Thank you. Mr. Loesel.
STATEMENT OF JIM LOESEL, ROANOKE, VIRGINIA
Mr. Loesel. Thank you, Mr. Chairman. My name is Jim Loesel.
I'm the Secretary of the Citizens Task Force on National Forest
Management. We are a conservation group in western Virginia
that has interacted with the Jefferson and the George
Washington National Forests for more than 15 years. We comment
extensively on projects that are proposed in both of those
national forests.
Before I was the Secretary of the Citizens Task Force on
National Forest Management, I commented on Forest Service
projects for a number of other local groups. I'm one of those
people who has been in the trenches interacting with an agency
through NEPA.
At one time, I was a Professor of Political Science at
Washington and Lee University. I still enjoy talking with
students. I talk to students at an international school every
year. They are amazed that Americans have a law like NEPA that
allows citizens to interact with government agencies. We are
not only allowed to give them our opinion but that opinion is
quite often taken very seriously and it helps shape the
eventual decision.
Students from Latin America, Asia, and Africa tell me ``If
we tried something like that, we would be put in jail. There
are colleagues of ours that have been put in jail for doing
exactly what it is that you do and have an effect on the
outcome of how your government operates.''
It's given me pause to think from time to time how
effective NEPA is as a manifestation of democracy. It's
important. When we take a look at the big picture, we see all
kinds of things that NEPA does. I've tried to outline some of
these in my testimony. In America, NEPA brings the public into
contact with the agencies, whereas agencies in other parts of
the world don't want to have contacts with their citizens to
talk about resource management. We provide information to the
agency and we are able to bring up issues which the agency
would otherwise have missed. There is a function in broadening
the issues put before the agency. We help improve the quality
of the environmental analysis through our participation. The
bottom line is that the quality of the decisions are improved
through our participation.
I have people from the Forest Service that tell me
repeatedly ``You and people like you make a difference. Thank
you. We don't say that very often because quite often you make
life for us uncomfortable or you force us to do things that we
wouldn't have done otherwise. But off the record, let's say
thank you for what it is that you and people like you do,
because, in the long run, it makes a significant difference.''
There is, of course, always room for improvement in the
implementation of NEPA. I have made several suggestions for
improvements in my written testimony. For example, I think
there is a tendency for the Forest Service to use NEPA to look
at more and more discreet, small projects as a result the
projects tend to be fragmented, rather than a ``big-picture''
look for an area. It has become almost impossible to do larger
area analysis through NEPA.
On the Jefferson National Forest, we had Opportunity Area
Analysis, which tended to integrate projects over a landscape
or watershed area, over a 5-10 year period of time. There was
great enthusiasm for this kind of process on the part of agency
people, as well as members of the public, because it helped us
focus on an area and all of the projects to be implemented over
a longer period of time in that area.
If you have a hundred projects spread all over the forest,
you can't focus. You don't see the interrelationship among
projects. So I would like to see changes that would allow an
appropriate NEPA analysis at an intermediate level. It worked
in the past and should work again in the future.
Thank you. I will be glad to answer any questions.
[The prepared statement of Jim Loesel may be found at end
of hearing.]
Mr. Pombo. Thank you. Mr. Caldwell.
STATEMENT OF LYNTON K. CALDWELL, PROFESSOR OF PUBLIC AND
ENVIRONMENTAL AFFAIRS, INDIANA UNIVERSITY, BLOOMINGTON, INDIANA
Mr. Caldwell. Mr. Chairman, before offering my testimony,
may I briefly state my qualifications for addressing this
topic. Since 1962, author of numerous books and articles on the
subject, and in 1968-69, consultant to the Senate Committee on
Interior and Insular Affairs on legislation sponsored by
Committee Chairman Henry M. Jackson.
I was principal author of a 1968 Senate report on a
national policy for the environment and introduced the concept
of an environmental impact statement to make environmental
policy operational. This was not an impromptu addition to
Senate Bill 1075. It had been under consideration for at least
a year before its formal introduction.
We sought the most effective way to make the declaration in
NEPA operational.
May I offer three points for consideration by the
Committee. One, as its name indicates, NEPA is a declaration of
policy. Two, its procedures are intended to achieve its policy
objectives. NEPA is not essentially a procedural statute.
Three, complaints against NEPA are more properly directed
toward misconstrued and insufficient support in the Congress,
the White House and the courts, than to the Act itself.
Beginning now with point one. NEPA declares a broad
national policy for the environment. Specific goals and
principles enumerated in Section 101 are intended to reflect
basic and enduring values of Americans.
NEPA has been emulated in nearly half of our states and by
more than 80 nations abroad.
Point two. Contrary to judicial misconstruction, the
application of NEPA is not limited to pro forma procedures. The
Congressional Record and public statements by Congressman
Dingell and Senator Jackson clearly indicate that procedural
requirements under Section 102 were intended to force agency
compliance with the principles and priorities declared as
national policy.
In addition, the Act sought to correct abuses of
administrative action by requiring disclosure of agency plans
and projects to all Federal agencies whose missions would be
affected and to state and local governments and the general
public that would bear the consequences of agency action.
Procedures mandated under Section 102, notably impact
assessment, apply directly only to Federal agencies and are not
comparable to the regulations administered by EPA.
Point three. Criticism of NEPA is more properly directed
toward lack of commitment in the Congress, the White House, and
some agencies, and the courts, than to the Act itself or to its
oversight by the Council on Environmental Quality. The CEQ has
been consistently under-funded and understaffed, unable to
perform important functions which the Act requires.
In summary, complaints that the so-called NEPA process runs
up costs and delays important projects are not fairly
attributable to the Act itself. Misuses of the impact statement
procedure have occurred, sometimes because of agency
misallocation of planning costs; that is to say, pushing actual
costs of a project on the impact statement requirement.
For projects that conflict with Congressional intent,
declared in NEPA, delays and costs required to ascertain a full
accounting of unintended consequences may be justifiable.
Congress has the power to reaffirm and reinforce this important
national commitment. The culmination of 10 years of inquiry and
deliberations by successive Congresses, environment may not be
the salient issue of the moment, but our most reliable opinion
analysts find it to be a core and latent concern of the
American people.
The Congress would be ill advised to act on the assumption
that the public is indifferent to the values and principles
that NEPA represents.
Thank you.
[The prepared statement of Lynton K. Caldwell may be found
at end of hearing.]
Mr. Pombo. Thank you. Mr. Hutchinson.
STATEMENT OF HOWARD HUTCHINSON, EXECUTIVE DIRECTOR, COALITION
OF ARIZONA/NEW MEXICO COUNTIES FOR STABLE ECONOMIC GROWTH,
GLENWOOD, NEW MEXICO
Mr. Hutchinson. Thank you, Mr. Chairman. I represent the
Coalition of Arizona/New Mexico Counties and I've had a rather
remarkable journey arriving to that position as Executive
Director, having been through the radical environmental
movement and actually having been associated with Earth First
in the early nascence of that organization.
And I have found myself now at a crossroads, looking at the
process that we decide environmental issues on, and that is the
National Environmental Policy Act.
The role of tribal, state and local governments was
established under the NEPA and in the late 1980's, the state
and local governments, particularly county governments, began
to feel the physical impacts of reductions of revenue from
economic activities on the Federal lands.
This prompted research into the Federal statutes and
regulations, which disclosed the requirements for inclusion of
non-Federal governments in the environmental planning process.
But up until that point, we had not really informed ourselves
nor been informed of the ability for us to participate.
Years of no active participation, followed by this keen
interest, caught Federal agencies by surprise. If the past
history of regulatory direction is an indication, the role of
non-Federal governments will be defined over a period of years
through judicial interpretation.
And I think that's one of the reasons that I'm here today,
is to have Congress take a look at possible remedies rather
than years of court battles.
One of the major areas of contention at this point, and it
was alluded to earlier, was the recognition or being requested
by the land management agencies or Federal agencies to be joint
lead or cooperating agencies in actions affecting the
environment within non-Federal government entities'
jurisdiction.
A number of conflicts have arisen out of this and I think
it was properly portrayed earlier that those conflicts have not
been resolved in favor of local governments or state
governments or tribal governments and a number of pieces or a
number of legal cases have been initiated as a result of
denials of cooperating status.
The administrative appeal process, which is part of that
granting of cooperating or joint lead agency status, usually
results in upholding the decision not to grant joint lead or
cooperating agency status. This is usually long after the
agency decision is implemented. At this point, the only option
left to the counties is Federal court.
During this delay, the adverse impacts to the local
environment continue and I should stress at this point that
it's the local environment, and it's not just the economic,
social and cultural impacts, are having tremendous physical and
biological adverse impacts.
Federal agencies cannot nor should they bear all the
responsibility for the lack of non-Federal government
participation, because the law was there. The county, local
governments, state governments, tribal governments could have
participated. However, Fed-
eral agencies had an obligation to notify them of the ability
to participate.
One of the things that was alluded to in earlier testimony
was a discussion about significance, significance of the action
itself and significance of issues that are raised to be looked
at in the NEPA process, and, again, this is an area of
conflict.
What we have seen is agencies and local governments
disagreeing over the significance of impacts. And just a quick
example, in Reserve, New Mexico, which comprises about 400
people, it's the county seat, 35 people were laid off from the
sawmill when it was shut down over a Federal decision. Those 35
people don't sound like very much, but it was 20 percent of the
work force in that area. And had that occurred in a major
metropolitan area, Congress would have heard a scream that you
wouldn't have been able to ignore.
But those 35 jobs were very important and, therefore,
significant to that local economy and the significance was
ignored because the statewide analysis was done, and it was a
brief one at that, on the economic impact.
Federal agencies are in gridlock. No responsible official
can make a decision that follows all of the procedural
requirements contained in all the statutes and all the
regulations all of the time. Clearly, Congress has an
obligation to bring resolution to this and get uniformity into
the decisionmaking process, because it goes across lines of the
National Forest Management Act, Federal Land Management and
Policy Act, the Endangered Species Act, the Clean Water Act,
the Clean Air Act, and on and on and on. All of these have NEPA
implications and they all have stops in them, and those stops
are killing us.
Thank you, Mr. Chairman.
[The prepared statement of Howard Hutchinson may be found
at end of hearing.]
Mr. Pombo. Thank you for your testimony. One of the things
that you said in your testimony, Mr. Hutchinson, was that you
believed that the local environment suffered in this delay game
that we go through in the NEPA process. Can you give me an
example of that?
Mr. Hutchinson. Yes, Mr. Chairman. Apparently--and I'll
just give you a local example, an on-the-ground example from my
area. The Gila National Forest is a watershed for our local
area. We have had a significance decline in the quality and
quantity of water coming off of those national forest lands.
We identified that as a significance impact. Yet, the
Forest Service refuses to even analyze that and in the last
forest plan amendments that were run through the NEPA process,
they didn't even--they barely looked at it. There was a
paragraph that was maybe an inch and a half high on a Federal
Register page devoted to any of the hydrologic cycle impacts.
So these types of things are going on all the time. And
then also the significance of impact to the local economies, to
our schools, our road maintenance. All of those things are
cavalierly cast aside as not having significance and,
therefore, do not receive analysis.
Mr. Pombo. Let me ask you this. If counties and states were
brought in as a partner in this process, do you believe that
environ-
mental issues and local social and economic concerns would be a
part of the final document?
Mr. Hutchinson. Absolutely. What started out and was called
the county movement started in the county that I'm from, in
Catron County, New Mexico. I played a part in drafting a lot of
our land use plan and looking at the laws.
I am very proud to say at this point that at least it has
reached this level of recognition in Congress, but also at the
state level with the BLM in the development of standards and
guidelines for range land management in the state.
The state has been granted joint lead agency status.
Several counties who have significant BLM lands have been
granted cooperating agency status. And those entities have
members on the interdisciplinary teams actually drafting the
NEPA document and it is making a significant difference in the
outcome of the environmental impact statement.
Mr. Pombo. Mr. Loesel, would you support--and I don't know
if you've seen Senator Thomas' bill, but would you support an
idea of requiring that the states and counties be equal
partners in developing the document?
Mr. Loesel. I have not seen the bill.
Mr. Pombo. But just in general, and I won't ask you about
that specific piece of legislation because I would not expect
you to have read it.
Mr. Loesel. I'd have to think about that. I can tell you
that when we were doing Opportunity Area Analysis on the
Jefferson National Forest, it allowed for active state
involvement. A number of agencies found it worth their time to
focus on the decisions that were being made as part of the
Opportunity Area Analysis.
I've seen a substantial decline in the state's
participation as all these small decisions become very diffuse.
Game and Inland Fisheries can't keep up with that volume of
work to comment.
I can think of two or three other agencies that are no
longer at the table. I'm not certain that it's a question of a
legal requirement. I think it's making it attractive for them
to participate, to feel their input is meaningful, and to
understand where their input would have some effect.
Mr. Pombo. If they were included and it was a requirement
that they be included from the very beginning, their impact
would be part of the final work product. It would be required
that they be an equal partner in developing an EIS or an
environmental assessment. It would be a requirement that they
be involved with it, instead of someone from a Federal agency
coming into your state or your county and saying this is what
we've decided and we wanted to update you on it.
It would be, from the very beginning, someone would come in
and say this is what we're looking at and we want your
involvement in this from the very beginning and not someone
coming in from the end.
One of the complaints that I have heard from a number of
western states is that their first involvement in it is when
the decision has already been made.
Mr. Loesel. You mean they weren't on the scoping list?
Mr. Pombo. No.
Mr. Loesel. That seems hard to believe.
Mr. Pombo. I actually have one particular project in my
district that a community meeting that was held, and a year and
a half after the community meeting was identified as a scoping
session. It was not at any time prior to that ever identified
as a scoping session. It was a community meeting that was not
attended by the state officials, the county officials, because
it was a community meeting to discuss planning in one
particular area or how they were going to deal with some
environmental problems in one particular area.
A year and a half later, it was identified as a scoping
session and the final document that they ultimately came up
with, that was ultimately presented to the county and state
officials, supposedly was drafted from the input that they got
at that one community meeting.
Mr. Loesel. We don't let them get away with that kind of
stuff in Virginia. I mean, we whip them into shape, I think.
Mr. Pombo. As the Governor testified earlier, I think he
would take issue with what you just said in that he wouldn't
let them get away with it either, but the way that they do
things is not exactly the same from state to state.
Mr. Loesel. I recognize that. But I think we have played an
important role in shaping how the Jefferson and the George
Washington interact with the public.
For instance, as part of the settlement agreement on the
appeal of the Land and Resource Management Plan that was done
for the Jefferson National Forest back in 1985, there was a
requirement that there be an annual conference at which the
Forest Service lays out for the public those projects which are
going to be put on the table in the next year and to provide
some background information.
We are very proactive in making certain they tell us what
it is that they want to put out there. If they don't do that--
if they don't give us advance information before they do
scoping--we're on their case.
We make certain that there are extensive lists where people
get notice of NEPA opportunities. It's hard for me to believe
that people who want to be involved would not be on lists--that
they would allow that kind of action to go unchallenged.
The public and officials have some responsibilities here.
Mr. Pombo. There is a very different relationship. Let me
turn to Mr. Leftwich just for a second. Has that been your
experience with this process? Have they been forthright and
notified everybody that this is what they were looking at and
this is a scoping session that we're going to go through?
Mr. Leftwich. In some cases, yes, in some cases, no. It
seems to me the problem, though, with scoping is that the
agency, particularly the lead agency is reluctant to, at some
point, say we have scoped this. And what has been our
experience is that additional commenters will come in at the
eleventh hour in this process over here on the chart and
suddenly you're back to square one.
So there seems to be the need for opportunity for public
participation and then at some point in the process there has
to be a time where that's it, we have scoped this, these are
the issues, and we're moving forward. And lead agencies are
reluctant, in my opinion, to take that responsibility and roll,
primarily because of the litigation and the appeals process
that's been alluded to all day long.
They feel like they are under a microscope and they're
going to be sued if some commenter comes in right before the
final EIS document hits the streets and raises another issue
that requires an additional study that causes another delay and
then you're back in the loop here.
So I'm not sure--I think the whole public participation
scoping issue needs to be emphasized and one of the suggestions
that I would make is that Congress and CEQ ask for periodic
reports from the agencies about their implementation of NEPA.
I know of major land management agencies that don't have
NEPA in their budget. It's not an identified line item that
goes down to the district level where these projects are
actually implemented.
So what that says to me is it's not a priority, they're not
budgeting for it, they're not staffing for it, there is not
even some basic management skill sets within the agencies to
get through what is a fairly complicated process.
You throw in the integration of the other environmental
laws that kind of get wrapped into this envelope of NEPA, where
you're analyzing the Clean Water and Clean Air issues and ESA
gets thrown in and 404 permitting from the Army Corps of
Engineers and a multitude of other environmental laws that have
specific permit requirements that are also looked at in the
overall context of baseline information included in a NEPA
document.
Again, I think it goes back to who is charged with the
responsibility of that process and that's the lead agency. So
there's two or three key areas there. I think the public
scoping is certainly one of them and the participation and then
putting some sideboards on the process, and that's what we
attempted to do because we had so many going on at the same
time. We had four.
We didn't really understand all the steps and the agencies
certainly didn't really understand all the steps, and we're
reluctant to commit to time-frames.
The CEQ regulations talk about major energy project
development and implementation under NEPA not taking over 12
months. Well, that's kind of laughable given the time-frames
that we're dealing with now.
Mr. Pombo. What is the typical time-frame you're dealing
with right now?
Mr. Leftwich. Multi-year, three and a half to 4 years, some
as little as 27 months.
Mr. Pombo. And that's if there's not any litigation.
Mr. Leftwich. Yes, and that's not including appeals. There
are certain industry activities, and mining just happens to be
one of those poster child type for the environment, that are
appealed automatically. There are environmental groups in the
west that automatically appeal every NEPA decision that has to
do with mining. So that's a given.
So that is even an add-on to this process that I've
illustrated here. When appeal is then issued, the agency is the
one who has to defend their decision and many times they don't
have the legal resources and/or the technical resources to
really do that, and then it falls back on the proponent to help
provide that information and then the industry is criticized
because they're controlling the process.
So you just kind of get into this tailspin here of a loop
that you can't get out of and I think if we were to sit down
and say what is the really objective here, it's to analyze the
impacts and spend time, money and people, those resources, to
mitigate and to enhance the environment instead of the process,
but we're spending all the resources on the process.
Mr. Pombo. I think that's an important point and it is
something that Mr. Hutchinson brought up earlier and that we
have had other people testify to during this hearing, is that
we end up spending the money, the time, the energy on the
process and begin to forget that the reason we're doing this is
for the environment.
What's the typical cost of going through a NEPA process on
a mine new that you're involved with?
Mr. Leftwich. Of the four that we went through, the least
expensive one was about $1.2 million. Another one was $6
million and the company----
Mr. Pombo. That's just process.
Mr. Leftwich. That's to get to a record of decision.
Mr. Pombo. You're not talking about doing anything for the
environment. You're talking about $6 million of paper.
Mr. Leftwich. That's correct. And what's deceiving about an
EIS is if I were to bring in a typical mining EIS document, it
may be two or three inches thick. But what most people don't
understand is the huge amount of research, baseline data work
that goes into compiling--it's a summary document. If you look
at your handout of the process and the steps there, each one of
those baseline studies may be another pile of paper, depending
on the issue, ground water modeling, wildlife, all of those
resources that are studied.
And so those become a huge pile of paper there that back up
the document which is really written to summarize the studies
and to make some decision.
Mr. Pombo. Let me turn to Professor Caldwell for a minute.
One of the things that you stated a couple of times in your
testimony was that a renewed commitment to NEPA, additional
dollars to fund it, is what it needs.
One of the problems that we have in looking at this whole
process is that you look at a document like he's got laid out
there that takes three and a half to 4 years, cost $6 million.
How will additional money and people and a renewed commitment
to the NEPA process shorten that?
Mr. Caldwell. Mr. Chairman, I do think the additional
funding would enable the CEQ to more extensively consider these
problems. But let me add that there is a larger problem that
hasn't been referred to and this ties now, I think, to the
succession of Presidential Administrations.
Under the Constitution, the President has the
responsibility to take care that the laws be faithfully
executed. But we have had a succession of Presidents that have
not shown a very great enthusiasm for the implementation of
NEPA.
That does not mean that they have been opposed to it, but
NEPA needs the very clear signal and support from the White
House and also an objective kind of inquiry coming from the
Congress to see that the NEPA intent is implemented.
This Act was never intended to produce million-dollar
impact statements nor to require the length of time that some
of them take. We had, I think, the Alaska Pipeline impact
statement that weighed about 50 pounds. Now, these are not to
be attributed to the law itself.
Mr. Pombo. What are they to be attributed to?
Mr. Caldwell. To the misapplication of law, both in the
Congress and the White House.
Mr. Pombo. Do you think that they ever intended for the CEQ
to become a super environmental agency?
Mr. Caldwell. No.
Mr. Pombo. That would have one person as the head of it and
they would have complete and total control over all other
agencies?
Mr. Caldwell. Well, that is not the case now and it was
never intended to be the case. The reason that the CEQ now has
one councilor, Katie McGinty, is due to what I would regard at
least as a judicial decision that under the Government in the
Sunshine Act.
If the three members of a council have meetings together,
attempt to work out policy positions and so on, that those
meetings must be scheduled, there must be notice, and they must
be open to the public.
Now, there are meetings, of course, where public
participation is very desirable, but there are other kinds of
problems that--where a committee needs to work through the
issue before it can take an informed and intelligent position.
So that I do think that it is a mistake to regard the CEQ
as a potential high court for the environment or super agency.
My disappointment, I guess, with respect to the CEQ is that it
has not been able to be more effective.
If you look at the section of the law which creates and
empowers the CEQ, there are many things that it has not done,
that it has not been permitted to do, in effect, by under-
staffing and by under-funding.
For example, we have had several bills introduced into the
Congress, one of them, interestingly enough, by what some
people regard as an odd couple, Gore and Gingrich, calling for
an estimate or some kind of a facility in the Federal
Government for looking at or forecasting trends in environment,
population and resources.
You would think that this would be a very rational kind of
thing to do, but it never gets anywhere with the Congress. Now,
as I would read Section 202 of the National Environmental
Policy Act, the CEQ could initiate such action if permitted to
do so. But whether it's permitted to do so depends, I think,
very significantly on Mr. President and on the respective
committees of the Congress.
There has been, to me, unaccountable, that there should be
in the Congress such a resistance to any attempt to forecast.
By that, I don't mean predict. I mean to look at the trends
that are occurring in the society, their interactions, to the
best of our knowledge, and draw from them at least certain
findings with respect to the direction in which we're going.
Now, we don't do that.
Mr. Pombo. You don't understand why there would be concern?
Mr. Caldwell. Pardon?
Mr. Pombo. You don't understand why there would be concern?
Mr. Caldwell. Well, the Wall Street Journal at one point
had an editorial to the effect that this was going to be a bad
idea because it would destroy consumer confidence, that we
can't predict, we don't know what's going to happen in the
future, and, therefore, it would be a waste of time and money.
I don't agree with that assessment at all.
Mr. Pombo. But when you have government agencies that do
things like this and have this kind of a result, when you talk
about expanding their power to that degree, it obviously is
going to cause some concerns amongst the Members of Congress
that the result will not be a streamlined process, but a much
more heavy process that people have to go through that when you
begin to shift everything to the Federal Government, you begin
to cut counties and cities out and you begin to say if you want
to do anything, you have to come to these 13 government
agencies to get approval.
All of a sudden Members of Congress begin to get real
nervous about doing that. It's not that anybody is afraid of
information. It's not that anybody is afraid to find out what
the forecast would be. It's placing all of that power in the
hands of one person who may have an agenda, who happens to be
running one of the agencies. That's what the concern is.
Mr. Caldwell. That certainly was not the intent nor the
content.
Mr. Pombo. From an academic point of view, sitting there as
a professor with a great resume, you can say that this would be
great if we had this information. As a policymaker sitting on
this side, I'll tell you it scares the heck out of me to give
that kind of power to the agencies, because this is not a one-
time event for me. I get people walking into my office every
single day from my district with lists like this or with 7-year
processes to get a grazing permit approved. That happens in my
office every single day.
So we have to try to figure out a way to protect the
environment without punishing our citizens the way that we're
doing right now.
Mr. Caldwell. Well, I certainly agree with what you say,
but I do not follow the reasoning that an attempt to track the
trends that we now have, we can see in our society, to indicate
how matters of population, resources, environment interact, and
these are basically human problems, how that is going to create
great power in any particular individual.
Certainly there is nothing, in my view, of that as a policy
question that would lead to that conclusion. I mean, the
Congress has, certainly, the power to create whatever kind of
institution and to lay down what groundrules would be
desirable.
Mr. Pombo. Let me interrupt you just on that point. You
heard the testimony earlier about the American Heritage Rivers
Initiative. That was not a Congressionally approved project. In
fact, Congress said no, but they did it anyway. They took that
power from Congress and created that agency anyway.
So to say that we could just sit down and say you guys have
to stay within the rules, well, maybe in theory that's the way
it would work. In reality, that's not the way it is working.
So there is some confrontation between the legislative
branch and the executive branch in who gets to lay down the
guidelines. I mean, everything that we're talking about here
supposedly is a law that was passed by Congress and Congress
has the ultimate decisionmaking power, and that's not
necessarily the way it works in process.
The way it works in process is these guys spend 4 years and
$6 million coming up with a document that has dubious
environmental quality to it and it's just a $6 million stack of
paper. Now, if you ask Congress, would you rather them spend $6
million on a stack of paper or actually do something to protect
the environment, it would pass out of here unanimously to do
something to protect the environment. But that is not the
process that we're going through right now.
So anytime we question the process, all of a sudden it
becomes a question of whether or not we want to protect the
environment. It has nothing to do with that. It has to do with
six inches of paper and $6 million.
Mr. Caldwell. Well, the complaint, it seems to me, there is
to be directed toward the agency that is administering grazing
permits or building access roads in the forests. It is not to
the National Environmental Policy Act.
We have the Public Land Management Act, we have the
national forest legislation, and those are principal
authorities or sources of authority on which those agencies
act.
Now, the power in the executive branch is certainly
diffuse. I would argue for more effective use of the Executive
Office of the President, which was created in 1936, during the
Franklin Roosevelt Administration, to provide for a better
oversight on the part of the Executive of the various agencies
in the executive branch.
It's been observed by some students of what the Federal
Government does, that some of the agencies have been mandated
by the Congress for particular reasons, for particular
interests, to take certain kinds of action. These are issues
that are often popular with particular Members of the Congress,
but they also preclude an agency decision. If an agency, for
example, is the Forest Service, through some, say, rider to an
appropriation bill, mandates a clear-cutting of a large area in
a national forest, the Forest Service is bound perhaps to do
that, to follow what the Congress has decided.
But many of these issues are not necessarily reflective of
public opinion generally. They may be highly localized in
their--both in their impact and their impetus. I mean, the
power and activity that has brought about this legislation.
So I think it's a more complex situation than perhaps we
might----
Mr. Pombo. But that's not--in theory, I understand what
you're saying. In reality, two years ago or so, we passed the
salvage logging bill through the Congress, through the Senate,
signed into law. The executive branch refused to abide by that
law and never implemented that law.
It was passed, it was signed into law. They just decided
not to do it. They didn't like it. So they never did it.
There's a number of pieces of legislation that have been passed
through this Congress that because of lawsuits or an agenda of
someone within the execu-
tive branch never get implemented, and we end up with this kind
of a confrontation between the legislative branch and the
executive branch.
I think that Mr. Hutchinson and what they have gone
through, as they have been extremely proactive in trying to
have local community involvement with these decisions.
What Mr. Loesel is describing is having local community
involvement and locally based people involved with these
decisions. The way the process currently works, that just
doesn't happen. I'm glad that Mr. Loesel claims he has not had
those problems. I'm happy that he hasn't.
If you were to talk to my constituency, you would hear a
very different story than what we are hearing from you, because
it's just done differently in different parts of the country.
Mr. Loesel. Maybe you need me to come on out there and help
organize some things.
Mr. Pombo. That may scare my constituents more than----
Mr. Loesel. Yes, it may. Could I answer a question that you
asked initially about mandating through legislation involvement
of states and--help me out with the other aspect.
Mr. Pombo. It was to mandate the state and county
involvement.
Mr. Loesel. In theory, there may be one answer,
Practically, I think there's not going to be enough money in
the county or state budgets to get involved in all of the
decisions. The practical result of that would be that the
process would come to a halt. If it were structured in such a
way that it required their active involvement and they don't
have the money, then nothing could proceed.
So I would be very careful about developing a process that
requires--that wouldn't work unless their involvement were----
Mr. Pombo. What is the annual budget of the organization
that you represent?
Mr. Loesel. About $4,000.
Mr. Pombo. And do you participate in the process from the
beginning?
Mr. Loesel. Sure.
Mr. Pombo. And your county that you live in could not come
up with $4,000 on an annual basis to have somebody participate
in the process?
Mr. Loesel. But there's a difference. Most of the
involvement from our organization is volunteer. They do it
because they want to. You don't get that kind of volunteer
activity from state agencies and from county agencies. It
doesn't happen.
Mr. Pombo. Mr. Leftwich.
Mr. Leftwich. Mr. Chairman, this has raised an issue that
we maintain is a huge problem with the current implementation
of NEPA. It is that the agencies themselves don't have the
wherewithal to implement this process over here. They don't
have the technical staff and the management skill sets. They
don't have the resources, period, in many cases to do this, and
that's why there's these huge cost over-runs and it ties back
into the process has kind of gotten out of control.
It's not just gridlock. They cannot fulfill their mandate
to implement NEPA.
Mr. Pombo. I understand what you're saying, but I'm not
going to agree with you, because I happen to be involved with
the budget process, as well, and I would suggest that you take
the Interior Department's budget and look at how much money
they get. It's a matter of priority. It's not a matter of
whether they have the money.
Mr. Leftwich. I think that's right. I think that if you
talk to many agencies, it's not even a budget item at the local
level for NEPA implementation, and yet it's a requirement of
the law.
Mr. Pombo. It's a requirement, but it's not a priority.
Mr. Leftwich. Yes, that's the problem. Plus, the process
has become so cumbersome, I think that if the process was back
streamlined to a reasonable level, that there would be adequate
resources to produce the type of analysis that I think was
envisioned in the beginning.
But it's gotten so complex and out of hand that, in fact,
agencies themselves, even if they had a budget, would probably
not be able to staff adequately to do the level of detail that
everyone in the world wants done in EIS's.
Mr. Pombo. Well--yes, sir.
Mr. Hutchinson. May I address that point?
Mr. Pombo. Yes.
Mr. Hutchinson. The process of involving non-Federal
government entities, soil and water conservation districts,
counties, states and tribal governments, we're talking about
specific jurisdictions. Those entities already have plans and
policies in effect.
They already have state statutes and county ordinances that
they are carrying out. The object in the NEPA process is
disclosure, disclosure to the Federal agency decisionmaker what
those plans and policies are.
We're not talking about giant expense. Certainly, at the
onset, when we got into this process, we had to do some
economic analysis. We had to go out and hire some biologists
and culturalists, et cetera, to take a look at it. But this is
simply part of the checks and balances of our system. That's
what those states are out there for. It's part of the check and
balance system in our Federal system.
So the additional cost or involvement in that is just part
of the way of doing business in our country and most of those
budgeted items are already in there. And as far as our county
organization, we encourage voluntary participation by the
citizens in the community on those communities that are
bringing this input to the table for those Federal agency
decisionmakers.
Mr. Pombo. Let me ask you a question. You said you're
involved with local planning in your county.
Mr. Hutchinson. Yes.
Mr. Pombo. Did you abide by Federal, state and county
environmental laws when you developed your general plan? That's
what we call them in California, a general plan. Did you abide
by the laws or did you ignore those and just do what you
wanted?
Mr. Hutchinson. I think I would say that we abided by the
principles, because there really wasn't any guidance for the
area that we were going into. And the type of land planning
that we're talking about, again, is more like a NEPA document.
It's disclosure of the conditions, disclosure of the existing
conditions, a reasonable prediction of future conditions, and
will the natural resources that are there fulfill those needs
in the future.
That's a planning document. You can have social
engineering, which is what a lot of planning documents end up
as, or you can have a planning document that offers disclosure
to decisionmakers, what the conditions are and what the
possible conditions in the future are going to be.
That's the way our document turned out.
Mr. Pombo. Thank you. I want to thank this panel very much.
We could go on the whole rest of the afternoon discussing this.
But I appreciate your patience in waiting for the Committee to
get to you. I appreciate your testimony and answering the
questions a great deal.
There will probably be additional questions that we will
submit to you in writing. If you could answer those in a timely
manner, we will hold the hearing record open for 10 days so
that you can respond to those, but I know that the Chairman of
the Full Committee did have some additional questions that he
would like to ask.
Unfortunately, he was not able to get back from his meeting
before we adjourned. So I'm sure that there will be additional
questions that he will have for each of you.
Thank you very much. The hearing is adjourned.
[Whereupon, at 3:35 p.m., the Committee was recessed, to
reconvene at the call of the Chair.]
[Additional material submitted for the record follows.]
Letter of Robert S. Lynch, Chairman of the Board, Central Arizona
Project Association, Phoenix, Arizona
Dear Mr. Chairman:
Thank you for the opportunity to testify at the Committee's
September 24, 1997 hearing on the American Heritage Rivers
Initiative and H.R. 1842 proposing to terminate further funding
for this new ``program.'' I hope our reasons for keeping this
spurious adventure out of the Colorado River Basin highlighted
the potential for confusion and duplication of effort we see in
the Initiative.
I was troubled by the testimony of Kathleen McGinty, Chair
of the Council on Environmental Quality. Specifically, I was
mystified by her bald statement that Congress had authorized
the Initiative in passing the Policy section (42 U.S.C.
Sec. 4331) of the National Environmental Policy Act (NEPA). My
notes reflect that she directly claimed that Section 101(b)(4)
of NEPA constituted Congressional authority for the Initiative.
My first reaction was: Why did it take the executive branch
twenty-seven (27) years to discover this programmatic
directive? Since NEPA is written in mandate format, how could
this have escaped litigation by environmental groups for so
long? Obviously, it couldn't because the authority doesn't
exist.
My second reaction was that the Supreme Court had dealt
with this issue, making Ms. McGinty's position even more
amazing. I did some research and thought I should share the
results with you as you consider taking action on H.R. 1842.
Section 101 of NEPA neither authorizes nor requires action
The nature of Federal agency obligations under NEPA has
been the subject of a number of Supreme Court decisions. In a
nutshell, these opinions say that Section 102 (42 U.S.C.
Sec. 4332) contains the procedural requirements of NEPA, the
so-called ``action forcing'' provisions, which are the only
requirements of NEPA. NEPA contains no substantive law and
invoking NEPA does not interfere with the ultimate agency
decision if NEPA processes have been correctly conducted.
Beginning at least with Kleppe v. Sierra Club, 427 U.S. 390
(1976), the Supreme Court identified the NEPA ``program'' as
its action-forcing procedural duties under Section 102. Id.,
427 U.S. at 409, n.18. Section 101 has been consistently
described as a set of national goals. ``NEPA does set forth
significant substantive goals for the Nation, but its mandate
to the agencies is essentially procedural.'' Vermont Yankee
Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978); accord,
Stryker's Bay Neighborhood Council v. Karlan, 444 U.S. 223, 227
(1980). As recently as 1989, the Court has distinguished
between Section 101's declaration of ``a broad national
commitment'' and Section 102's ``action-forcing procedures.''
Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348
(1989).
This being the case, no programmatic authorization can be
tortured into NEPA goals. Any such new program must come from
Congress.
I hope this analysis is of some utility as you continue to
address the Initiative and H.R. 1842.
------
Statement of Randy L. Allen, General Counsel, River Gas Corporation,
Northport, Alabama
I am general counsel for River Gas Corporation, a closely
held independent operator of coalbed methane wells with
approximately 100 employees. Since 1991, River Gas has
purchased approximately 128,000 acres of oil and gas leases
within a 300 square mile area in Carbon and Emery Counties,
Utah, including 76,000 acres purchased from BLM, 27,000 acres
purchased from the State of Utah and the remaining acreage
purchased from private landowners. We currently operate 114
wells in the area, but we have not drilled a single well on our
Federal leases.
In February, 1994, BLM notified us that we could not
develop any of our leases until after an Environmental Impact
Statement was prepared. BLM was the lead agency. No other
Federal land management agencies were actively involved. One of
my responsibilities was to coordinate River Gas' limited role
in the EIS. We initiated the process in April, 1994, by
submitting a proposal to drill up to 1,000 wells on our leases.
The original schedule called for completion before June 1,
1995, and the original budget was $200,000. The Final EIS
Record of Decision was signed in May, 1997, over 3 years after
it began and almost 2 years late. EIS expenses were over $1.3
million, $1.1 million over budget.
No environmental groups opposed the project. Local
sportsmen were concerned about potential impacts to deer and
elk. Most of the opposition came from governmental employees,
primarily from within the BLM. Early in the process field
agents of BLM indicated that they opposed our proposal and they
would make the process as difficult as possible. As a result,
the process quickly became adversarial. Individuals in the same
organization that sold us property rights for a lot of money
were actively working to block us from making use of the
property it sold us.
Based on our experience, we are concerned governmental
agents may retaliate against us because of my appearance to
testify, causing River Gas additional harm. We would like the
ability to return in event retaliation occurs.
Most BLM employees are hard working, conscientious,
courteous, fair and reasonable. They sincerely try to do the
right thing while handling an overwhelming workload with
limited time and limited resources. Their jobs are not easy,
particularly considering the complex and sometimes conflicting
directives they must follow. They have fairly broad discretion
to analyze each individual situation on its own merits, and try
their best to issue well reasoned and fair decisions. When
these people control the NEPA process it seems to work well.
Unfortunately, there are a few bad apples. Through the free
rein allowed by the current NEPA system, these agents can kill
proposed projects by requests for expensive data acquisition,
simple stalling, and other tactics described below. The system
is flawed because these actions are allowed to happen without
oversight and with no forum for project proponents to seek
timely redress of abuses.
We were fortunate. We survived the EIS process. If we did
not control leases on a block of State and private acreage or
had not been backed by larger financial partners, we would have
been unable to drill our existing 114 wells. Without our
partners and the producing wells, we would have been unable to
cash-flow the EIS process. It would have killed us because we
had invested our entire future on the Utah properties. Not all
small companies are so lucky and few projects in the West can
be partially developed without accessing Federal land. The
uncertain timeframe and unpredictable up-front cost associated
with developing Federal land are forcing larger companies
overseas and crushing small companies.
Of equal importance for state and national concern, the
vast natural gas reserves underlying the project would likely
never be developed if we had been unable to withstand the
process. In 1997, we sent $2.3 million to the State of Utah in
royalties, dedicated for the benefit of Utah school children.
If we would have been forced to abandon the project before it
was proven, it would have become tainted and other companies
would have been hesitant to take on the risk. But for a stroke
of luck, Utah school children would have lost a considerable
resource and the U.S. taxpayers would have lost the potential
for significant income.
The NEPA process involves four critical steps: (i)
identifying significant issues, (ii) describing what is known
about the environment, (iii) developing alternative development
scenarios, and (iv) analyzing how each alternative will impact
each aspect of the environment. Each successive step builds
upon the earlier ones. Changes late in the process can cause
significant backtracking, delays and cost increases. For
example, if a new issue is identified during impact analysis,
the new issue may require additional data to describe unique
aspects of the environment, modification of alternatives and
new impact analysis.
Field agents of the lead agency must be actively involved
for successful completion of each step. As each step can
involve broad discretion, avenues for abuse exist.
As the project proponent in the third party EIS process, we
agreed to pay a consultant to perform work on behalf of BLM. We
were told that, based on BLM time and budget constraints, if we
preferred to have BLM prepare the document in-house they would
not have been able to complete it until 2005-2010. The
consultant was to work under BLM supervision. Our involvement
was limited to paying the bills, becoming involved with
schedule concerns, designing our proposed action, and
negotiating how much new information would be gathered through
field surveys at our expense. We were included in discussions
while alternative development scenarios were being developed.
We were not involved at all with impacts analysis or
discussions setting methodology. We wanted to make sure we had
absolutely no influence on this part of the process. We did
however pay enormous bills for the work. By signing the MOU we
had signed a blank check, and we had created an interesting
marriage. River Gas, a company in business to make profit, had
agreed to pay for a government project. We knew up front that
our involvement would be limited and that at times we would not
even know the details about what we were paying for.
Examples from our experience follow.
Identifying Issues
Issues are identified through agency scoping and public
scoping. Ideally, agency scoping should occur before public
scoping to provide a strong foundation for public input. We
understood this would happen on our EIS, but it did not. We
also understood that public scoping would last at least 30
days, but that BLM would continue considering new issues
submitted after the deadline. We were told that public scoping
never really ends, setting up strong possibility of future
backtracking.
We were very concerned about endless public scoping, but as
it turned out it was not an issue in our EIS simply because the
public did not identify many significant issues. The real
problem in our situation was that agency scoping continued well
into the process, creating an extremely fluid situation.
In April, 1994, we met with BLM representatives from the
Price River Resource Area office and the Moab District office
to initiate the EIS. Price controlled all the data critical for
the process and the EIS team leader resided in Moab. The State
Director maintained signatory authority over the project. BLM
informed us that certain data gaps existed, and we made plans
to fill those gaps by contracting with third parties to conduct
field surveys. We discussed that agency scoping would take
place during the contractor selection process, and that as soon
as the contractor was selected, a kick-off meeting would be
held to (i) introduce each BLM resource specialist to each
expert from the consulting company, (ii) discuss BLM
expectations for each significant resource, (iii) cover
methodology concerns and (iv) transfer all available data. We
wanted everyone to be on the same page.
The contractor was selected on schedule and the kick-off
meeting was held on July 28, 1994. We flew the entire
consulting team from Denver to Price for the meeting. We
envisioned a serious group meeting followed by individual
meetings between the experts, a field tour and data transfer. I
thought the consultants would be leaving with clear direction,
knowledge that they were on the same page with BLM agents, and
truck loads of information. None of this happened. The meeting
was chaotic. BLM field employees were not prepared. They came
and went freely during the meeting. It was clear that they had
given no thought to our proposal, the EIS or anything related
to the meeting. Several comments were made by BLM agents that
they wanted to see our proposed action, which had been
available since the April meeting. No data or guidance was
transferred.
It was clear that the project was in serious trouble. Our
budget and schedule were based on the assumption, supported by
the EIS team leader, that if we filled certain identified data
gaps all other data would be readily available. The schedule
called for consultants to begin describing the environment
during public scoping, so the alternatives could be defined
immediately after scoping and the impacts analysis could
proceed shortly thereafter. The original $200,000 budget was
based on this also. Because we had no cooperation or concern
from the Price office, the entire game plan which had developed
from the April meeting had dissolved. Since the budget and
schedule were based on the game plan, they were no longer
valid.
Although agency scoping had not really begun, public
scoping began in August, 1994. A public meeting was held on
September 8, 1994 in Price. The BLM hydrologist and BLM
recreation specialist each arrived with a separate group of
friends. On several occasions during the presentation, I
noticed that the BLM hydrologist leaned to the gentleman
sitting next to him, whispered in his ear, then the gentleman
rose to ask a question relating to water issues. The same thing
happened after the BLM recreation specialist whispered to those
around him. It was my impression that BLM agents were rallying
opposition to our proposal during the public scoping meeting.
No significant new or unexpected concerns were raised by
the public. I don't recall any detailed discussion about deer
and elk being a major concern during the meeting. Most of the
discussion centered on socioeconomics, noise, air quality,
water quality, and visual impacts, routine topics for an EIS.
Following the meeting I was approached by the BLM wildlife
biologist who stated that the biggest roadblock to our project
would be deer and elk. I'll never forget the look in his eye as
he said it. At the time I did not understand what he had said.
I understood the words, but I could not comprehend how big game
could be the deadly issue because it had not been raised. The
meaning soon became clear.
Data Availability & Adequacy
During public scoping the Price office prepared a memo
requesting libraries of new information that would be critical
for beginning the EIS analysis. I thought we had settled all
data issues when we agreed to fill certain data gaps the
previous April, five months earlier. BLM's EIS team leader
indicated we should not be overly concerned by the memo and
that the issues would be resolved.
A meeting had been scheduled on September 16, 1994, the
week following the public scoping meeting, to discuss the
alternative development scenarios that would be analyzed in
detail. The meeting took place in Price as scheduled, but no
alternatives were discussed. The meeting focused on BLM's
requests for additional information to describe the
environment. The EIS team leader had been unable to resolve the
issues. BLM requested that we pay to gather a great deal of
additional information through field surveys before the EIS
analysis could begin. Some of the requests seemed legitimate,
but others were outrageous. For example, the cultural resource
expert wanted a class III survey of the entire 300 square mile
area, which would entail a team of archaeologists walking the
entire area separated by no more than 15 meters.
We needed a process to reach final resolution of the issues
quickly. No one was available with the appropriate authority
and no process existed. Simply because agency specialists
issued requests, we were forced to have experts research the
legal and scientific bases for the requests to determine
whether they were appropriate. After we had performed our
investigation, no procedure for redress was available to us.
Responding to the requests was very time consuming and
expensive. We agreed to perform some of the surveys, but not
all of them. We attempted to resolve the remaining issues
through follow-up meetings with the very agents who had
requested the information in the first place. We had to
convince them they were wrong without any objective oversight.
It was a difficult situation.
During one of the meetings, the BLM recreation specialist
said that he had moved to Price from California, he had seen
what oil and gas companies had done there, and he was not about
to allow that to happen in Price. I still do not know what
companies had done in California, but he had clearly
articulated his personal opposition to our proposed
development. Other agents in the Price office made their
opposition known through their actions and inaction.
Following several follow-up discussions, a meeting was held
on November 4, 1994 involving BLM, USFS, USFWS and Utah
Division of Wildlife Resources. By this time, the issues had
been narrowed and the most significant issue involved deer and
elk. BLM and DWR explained they had enough information to know
where big game critical winter range was and where high value
winter range was, but they needed to determine where the most
critical portion of the critical range was. Without this
information, DWR and the BLM wildlife biologist indicated they
would be forced to protest the development. A three to five
year survey was required at an estimated cost of $500,000.
A DWR official indicated, with a great deal of emotion,
that he knew our proposed development would decimate the elk
herd and he was not about to leave that legacy for his
grandchildren. When asked whether his assertion was supported
by empirical evidence, he did not answer. The entire discussion
was more emotional than scientific.
We could not conduct the survey. The projected expense was
more than double our entire EIS budget and it would have
delayed the EIS three to five years. Based on our reading of
the CEQ regulations, adequate information was readily available
to go forward with the EIS. However, based on our perception
that BLM agents coached the public to oppose us during the
public scoping meeting and DWR's obvious concern, we wanted to
make sure there was enough information to avoid successful
appeal. We ordered a literature review, which ultimately
amounted to two inches of paper documenting studies performed
on big game. It cost over $50,000.
The consultant presented the draft to BLM in January, 1995.
BLM requested an impact summary and conclusions. We objected
because the EIS process itself is intended to assess potential
impact, and there is no need to include it in a literature
review. After discussion, we directed the consultant to prepare
the impact summary and conclusion. They would need to do the
work anyway in the EIS, so we believed it would not create
extra work or expense.
Once the modified report was presented, BLM wildlife
biologist objected to the conclusions and requested peer review
of the report. It was our understanding that peer review should
take place during the public comment period on the draft EIS.
After additional delay on this topic, the literature review was
finally accepted in October, 1995, over 11 months after it
began and over 9 months after the first draft was submitted.
Alternative Development Scenarios
A range of alternative development scenarios, including the
no action alternative and the proposed action, must be analyzed
in detail in an EIS. While the events described above were
ongoing, many meetings took place to develop the alternatives
that would be analyzed in detail. Since the most significant
concerns revolved around potential impacts deer and elk, the
alternatives were developed with this concern in mind.
On December 1, 1994, the alternatives were finalized in
concept. On May 23, 1995, almost 6 months later, we learned the
alternatives had been thrown out by the Moab District Manager,
the EIS team leader's boss, at the request of the Price BLM
resource specialists. Through subsequent discussions with BLM,
we believe the EIS team leader's efforts to gain control of the
project were being thwarted by field level BLM experts who were
going over his head to change his decisions. As a result, the
project was delayed and we were forced to pay the consultants
to repeat work.
A new set of alternatives was finalized in concept during a
meeting on October 26, 1995. For the first time during the
process, the consultant had the clear direction necessary to
move forward in earnest drafting the document. On February 5,
1996, the consultant presented the preliminary draft EIS to BLM
for review.
The next month, during meetings on March 20-21, 1996, the
BLM wildlife biologist suggested that a new alternative be
developed for detailed analysis. In consultation with the Utah
DWR, BLM at this time knew which portions of big game critical
winter were the most sensitive areas. The areas were known as
Security Areas, and a new alternative was presented on April 3,
1996, which would create no surface occupancy zones within the
Security Areas.
The areas were depicted without regard to property
ownership boundaries or our valid existing lease rights.
Without becoming bogged down with those or other related
concerns, we were very concerned about the data used to create
the Security Areas. On November 4, 1994, we were told that a
three to five year study was necessary to determine boundaries
of the most highly sensitive portions of critical winter range.
Approximately 18 months later, the information they desired had
somehow become available and it was being used as the basis for
a new alternative being proposed at an extremely late date in
the process.
When asked whether any field surveys were conducted over
the past 18 months, the BLM wildlife biologist stated that none
had been performed and that the Security Areas were based on
his 18 years of experience and his consultation with Utah DWR.
It is possible that the information was known in 1994, and
the study request was simply an attempt to delay the process
for three to five years. It is also possible that the Security
Areas were not based on scientific information at all. In any
event, it is unclear why it took 2 years after the EIS began
for the alternative to be proposed by BLM. Nonetheless, the
Security Area Avoidance Alternative was designed, drafted,
analyzed in detail and presented as the BLM preferred
alternative in the Draft EIS.
Impacts Analysis
After the environment is described and each alternative is
designed, an assessment is made as to how each alternative will
potentially impact each significant aspect of the environment.
The system has established extreme deference to the judgment of
Federal resource specialists on scientific issues. Scientists
routinely disagree on how to interpret the same information and
on how the impacts should be assessed. It is important that the
government scientists agree on the methodology before the
consultants begin their work. Otherwise, the consultant may be
forced to repeat the analysis causing additional expense and
delay.
Through our consultant I understand that BLM routinely
responded to the consultants' requests for input on methodology
with statements along the lines of ``You are the expert, they
pay you the big bucks to figure out those things.'' In general,
there seemed to be an attitude among BLM resource specialists
that they did not want to be bothered until the work was
completed. So BLM did not know the thought process behind much
of the work when the preliminary draft EIS was presented for
BLM comment. Without the proper guidance up-front and BLM
involvement during the work, the consultants' work failed to
meet BLM expectations in several areas, leading to further
backtracking, further delay and additional cost repeating work.
Delayed Response to Preliminary Draft EIS
To ensure the document meets lead agency approval before it
is issued to the public, a preliminary draft must be reviewed
by the lead agency and changes will normally be made. In an
ideal situation, the lead agency works so closely with the
consultant during the process that few changes are required.
Our EIS did not follow the ideal scenario.
As discussed above, the preliminary draft was presented to
BLM on February 5, 1996. BLM's EIS team leader agreed that all
BLM comments would be submitted to the consultant by February
19, 1996. Preliminary comments were submitted on March 13, and
a meeting was arranged for March 20-21 to discuss the comments
in detail. During the meeting, major changes were requested
including inclusion of the new alternative, later called the
Security Area Avoidance Alternative.
The requested changes meant the consultant had to gather
additional data and perform new impacts analysis. During the
March 20-21 meeting, BLM resource specialists indicated they
would provide the information to the consultant soon. On May 7,
1996, the consultant still did not have the necessary
information, so the BLM EIS team leader ordered the consultant
to go forward with its work without the information. He was
unable to force the resource specialists to perform their jobs,
so he attempted to push the project forward without them. The
consultant simply did not have what it needed to go forward
and, even if it did, would have been reluctant moving forward
without specialist approval for fear of future backtracking. On
June 17, 1996, the consultant received the final guidance on
which it had been waiting, nearly three months after it had
been promised.
In an effort to avoid repeating delayed review of the
second preliminary draft EIS, the EIS team leader issued a
letter to the BLM Price office dated May 30, 1996, stating that
only 2 weeks would be allowed for review of the second
preliminary draft. The consultant submitted the document on
July 15, 1996. A meeting was scheduled for July 31 between BLM
and the consultant to review the comments. During the meeting
an additional 3 weeks were granted so the review could be
completed.
With the extension, BLM comments were due on August 22,
1996. They were submitted on August 27. The consultant made the
requested changes and submitted the third preliminary draft on
September 17, 1996. Following minor changes and BLM approval,
the draft EIS was submitted to the public for comment on
October 10, 1996.
Public Comment
Two public meetings were held, one in Price, Utah and the
other in Emery, Utah. The vast majority of public comment
favored the project. During the Price public meeting, the
personal attitudes of two BLM Price office field experts came
out once again. About half way through the meeting, following
several comments favorable to our proposed development, the two
stormed out of the meeting. They seemed to be outraged at the
situation.
Revisions Following Public Comment
The public comment period ended on January 2, 1997. Based
on public and governmental comment, a new alternative was
proposed by BLM in consultation with Utah DWR. The concept of
protecting deer and elk Security Areas was discarded in favor
of a new concept: protecting drainage corridors, which were now
believed to be even more important than the Security Areas, and
requiring other significant mitigation for the benefit of deer
and elk. The new alternative called for us to cancel plans to
develop over 8,000 acres of leases we had purchased from BLM
and the State of Utah in critical elk habitat (without
compensation), agree not to conduct drilling or construction
operations during the winter on critical and high value big
game winter range (regardless of property ownership or lease
rights), pay $1,250 per Federal well drilled on critical big
game winter range into a mitigation fund, and agree to special
site location standards within drainage corridors which BLM and
DWR had developed (potentially requiring well location contrary
to BLM regulation). Individuals inside the BLM used the words
extortion and blackmail, perhaps jokingly, to describe the
situation.
It is interesting to see how NEPA, in some situations, has
replaced formal rulemaking under the Administrative Procedure
Act. We were involved while the concessions were being
developed, and we protested to some. But at that point, we had
spent so much on the EIS, we were processing huge consultant
bills each month, we saw the value of our initial investment in
the field dwindling simply as a function of time, and we still
had no idea when the process might end. We were in no position
to raise legal arguments that would further delay the process.
Again, timely oversight by an objective third party with
authority would have helped.
We agreed to the concessions and the process began again.
Information was gathered on the new alternative and a new
impacts analysis was prepared. BLM field experts in Price
called for a new draft to be issued for public comment,
suggesting the new alternative would trigger a supplemental
draft EIS. As with similar suggestions, this caused us to spend
considerable time, energy and expense countering it. The law,
regulations and CEQ guidance was clear on the matter. But it
was difficult determining who we needed to convince. No
procedure was in place. We had long since learned that arguing
with the Price office would be a waste of time. While the EIS
team leader wanted to do the right thing, he was without
authority to render a final decision. We went to the BLM State
office, which intervened.
Had the Price office succeeded once again in its delay
tactics, the EIS may be ongoing yet today. Fortunately, the
Final EIS was issued and the Record of Decision was signed in
May, 1997.
Appeal
In spite of our concessions to protect deer and elk, the
ROD was appealed by an individual living over 100 miles away in
Moab, Utah, citing concerns about potential impacts to deer and
elk. The IBLA denied his request for stay, so we are able to
move forward while the appeal is pending.
Post-EIS
Although it was closely involved throughout the EIS
process, over the months following execution of the ROD, Utah
DWR expressed concerns that BLM did not require us to pay the
same mitigation fee, $1,250 per well, for wells on high value
winter range. Meetings with BLM and the State ended without
resolving the matter to the DWR's satisfaction. After we
refused to pay the additional moneys for high value winter
range, the BLM wildlife biologist guaranteed me that our
permits would be appealed as a result of our refusal.
During the same timeframe, I heard comments through the
grape vine that BLM agents from Price had said comments to the
effect of ``They may have made it through the EIS, but wait
till you see how long its takes to get permits approved.''
Over 9 months have elapsed since the ROD was signed. As of
today, March 11, 1998, we still have not received a single
authorization to conduct work on BLM land. We have submitted
approximately 54 Applications for Permit to Drill, and
approximately 5 right-of-way applications.
Delays since the EIS have not all been caused by the BLM,
we have also been at fault. We have been learning the Federal
permitting process, we have had errors on some reports
submitted to BLM and have had other problems. We definitely
share some of the blame.
A portion of the blame also lies with BLM. The same
individuals who indicated they would block our development and
who almost made believers out of us, are now working on the
permitting process. The ROD was a bitter pill for them to
swallow. Their dwindling opposition combined with their
inexperience with the oil and gas permitting process had
contributed to the delays. I hope we are getting on the right
track.
Contrast with other BLM Offices
In contrast with the EIS experience described above, our
experience with the Rock Springs BLM offices is very
encouraging. During very preliminary discussions that could
lead to the NEPA process; resource specialists from every
discipline attended meetings, acted professionally, offered
input on what we should do to make the process go smoother, and
generally tried to be helpful. I believe the NEPA process will
be very different while working with the Rock Springs office.
Where the right people are involved, the current system works
well. But forcing companies to play Russian roulette is
unacceptable.
Suggestions
1. Only Minor Changes. We are all stewards of the
environment, oil and gas companies included. It is my
experience that industry wants to do the right thing. When used
properly, NEPA is a valuable planning tool. We should be
careful not to overreact based on situation such as ours.
2. Oversight. The NEPA can be very fluid. It is critical to
gain control of the process before it begins and to maintain
tight control throughout the process. By allowing discretion
for field-level agency experts to make decisions on a case-by-
case basis, decisions may be unduly influenced by personal
agendas. Timely objective oversight to agency discretion is
necessary throughout the process and at the end of each
critical step to ensure accountability. The oversight could be
through the legislative body, reimbursed by income derived from
the project.
3. Reimbursement. Agencies rely heavily on the third party
process, meaning companies must pay the NEPA bill. Everyone
benefits from the process: the public at large is ensured of
environmentally conscious decisionmaking, agencies acquire
additional information to assist their to efforts to do their
job, and the project proponent can go forward in a prudent
fashion. If the project is successful and the taxpayers benefit
from Federal royalties, the project proponent should be
reimbursed for the NEPA expense.
4. Maximum Time Limits. The process currently has minimum
timeframes; ie, no decision can be made until a certain number
of days has passed. There are no maximum timeframes.
Particularly where government officials act like environmental
groups opposing a project, maximum timeframes are essential.
For example, the statute could be revised to state public
scoping must last at least 30 days, and comments received after
the 30th day will not be considered. It would also help to
state that no EIS would take longer than 18 months to complete.
In the event it is not completed on time, the proposed action
would be deemed approved.
5. Follow-up Analysis. Many assumptions are made during
impacts analysis. Seldom are follow-up studies performed to
determine whether the projected impacts actually occur as
predicted. Sometimes assumptions are made simply because they
have been used as a basis for previous EIS analysis. For all
the time and expense that is going into NEPA processes, we are
not learning enough. Follow-up studies should be performed,
again through dedicated accounts set up from Federal income
generated through the project.
6. Restrict Governmental Comment to Agencies Involved.
Governmental agencies that are not actively involved in the EIS
process should be precluded from commenting on the EIS.
Comments signed by governmental officials carry a great deal of
weight and create stronger impressions than those signed by
average citizens. Where governmental comments are negative, the
taint can be very damaging. They must be involved to be fully
up to speed on a situation, which is essential to submitting
quality comments. It is much easier to sit back and criticize
than it is to get involved and structure workable solutions.
EPA was not involved in our EIS, but it submitted a comment
letter anyway. The comment read as if it had been prepared by
an environmental group, and it included issues beyond EPA's
area of expertise. This type of activism must stop.
7. Prevent Automatic Stay Pending Appeal. We are concerned
that DOI, IBLA or BLM may approve an automatic stay provision
in its appeal procedure, as currently proposed by IBLA. If this
is approved, we would still be delayed as if the EIS were never
completed. Anyone with 32 cents could block development
indefinitely without showing first that they were likely to
succeed on the merits of the appeal. It may be appropriate to
stop such efforts through legislation.
8. Increase Budget. Part of the problems we have seen are
the result of having too few people with too little time to
work on projects like our EIS. Budget increases may help,
particularly where the funds are dedicated for problem areas.
------
Statement of Dan Chu, Wyoming Wildlife Federation, Executive Director
Good Afternoon, Chairman and members of the House Resource
Committee, my name is Dan Chu and I am the Executive Director
for the Wyoming Wildlife Federation (WWF). WWF is a non profit
conservation organization composed of over 3000 members who are
united by a deep commitment to the protection of wildlife
habitat, the perpetuation of quality hunting and fishing, and
the protection of their right to use and enjoy public lands.
Today, I will provide our perspective on the function and
effectiveness of the National Environmental Policy Act (NEPA).
NEPA was established in 1970 to guide Federal agencies in their
efforts to manage for sustainable development and to allow the
public to be involved in the management of their lands and
resources. Our members directly benefit from NEPA because it
provides a forum for local people and local interests to be
considered in Federal actions on public lands. WWF educates and
mobilizes citizens to be involved in decisions that affect
their public land throughout Wyoming. We view NEPA as providing
Federal agencies a formal process for responding to the public
and determining if an action is truly in the public's interest.
Specifically, the central mandate of NEPA is ``The Congress
. . . declares that it is the continuing policy of the Federal
Government, in cooperation with state and local governments,
and other concerned public and private organizations, to use
all practicable means and measures, including financial and
technical assistance . . . to create and maintain conditions
under which man and nature can exist in productive harmony, and
fulfill the social, economic, and other requirements of present
and future generations of Americans.''
WWF believes that the purposes of NEPA is to establish the
policy that all Federal agencies must:
(1) Be responsible to future generations
(2) Provide environmental equity for all Americans
(3) Allow for the beneficial use of the environment
without undue degradation
(4) Encourage historical, cultural, and biological
diversity, and individual liberty
(5) Promote widespread prosperity for all Americans
(6) Manage for the conservation and prudent use of our
natural resources
(7) Consider and incorporate public comments and
interests
NEPA does not have decision-making authority; rather its
function is to provide a framework for disclosure and sound
planning. NEPA requires that Federal agencies provide the
public with full and adequate disclosure of impacts and effects
of development. Such effects include ecological, aesthetic,
historic, cultural, economic or health. To determine the true
impacts of development an adequate cumulative impacts analysis
must be conducted. Ultimately, a good cumulative impacts
analysis can ensure; the orderly development of our public
natural resources in a way that is compatible with other
resource users under a multiple use management mandate.
Although we believe that the NEPA is an example of great
foresight and responsibility from Congress in 1970, we also
feel that the implementation of this Act can be improved and
streamlined. In fact, the topic of improving and streamlining
the implementation of NEPA was a major topic of discussion for
the Green River Basin Advisory Committee (GRBAC).
In 1996-97, I served as a member of this Federal Advisory
Council. In response to a growing number of concerns and
appeals surrounding the cumulative impacts from proposed oil
and gas development on Federal public lands in Wyoming and
Colorado, both oil and gas companies and environmental
organizations asked Secretary of the Interior, Bruce Babbitt to
initiate a formal process to help resolve conflicts. Secretary
Babbitt formed the Green River Basin Advisory Committee (GRBAC)
in February 1996 under the Federal Advisory Council Act. The
GRBAC was given a one-year charter to ensure the reasonable
development of natural gas and oil while protecting
environmental and other resource values on public lands in
Southwest Wyoming and Northwest Colorado. Secretary Babbitt, in
cooperation with the states, selected 16 members from the oil
and gas industry, conservation groups, State Game and Fish,
county commissioners, and state government officials. The GRBAC
was a consensus group and any recommendations forwarded to the
Secretary received the wholehearted support of ALL of the GRBAC
members. This was truly a remarkable effort in true consensus
building, bringing together a wide variety of interests and
people to reach agreement on those actions that the Department
of Interior could take to resolve existing resource conflicts
on our public lands.
One of the issues we agreed to discuss was the use of the
National Environmental Policy Act (NEPA). After much discussion
we reached consensus on some recommendations we felt could
improve the implementation of NEPA in the process of oil and
gas development.
I would like to briefly point out some of the
recommendations the GRBAC reached full consensus on. For more
detail, please refer to the GRBAC's Final Report to the
Secretary of the Interior, February 3, 1997 NEPA Streamlining
Recommendations.
One of the common issues of concern we discussed was the
lack of interagency coordination in the NEPA process. We
recommended ``improving coordination and communication among
project proponents, affected agencies and stakeholders to
reduce adverse comments and time required.'' Specifically we
all saw a need for Federal agencies to improve interagency
coordination prior to and during the NEPA process. We all felt
that there have been too many instances where one particular
development project has resulted in two or more NEPA documents
initiated by different Federal agencies. Such a lack of
coordination results in unnecessary delays and an inadequate
cumulative impacts analysis.
One complaint we hear from industry is that the NEPA
process results in significant delays. Many of these delays
result from a lack of accurate field data detailing the status
of existing wildlife and plant communities. We also recognized
that industry and environmentalists alike are frustrated with
the incompatibility of various Federal agency data bases, often
precluding the sharing of key biological data.
Another GRBAC consensus recommendation addressed how to
improve the format and content of the NEPA document while
reducing its size. One way is to ``eliminate duplication in
data requirements as well as consolidating and accessing
existing data bases.'' To this end, WWF recommends that
Congress provide additional funding to Federal agencies with
the purpose of consolidating various data bases to provide
accurate and comprehensive biological data bases.
``lmpact Analysis should be based on scientific and
realistic Impact assessment, not speculations. This GRBAC
recommendation states that a common need of industry,
environmentalists and management agencies is that of having a
reliable and complete biological data base. Whereas industry
strongly believes that it is not their responsibility to
collect baseline data, Federal agencies have a legal and moral
responsibility to the public to conduct a cumulative effect
analysis and minimize impacts of the proposed development on
other users and resources. We believe the fundamental problem
resides in the inadequate funding of data collection and
habitat protection by Congress. For this reason, WWF supports
the Teaming With Wildlife Initiative (TWW). We believe that TWW
could bring sorely needed funds to state Game and Fish agencies
to conduct surveys and compile the necessary information needed
in many NEPA documents. Such work would help fill important
baseline data gaps as well as enhance wildlife habitat on
public lands. Additionally, such preventative monitoring and
mitigation could decrease NEPA documentation time and minimize
future impacts from development.
In conclusion, WWF applauds the great foresight and wisdom
of Congress when they established the National Environmental
Policy Act in 1970. Consolidating Federal agency data bases,
improving interagency coordination, investing in filling
crucial biological and cultural data gaps, and facilitating
early communication between all resource user interest groups
can enhance the implementation of NEPA.
Thank you for this opportunity to comment.
------
Statement of Lynton K. Caldwell, Professor of Public and Environmental
Affairs, Indiana University and Staff Consultant to the Senate
Committee on Interior and Insular Affairs on a National Policy for the
Environment, 1968-1970
Few statutes of the United States are intrinsically more
important and less understood than is the National
Environmental Policy Act of 1969. This comprehensive
legislation, the first of its kind to be adopted by any
national government, and now widely emulated throughout the
world, has achieved notable results, yet its basic intent has
yet to be fully achieved. Its purpose and declared principles
have not yet been thoroughly internalized in the assumptions
and practices of American government. Nevertheless there
appears to be a growing consensus among the American people
that environmental quality is an enduring public value, and
that development of the economy does not require a trade-off
between environmental quality and economic well-being.
Voluntary compliance with NEPA principles may one day become
standard policy and procedure for government and business; but
meanwhile it is in the interest of the Congress and the Nation
to understand the historical developments that led to NEPA and
the subsequent course of its implementation.
The legislative history of NEPA and the policy concepts it
declares are more extensive and accessible than some of its
critics recognize. Treating NEPA as if it were a special
application of the Administrative Procedures Act of 1946
misreads its principal purpose and misdirects criticism. NEPA
declares public values and directs policy; but it is not
``regulatory'' in the ordinary sense. A decade of thought,
advocacy, and negotiation in and out of Congress preceded the
legislation of 1969. Dissatisfaction with NEPA and its
implementing institution--the Council on Environmental
Quality--should not be directed against this innovative and
well-considered statute, but rather toward failure to
understand its purpose, to reinforce its administration, or to
support its intent.
Through the judicially enforceable process of impact
analysis, NEPA has significantly modified the environmental
behavior of Federal agencies, and indirectly of State and local
governments and private undertakings. Relative to many other
statutory policies NEPA must be accounted an important success.
But implementation of the substantive principles of national
policy declared in NEPA requires a degree of political will,
not yet evident in the Congress or the White House. That the
American people clearly supports the purpose of NEPA is evident
in repeated polls of public opinion. But implementation of NEPA
has not been audibly demanded by a public at-large which has
received little help in understanding what must be done to
achieve objectives of which they approve.
Three decades since 1969 is a very short time for a new
aspect of public policy--the environment--to attain the
importance and priority accorded such century-old concerns as
taxation, defense, education, civil liberties, and the economy.
The goals declared in NEPA are as valid today as they were in
1969. Indeed perhaps more so as the Earth and its biosphere are
stressed by human demands to a degree that has no precedent.
(Note the 1993 World Scientists Warning to Humanity) But
``environment'' in its full dimensions is not easily
comprehended. Human perceptions are culturally and physically
limited, but science has been extending environmental horizons
from the cosmic to the microcosmic. Even so, the word
``environment'' does not yet carry to most people the scope,
complexity, or dynamic of its true dimensions.
If NEPA continues to be interpreted narrowly and
exclusively by the courts, more compelling legislation may be
required. A statutory or constitutional amendment may be
necessary to give its substantive intent, operational legal
status. Some defenders of NEPA fear that opening the statute to
textual amendment might result in its being weakened as, for
example, through statutory exclusions limiting class action
suits based on NEPA, or in limiting its applicability to
Federal action having an environmental impact beyond U.S.
territorial limits. Its text unchanged, NEPA has already in
effect been amended to exclude its application to major
environment-affecting projects popular with the Congress, (e.g.
the Alaska oil pipeline). As of 1997 the U.S. Code listed at
least 28 exceptions to the application of NEPA. Some were for
clarification, however, and did not significantly affect the
substance of the Act. An amendment to the United States
Constitution could strengthen the applicability of NEPA's
substantive provisions to judicial review and executive
implementation. At present this possibility appears to lack
feasibility, but merits consideration as a future option.
Meanwhile, for the NEPA intent to be more fully achieved two
developments will be necessary:
First is greatly increased popular comprehension of the
purpose and principles of environmental policy as expressed in
NEPA--especially by conservation and environmental groups,
civic organizations, religious denominations, and by political
parties at the grass roots, along with recognition--now
beginning to appear in the world of business--that economic and
environmental objectives need not be incompatible. NEPA
principles, if rationally applied, would help sustain the
future health of both the economy and the environment.
Second is appreciation by the Congress, the executive
branch, the courts, and the news media of the political
responsibilities and institutional arrangements necessary to
fulfill the NEPA mandate. More visible commitments in the White
House and at the top policy levels of the Federal agencies, and
especially in the Congress are needed. As long as candidates
for Federal office are dependent on financing from sources
whose purposes could result in destructive exploitation of the
environment, support for NEPA in the Congress and the White
House is unlikely to be no more than symbolic, and seldom
invoked.
NEPA, however, contains means to achieve its purpose.
Institutional arrangements for coordination of policies for
natural resources and, by implication, the environment,
underwent extensive consultations for at least a decade
preceding NEPA, within and between both houses of Congress,
with the Federal agencies, and with non-governmental
representatives of public interests. NEPA incorporated most of
the provisions upon which general agreement had been reached.
Declaration of National Policy
The most important and least appreciated provision of NEPA
is the congressional declaration of national policy under Title
I, Section 101:
that it is the continuing policy of the Federal Government, in
cooperation with State and local governments, and other
concerned public and private organizations, to use all
practicable means and measures, including financial and
technical assistance, in a manner calculated to foster and
promote the general welfare, to create and maintain conditions
under which man and nature can exist in productive harmony, and
fulfill the social, economic, and other requirements of present
and future generations of Americans.
Seven specific aspects of policy are enumerated, and while
necessarily stated in general terms, they are hardly vague in purpose.
Section 101b states that:
in order to carry out the policy set forth in this Act, it is
the continuing responsibility of the Federal Government to use
all practicable means, consistent with other essential
considerations of national policy, to improve and coordinate
Federal plans, functions, programs, and resources to the end
that the Nation may
(1) fulfill the responsibilities of each generation as trustee
of the environment for succeeding generations;
(2) assure for all Americans safe, healthful, productive, and
aesthetically and culturally pleasing surroundings;
(3) attain the widest range of beneficial uses of the
environment without degradation, risk to health or safety, or
other undesirable and unintended consequences;
(4) preserve important historic, cultural, and natural aspects
of our national heritage, and maintain, wherever possible, an
environment which supports diversity, and variety of individual
choice;
(5) achieve a balance between population and resource use which
will permit high standards of living and a wide sharing of
life's amenities; and
(6) enhance the quality of renewable resources and approach the
maximum attainable recycling of depletable resources.
In addition the Congress recognized that ``each person should enjoy
a healthful environment and that each person has a responsibility to
contribute to the preservation and enhancement of the environment.''
The declaration clearly implies that economic and environmental
values are or should be compatible. A key to understanding NEPA may be
found in the phrase ``. . . to create and maintain conditions under
which man and nature can exist in productive harmony, and fulfill the
social, economic, and other requirements of present and future
generations of Americans.'' This statement has often been interpreted
to require a balancing of equities, primarily economic and
environmental. But the intent of NEPA would not be achieved by off-
setting (but still retaining) an economic ``bad'' with an environmental
``good,'' as mitigation measures may attempt. More consistent with the
spirit of the Act would be a synthesis in which ``productive harmony''
is attained and transgenerational equity is protected.
Beneath the language of the Declaration there are fundamental
questions of jurisprudence and constitutional responsibility that,
bearing upon the implementation of NEPA, have not generally been
addressed Does the Declaration establish a policy by law? If the
statute, in fact, is a declaration of law as well as policy what then
are the responsibilities of the President under Article II of the
Constitution that ``he shall take care that the laws be faithfully
executed''? And what are the responsibilities of the Congress to see
that a policy declared by a Congress and not repealed, is not sabotaged
or neglected in the Executive branch or by its own committees?
Critics of NEPA have found its substantive provisions
nonjusticiable, and by implication not positive law. The courts have
refrained generally from overturning administrative decisions that
could be interpreted as incompatible with the substantive provisions of
NEPA. However, in the case of Calvert Cliffs Coordinating Committee v.
Atomic Energy Commission, Judge Skelly Wright of the U.S. Circuit Court
of Appeals of the District of Columbia declared that:
The reviewing courts probably cannot reverse a substantive
decision on its merits, under Section 101, unless it can be
shown that the actual balance of costs and benefits that was
struck was arbitrary or clearly gave insufficient weight to
environmental values. But if the decision was reached
procedurally without individualized consideration and balancing
of environmental factors, conducted fully and in good faith, it
is the responsibility of the courts to reverse.
The generally recessive posture of the courts on the policy
provisions of NEPA contrasts markedly with their activist policymaking
in constitutional civil and property rights cases. In these cases
Federal judges have not hesitated to assert sweeping jurisdiction over
all levels of government in which official action or inaction was found
to be at variance with judicial opinion. A plausible explanation for
this contrast is the absence of any direct provision in the
Constitution of the United States for environmental protection, in
contrast to explicit provisions for property rights and civil rights in
the Fifth and Fourteenth Amendments. Where the Congress has mandated or
prohibited specific actions affecting air and water pollution or
endangered species, and provided penalties for violations, the courts
have reviewed and enforced if no infringement of constitutional rights
is found. Presumably they would do so for any of NEPA's substantive
policy mandates for which Congress provided specific procedures and
penalties not subject to judicial reversal as contrary to the
Constitution.
An environmental protection amendment to the Constitution might
enable the courts to clarify equities and diminish uncertainties
between private rights and public interests in the environment. It
could reduce litigation in environmental affairs and might prevent some
arbitrary and unpredictable policymaking on environmental issues by the
Federal courts. Section 101 of NEPA establishes the principles and
goals of environmental policy and is, in essence, a declaration of
values. It is difficult to adjudicate values, but legislation
implementing principles expressed in NEPA and applied to specific
tangible policies has been reviewed and upheld in the courts. The
Historic Preservation Act (Public Law 89-665, Oct. 15, 1966) and the
Endangered Species Act (Public Law 93-205, Dec. 28, 1973) are examples.
Substantive mandates in these and other environmental statutes are or
could be reinforced by the substantive and procedural provisions of
NEPA.
Beyond the judiciary there is another recourse to enforcement of
the principles of NEPA--in the constitutional obligation of the
President ``to take care that the laws be faithfully executed.'' The
President rarely needs a court opinion to use residual executive power
to apply the law; the presidency possesses broad executive discretion
over implementation of the laws by the Federal agencies. A President
whose priorities coincided with NEPA's principles, absent blocking in
the Congress or the courts, could by executive action go a long way
toward fulfilling the NEPA mandates.
The Case For a National Policy
From the viewpoint of historical constitutional conservatism,
environment in the broad sense was not a comprehensible subject for
public policy--at least for national policy. Strict constitutional
constructionist Thomas Jefferson did not even believe that highway
construction was an appropriate function of the Federal Government. For
environmental nuisances, such as air or water pollution, common law
remedies were available under state police powers, and prior to the
1960's were widely regarded as local issues.
Emergence of environment as a public and national issue followed
from profound changes in the population and economy of the United
States in the course of the 20th century. These changes were
accompanied by unprecedented growth of scientific knowledge and
technology. Progress of this new industrial society increasingly
encountered and created environmental problems which neither local
government or the market economy could cope. Quality of life values in
health, amenities, and opportunities were being lost or threatened and
the causes transcended artificial political jurisdictions.
Only the Federal Government had the geographic scope and
institutional structure able to deal with the growing array of
interrelating problems now called ``environmental.'' These problems of
air, water, resource conservation and the biosphere were soon seen to
be transnational, but national government was the only available
institution sufficiently inclusive and authoritative to deal with them.
International cooperation depended upon the ability and willingness of
national governments to address common regional and global
environmental problems and so by the mid 20th century, environment
began to emerge as a new focus for public policy.
Broad statements of policy and principle that are not perceived to
affect personal interests or property rights seldom arouse much public
concern or response. Issues that do elicit popular concern almost
always affect the present and personal advantages or apprehensions of
people. Attitudes relating to the environment in modern American
society have been largely issue-specific and subjective, as in the
NIMBY (Not in My Back Yard) syndrome. But effective response to
circumstances in the larger societal and biospheric environments
necessarily must be collective, with whole communities or an organized
``critical mass'' of the society activated. Stratospheric ozone
depletion, global climate change or tropical deforestation are hardly
neighborhood or personal issues which people might feel that their
actions could influence. And while non-governmental organizations may
help in many ways to assist environmental protection, the ultimate
agent of public interests affecting all of the United States is the
Federal Government. State and county boundaries are environmentally
artificial, corresponding neither to ecosystems nor bioregions, and
seldom to economic activities that are increasingly interstate,
nationwide, and transnational in scope.
NEPA, supplementing the legislative powers of the Federal
Government over interstate commerce, navigable waters, and public
lands, creates an obligation to apply its provisions where relevant.
Thus applications for Federal permits, licenses, purchases,
concessions, and grants may require the preparation of environmental
impact assessments required by NEPA. For other environmental impacting
policies the President, through Executive Orders, may instruct the
agencies in the performance of their functions, as President Carter did
in giving legal status to the NEPA Regulations of the CEQ, (EO11991, 24
May 1977) and, paralleling NEPA in Federal activities abroad, in
EO12114, 4 January 1979.
Conclusion
NEPA is potentially a powerful statute, well integrated, internally
consistent, and flexible, even though not entirely clear on some points
of law which have nevertheless been clarified by interpretation, as in
the Regulations issued by the CEQ under Executive Order 11991 of 1977.
That it has made a significant difference in the United States and has
influenced governments abroad is hardly debatable. NEPA was not a
sudden inspiration, nor was it put over on an unsuspecting Congress and
the public by an environmental lobby. Its purpose was never the writing
of impact statements; but this action-forcing procedure has been a
great inducement to ecological rationality in Federal actions which
traditionally had largely ignored environmental consequences.
No technical fix nor administrative reorganization will achieve the
NEPA intent. To implement NEPA as intended requires a president
committed to its objectives and using his appointive, budgetary and
leadership powers to this end. It requires a judiciary that recognizes
the legislative history and substantive intent of the statute and does
not defeat the purpose of successive Congresses through narrow
legalistic interpretations. It requires from Members of the Congress
recognition of the legislative history and intent of NEPA and of the
efforts of successive Congresses since 1959 to respond to concerns of
the American people for a sustainable and harmonious environmental
future.
Legislative priorities may change with voting majorities (even by
one vote) in successive Congresses. But the printed record of the
history of NEPA should make clear the intentions of its architects in
the 91st and preceding Congresses. Nevertheless many critics of NEPA
appear to have interpreted it from subjective premises without inquiry
into the legislative history of the Act or into the assumptions and
expectations of the persons responsible for its language and content.
These critics have missed the implications of NEPA's broad and basic
principles and goals. It sets an agenda to be implemented through
legislative and administrative action. From one perspective NEPA may be
seen as the capstone of national environmental policy; more importantly
it should be viewed as a foundation for the future.
______
Statement of Lillian C. Borrone, Director, Port Commerce Department,
The Port Authority of New York & New Jersey
Dear Congressmen Saxton and Pallone:
The occasion of the House Resources Committee hearing on
matters pertaining to the National Environmental Policy Act
prompts me to share some thoughts on Federal management of
environmental policy as it regards dredging activities in the
Port of New York-New Jersey. As you know the Port was in crisis
through the first 6 years of the 1990's. Ships had trouble
entering marine terminal areas; cargo was lost to the
competition in Canada. However, the tide has changed. The Port
community became energized as did the New Jersey and New York
congressional delegations. And initiatives were taken by the
Governors of New York and New Jersey and the Clinton
Administration, especially with respect to coordination among
the Federal regulatory agencies.
The Port of New York-New Jersey is the largest on the East
Coast of the American continent, an international gateway of
national economic significance and a major economic engine for
the States of New York and New Jersey. The Port is dependent on
channel, berth and anchorage dredging to maintain adequate
depths for the many thousands of ships that call each year.
Approximately 4 million cubic yards of sand and mud are dredged
annually. In addition ours is a region with superb, coastal
natural resources that are on display in your congressional
districts and in the Port itself. Perhaps not surprisingly the
region has been witness to especially vigorous environmental
regulation--and litigation--of water-based activities including
navigational dredging. That intense interest is prompted in
part by sediment contamination that is the result of upstream
sources of pollution and the region's industrial heritage. It
raised legitimate questions within government and attracted
well-intentioned--sometimes constructive--critics of dredging
practices. All those ingredients combined to produce a crisis
of the like the Port had not seen in my memory. For the
purposes of this letter I would like to focus on the Federal
regulatory function, complicated as it was by sediment
contamination.
The Army Corps of Engineers is the Federal Government's
permitting agency for dredging activities. However the natural
resource agencies--EPA, NOAA's National Marine Fisheries
Service and Interior's Fish & Wildlife Service--also play
influential parts. When the Federal process was not functioning
well often times the agencies were conducting their respective
roles less in ways that facilitated decision-making and more as
gatekeepers. Each had their own demands and seemed to have
little regard for the passing of time and the practical
implications of regulatory delay on the Port. Typically
cautious and methodical in the perfommance of their duties,
they became especially so with the knowable that some
environmental orations were prepared to litigate.
The Port's only sediment disposal location at that time was
the EPA-regulated ocean Mud Dump site. As a result, there were
no available alternative disposal areas and sediments were
subjected to the most rigorous testing requirements under the
law. Revised and tougher Federal testing protocols were put in
place at the beginning of the decade and certain of those were
never fully accepted in the Port community as scientifically
supportable. The presence of dioxin and other contaminants in
sediments, especially in the busiest part of the Port where
channels and berths were overdue for dredging, produced
frustrating and not always clear results on which the
regulators were to base their decisions. A nearly three-year
period of regulatory indecision and, eventually, litigation is
documented in the attached. Ultimately, the Federal and state
permitting agencies and the court allowed dredging to go
forward, notwithstanding a lawsuit, the effects of which are
still felt today. And while the permit was issued and the
channel was dredged in the summer of 1993 Federal permit
problems persisted. Challenges to dredging activities in New
York Harbor continued to stymie Federal channel dredging well
into 1996.
The positive news out of all of this is that steps were
taken to address the various problems in the States and in
Washington, particularly with respect to Federal regulation.
There were two developments of special note regarding the
latter. I will touch briefly on the first and then for the
purposes of your Committee hearing focus on the second,
involving the work of the Council on Environmental Quality
under NEPA.
Importantly, dredging came to be understood as a
transportation matter with some attendant environmental issues,
and not vice versa. In 1993, then Transportation Secretary
Federico Pena recognized that major channel dredging projects
were at risk and convened the Interagency Working Group on the
Dredging Process whose members were the regulatory agencies and
the Maritime Administration. Late in 1994, its report, The
Dredging Process in the US: An Action Plan for Improvement, was
issued and later forwarded to the White House. It included
recommendations that focused on ways the permit process could
be expedited through greater cooperation among the regulatory
agencies. Today, the Corps of Engineers and EPA co-chair the
National Dredging Team that, along with Regional Dredging Teams
in ports around the country, is working to improve the way the
dredging permit process is implemented.
A second and significant step to improve regulatory
decision-making and overcome major hurdles to dredging was the
involvement of the Council on Environmental Quality.
Administration officials came to understand that certain
persistent issues caused great uncertainty in what should be
predictable and routine dredging activities. It became apparent
that the Port would continue to lose intermodal cargo and jobs
to Canadian ports--at a rate of roughly 100,000 containers a
year--if the Federal channels were not able to be dredged
promptly. Already large ships that routinely made New York
Harbor their first call in North America were diverted to
Halifax to lighten their load of containers before sailing to
our Port.
After spending over a year consulting with many persons
representing the States, the Port, marine terminal operators,
labor, and environmental organizations, CEQ and the Federal
agencies developed a strategy designed to address specific
needs of the Port, including the dilemma over sediment
disposal; the immediate need to clear Federal channels and
berths of accumulated silts; and the long term question of the
future of the Port channel structure. On July 24, 1996 Vice
President Gore announced a three-pronged strategy as outlined
in a letter to members of the Port's congressional delegation.
It was a strategy, the components of which were not pleasing to
all interests, that served to get the Port past seemingly
intractable issues.
First, in coordination with the States, the controversial
ocean disposal site--the Mud Dump--was to be closed in
September of the following year to all but Category 1 sediments
(the cleanest of 3 categories as determined through sediment
testing). The nearly century-old site was to be capped. Second,
prompt steps were to be taken to remove ``immediate obstacles
to dredging the Port,'' with a focus on the permit process, and
the Corps would accomplish maintenance dredging for ``10 high
priority'' Federal channel projects by the end of 1997. Those
were selected in cooperation with the States and the Port
Authority. Third, the Corps would undertake an ``expedited''
feasibility study of alternatives for a 50-foot deep Port. In
addition the Maritime Administration was to recommend any
additional measures needed to ``enhance the international
competitiveness'' of East Coast ports. Steps also were to be
taken to address the quality of sediments in the Port. The
letter, signed by the Secretary of the Army, the Secretary of
Transportation, and the Administrator of EPA, is attached.
Significantly, the White House and agencies did not simply
declare victory and move on to another crisis in another part
of the country. Implementation of the July 1996 strategy was
carefully monitored and managed by CEQ, Corps and EPA
headquarters staff. Not unexpectedly, problems with some
permits and other issues did appear along the way. Those were
managed with great diligence and conscientiousness and
interested parties at all levels were consulted and heard. In
our experience the coordination role played by CEQ as
contemplated in NEPA was essential to our success by ensuring
that conflicts and obstacles among agencies are addressed by
the Executive Office of the President. As a result we were able
to overcome years of gridlock--or mudlock--and move forward to
protect the future of the Port.
The Port is not out of the woods yet. We are working with
the States of New York and New Jersey and the Corps of
Engineers to implement a long term and economic dredged
sediment disposal strategy. Sediment contamination in some
parts of the Port continues to pose permitting and disposal
issues. Meanwhile, essential dredging has occurred or is
planned, construction should start on a major channel deepening
project this September, and funding for the 50-foot feasibility
study is on schedule. Such progress is made possible by long
term commitments on the part of everyone involved. At the
Federal level, the Council on Environmental Quality, Corps of
Engineers, and EPA officials continue to show that commitment.
And with the strong support of our Governors the Port's future
looks much brighter than it did just a few years ago.
------
Statement of Carole Browner, Administrator, U.S. Environmental
Protection Agency, Federico F. Pena, Secretary, U.S. Department of
Transportation and Togo D. West, Jr., Secretary, U.S. Department of the
Army
Dear Congressman Pallone:
Your leadership and support have been essential in
advancing our shared goals of protecting the ocean environment,
while ensuring the competitiveness of the Port of New York and
New Jersey and the economic health of the region. We are
writing to announce our commitment to several substantial new
steps to provide additional Administration support for those
goals. We believe the three-point plan outlined below
demonstrates this Administration's commitment to the continued
growth and vitality of the port, to protective regulation of
ocean disposal, and to a stronger partnership with the states
in protecting regional commerce and the marine environment.
1. We will close the Mud Dump Site by September 1, 1997
After years of contention, this Administration is prepared
to help resolve the controversy over disposal at the Mud Dump
Site (MDS) off the New Jersey coast.
Environmental, tourism, fishing, and other community groups
have long contended that the MDS should be closed immediately.
These views reflect the important environmental values that New
Jersey's communities identify with their coastal environment.
Community concerns have been heightened by the unhappy history
of other environmental threats that these communities have had
to endure--ranging from oil spills to the littering of
shorelines with medical waste. This history warrants
sensitivity to concerns about the MDS, including concerns about
continued use of the site for so-called ``category 2''
material. When these concerns are coupled with the limited
category 2 disposal capacity we expect the site to provide, we
must conclude that long-term use of this site for disposal
activity is not realistic.
Accordingly, the Environmental Protection Agency (EPA) will
immediately begin the administrative process for closure of the
MDS by September 1, 1997. The proposed closure shall be
finalized no later than that date. Post-closure use of the site
would be limited, consistent with the management standards in
40 C.F.R. Section 228.11(c). Simultaneous with closure of the
MDS, the site and surrounding areas that have been used
historically as disposal sites for contaminated material will
be redesignated under 40 C.F.R. Section 228 as the Historic
Area Remediation Site. This designation will include a proposal
that the site be managed to reduce impacts at the site to
acceptable levels (in accordance with 40 C.F.R. Section
228.11(c)). The Historic Area Remediation Site will be
remediated with uncontaminated dredged material (i.e. dredged
material that meets current Category I standards and will not
cause significant undesirable effects including through
bioaccumulation). Our ongoing environmental assessment
activities at the site will be modified to reflect these new
commitments. We also will seek to reinforce this approach in
appropriate legislation.
Although we recognize that eventual closure of the MDS,
followed by remediation, is appropriate, immediate closure
could jeopardize the Port, which may need short-term use of the
site to dispose of category 2 material. To strike the
appropriate balance, use of the site for category 2 material
will have to be supported with certifications by the permit
applicant, and a finding by the Corps of Engineers that: 1) the
affected states or ports were asked to provide alternative
sites for disposal of the material identified by the permit,
and that the states or ports failed to provide a reasonable
alternative site; and 2) the disposal of category 2 material at
the MDS will not increase the elevation at the MDS higher than
65 feet below the surface. Any elevation limits will be
designed to contain material within the current lateral limits
of the MDS, and will be set based on scientific evidence.
2. We will help remove the immediate obstacles to dredging the
Port
The Port Authority of New York and New Jersey, terminal
operators, shipping lines, and labor groups have identified
numerous ways in which we can help expedite dredging in the
Port. We have heard, and are responding to, their concerns.
Making the MDS available for category 2 material for the
next 12 months, and allowing the elevation at the site for
category 2 material to increase, would remove the most
immediate and major Federal obstacles to dredging. The
designation of the Historic Area Remediation Site will assure
long-term use of category 1 dredge material.
Our outreach to the companies, longshoremen, harbor pilots,
and others whose livelihood depends on the Port, has identified
many additional steps our agencies can take to further
facilitate adequate dredging in the Port. A major source of
concern and potential cost for permit applicants has been
uncertainty surrounding the testing that must support permit
applications. Accordingly, by the end of August, EPA will
finalize its proposal that tests of only two species, not
three, will be required of permit applicants. EPA then will
invest at least 9 months in a process for all affected groups--
industry, labor, and environmental groups--to help the Agency
review the ocean disposal testing requirements and ensure that
any further revision reflects both sound policy and sound
science.
The Corps of Engineers will expedite the processing of
dredging permit applications and completion of its own dredging
projects. The Corps will issue public notices for dredging
permits within 15 days after a completed application is
submitted, or will have requested any additional information
necessary to make the application complete. Within 90 days, the
Corps will either issue the permit, deny the permit, or commit
in writing to a deadline for the permit decision. The Corps
responsibility for the Federal channels will also be met with
cooperation from the states and the funding requested by the
President, the Corps will ensure maintenance dredging for 10
high-priority Federal channel projects before the end of 1997.
In addition, the Corps and EPA will accelerate their work
with the affected state and local governments on a sound dredge
material management plan, and complete the interim plan by
August 30, 1996. This interim plan will identify any steps that
are necessary to sustain dredging through 1997. The final plan
will be completed by September, 1998.
Most importantly, we expect that our commitments concerning
the MDS will diminish or eliminate the possibility of
litigation challenging permits and the EPA rule change during
the period prior to September 1, 1997. This proposal is
predicated on that result.
3. We will help ensure the health of the Port and the
environment for the 21st Century
The short-term efforts identified here cannot truly help
the Port without effective long-term strategies to ensure that
dredge material is managed properly. We recognize the
significant efforts and commitments that New York and New
Jersey have made with us to put those strategies in place. We
will reinforce those efforts, so that long-term growth of the
Port is sustained and sustainable.
Recognizing that a vital Port should be able to accommodate
the full range of world-class ships, the Corps will soon begin
an expedited feasibility study of alternatives for a 50 foot
deep Port, including recent legislative proposals on this
issue. The Corps will seek Congressional authorization and take
steps to reprogram funds to allow the study to begin in 1996,
and the study will be designed for completion in 1999.
Recognizing that dredging is not the only issue affecting the
future of this and other Ports, the Department of
Transportation is committed to a six-month study of the causes
of cargo diversion from our East Coast ports. This study, which
will be developed in consultation with other affected agencies,
will recommend any additional measures that are needed to
enhance the international competitiveness of our East Coast
ports.
Continued growth of the Port must be coupled with
aggressive development of disposal alternatives and expanded
efforts to reduce toxic pollution in the harbor. The
Administration will continue to support legislation and
appropriations to support cost-sharing of upland disposal
alternatives. The Administration will also seek support for the
range of continuing efforts to develop acceptable alternatives.
For example, EPA is today announcing $1.2 million in contract
awards to support development of decontamination technologies
for dredge material. In addition, the Corps will immediately
seek necessary authorization and funding to begin the technical
design and feasibility studies needed for environmentally sound
confined containment facilities, in anticipation that such
facilities may be part of the final dredge material management
plan. We also will pursue additional steps to reduce and
address toxic pollution in the estuary. We will seek to
minimize polluted runoff by funding and suporting local and
region-wide watershed planning and implementation activities.
By September 1996, EPA will invest $100,OOO to facilitate
pollution reduction in the Arthur Kill. All of these efforts
will be coordinated with the Harbor-Estuary Comprehensive
Conservation and Management Plan, which is the blueprint for
working cooperatively with state and local governments,
businesses, and citizens to reduce toxic pollution in the
watershed.
We will be calling upon every member of the New Jersey and
New York delegations, as well as the affected state and local
governments, to continue our constructive and cooperative
efforts to sustain port growth and environmental protection. We
will also be submitting periodic reports to the President on
our success in implementing this plan and on any continuing
obstacles to harbor dredging.
We appreciate your continuing leadership and advice as we
work together to ensure a healthy economy and a healthy
environment for the region.
------
Statement of Rocky Mountain Oil & Gas Association
INTRODUCTION
The Rocky Mountain Oil & Gas Association (RMOGA) is a trade
association representing hundreds of members, both large and
small, who account for more than 90 percent of the oil and gas
leasing, exploration, and development in an eight-state region
in the Rocky Mountain West. Over 90 percent of the Federal
lands lie in the western third of the United States. As such,
most RMOGA states contain significant amounts of Federal
acreage. Consequently, RMOGA's members routinely obtain Federal
oil and gas leases and conduct exploration and development
activities throughout these public lands. All of these actions
are subject to compliance with NEPA.
NEPA, enacted by Congress in 1969, is a procedural Act
designed to ensure the Federal Government considers the
environmental consequences of all major Federal actions prior
to making decisions on whether certain activities will be
allowed to proceed. The Act also directs that broad public
involvement be an integral part of the analysis process. Upon
passage of NEPA, the Council on Environmental Quality (CEQ)
developed regulations for implementing the Act's procedural
provisions. The CEQ regulations attempted to develop a
reasonable approach to NEPA compliance and have been modified
since their inception to take into account the need for
streamlining the process to avoid unnecessary delays or
analysis.
However, while RMOGA firmly believes no statutory changes
are needed to ``fix'' NEPA itself or its implementing
regulations, there are many problems associated with the
Federal agencies' interpretation of NEPA and implementation of
CEQ's regulatory requirements. Moreover, even though land
management agency manuals plainly recognize the intent of the
law and regulations and have set forth procedures accordingly,
actual NEPA compliance by these agencies often flagrantly
ignores the intent of the law and regulations.
For example, the CEQ regulations direct agencies to reduce
paperwork by keeping the length of environmental impact
statements (ElS's) short by preparing ``analytic rather than
encyclopedic'' ElS's; limiting issue analysis to only
significant issues, while briefly describing insignificant
issues; and utilizing tiering, adoption or incorporation by
reference of relevant documents to eliminate duplication and
unnecessary analysis. Comparable direction is aimed at reducing
delays by emphasizing interagency cooperation before beginning
preparation of the EIS, recommending the establishment of time
limits for EIS preparation, and utilizing categorical
exclusions and ``findings of no significant impact'' when an
action not otherwise excluded will not significantly effect the
human environment. None of the Federal agencies adhere to these
or other CEQ directions. As a result, the EIS process is overly
long, complex, and extremely costly. In fact, it would appear
the process is also used to delay proposed projects in the hope
proponents will abandon their projects. An unfortunate outcome,
due to excessive costs, delays, and uncertainty associated with
NEPA, is that companies are reluctant to invest their capital
in projects on public lands and end up avoiding Federal lands
altogether, where possible.
The first step in remedying this onerous situation is
clear--require Federal land management agencies to immediately
implement the NEPA Streamlining Recommendations developed by
the Green River Basin Advisory Committee (GRBAC) in June 1996.
GRBAC was convened by Interior Secretary Babbitt and was
comprised of environmental, oil and gas industry, private land
owners, state and local government representatives, as well as
several ex-officio members from the BLM, Forest Service and
DOE. One of GRBAC's self-appointed tasks was to assess the
myriad problems associated with the NEPA process, the impetus
being perceived conflicts between natural gas development in
southwest Wyoming/northwest Colorado and wildlife concerns. As
a result, the Committee identified many flaws in the current
NEPA process and developed a set of specific recommendations
aimed at solving the problems. The Committee's findings are
relevant to all NEPA endeavors and the recommendations should
be applied to all NEPA projects, whether they are at a site-
specific project or programmatic level, including Federal land
use planning.
Even though the Department of Interior committed to
formally adopting these recommendations, no specific guidance
or direction has been issued to BLM field offices. And, while
BLM named a pilot project, the Jonah II project in Wyoming, to
test the validity of the GRBAC recommendations, the project
failed because the recommendations were not implemented by the
Federal agencies involved in the project. As a solution to this
dilemma, we urge the House Resources Committee to pass a
resolution calling for DOI and DOA adoption of the GRBAC
recommendations. We also recommend the Committee require an
annual report from both BLM and the Forest Service showing
progress made in streamlining their NEPA processes.
Other specific issues and solutions RMOGA would like to
emphasize are identified in the following discussions:
Revise Agency NEPA Procedures To Ensure Consistency With CEQ
Regulations
Over the past two decades, Federal land management agencies
have become less effective as land managers due to litigation
by preservation groups. For example, they have routinely
elected to prepare full blown ElS's on projects which could
have been sufficiently addressed by either a categorical
exclusion from NEPA or an environmental assessment. This
misguided attempt to prepare ``bulletproof'' documents has
resulted in protracted delays due to inordinate analysis
requirements and increased costs in the NEPA process. In
addition, agencies are relying less on trained resource
specialists to make everyday land use decisions. As mentioned
previously in this statement, the CEQ regulations offer a
variety of options for ensuring the NEPA process is effective
but not excessive. The agencies should more clearly incorporate
this direction into their own procedures and return land
management to resource professionals.
Institute Federal Agency Accountability in the NEPA Process
The greatest cause for delay and excessive costs associated
with the NEPA process is the agencies' insatiable demand for
new resource data, particularly when a project proponent is
paying for the NEPA documentation in order to have it completed
within a reasonable timeframe. NEPA requires that an
environmental analysis include only the best available
information and that if there is a lack of information it
should be so stated in the EIS. However, agencies are
compelling project proponents to pay for data collection which
should have been collected as part of the land use planning
process. Some field offices also appear to be analyzing
speculative and extraneous alternatives to the proposed action
which serves to further complicate the NEPA analysis and to
delay projects in which millions of dollars have been invested
by proponents.
NEPA delays are not only harmful to the companies that have
legally binding contractual agreements with the Federal
Government to exercise their lease rights, they also result in
delays in revenue going to the Federal, state and local
treasuries. It is imperative for these onerous delays to be
eliminated. In addition to requiring agency personnel to comply
with CEQ regulations, we believe the best way to reduce costs
and delays is to hold agency personnel accountable for using
the most practical and time and cost effective means to acquire
data where gaps exist. Also, cooperative data collection
undertakings among Federal agencies and state and local
governments should be mandated. Ultimately, these cost and time
saving measures should be incorporated into job performance
standards of NEPA team leaders, line officers and agency heads.
Reduce Costs
Due apparently to increasing budget shortfalls, as
mentioned above agencies are increasingly shifting the
financial burden of project level NEPA compliance to industry
for the plant and animal inventories, surveys and
documentation. Unfortunately, this cost shifting trend also
precludes many independent petroleum companies from operating
on Federal lands and is becoming a principal cost constraint
for larger operators. Partial relief may be accomplished by
adoption of an Eco-Royalty Relief (ERR) program, as recommended
by GRBAC. As proposed, ERR would allow industry to take credit
against royalty payments for the cost of project NEPA
documentation and mitigation/monitoring activities which exceed
lease and regulatory requirements. ERR is supported by
environmental Groups, the state of Wyoming, the public and
industry.
Furthermore, GRBAC's NEPA streamlining recommendations
include ERR as a critical streamlining element because it could
help resolve controversial issues early, provide a means for
gathering sound scientific data to accurately assess potential
impacts and mitigation. A DOE analysis in the GRBAC report
indicates application of ERR would be revenue positive by
accelerating royalty payments to Federal, state and local
governments.
Establish Time Frames
Time frames associated with project level NEPA analyses
have become intolerable. Two to 4 years to obtain project
approval on existing leases is unconscionable. While we
recognize it may be impractical to impose fixed timeframes for
completion of all NEPA documents, every effort should be made
by the agency to perform within a reasonable schedule, which it
can be held to by the project proponent. The GRBAC
recommendations target a 50 percent reduction in time and paper
which RMOGA believes is feasible if the agencies commit to
streamlining the NEPA process. Utilizing options such as
tiering, incorporating by reference and adopting exist-
ing information would help agencies reduce their analysis
times. RMOGA recommends the agencies be required to track their
performance in an annual report to Congress.
Improve Communication and Interagency Coordination
Improved communication, coordination and resource data
exchange among Federal, state and local governments and project
proponents will help streamline the NEPA process, both at the
project level and the land use planning level. Federal agencies
are reluctant to allow local government involvement in the NEPA
process, despite the fact they have a vested interest in the
decisions being made and can help make the process run more
smoothly. On the other hand, one of the most frustrating and
controversial aspects of interagency coordination is that many
single use agencies fail to recognize Federal land management
agencies have a Congressionally mandated multiple-use mandate
which cannot be abrogated. Furthermore, issues are often raised
that are clearly beyond the scope of the analysis, e.g. global
warming. Such input adds tremendous cost, time and controversy
to the NEPA process for all parties while contributing little
value from the perspectives of science-based decisionmaking,
risk management or efficient land management. Clearly the lead
Federal agency must take responsibility to ensure the process
runs efficiently and cost effectively.
Establish NEPA Coordinators
Federal agencies should establish a national NEPA
coordinator to oversee all NEPA projects within an agency. This
coordinator would ensure agency compliance with CEQ regulations
and would have actual experience in managing NEPA projects.
This position would also help ensure NEPA projects are kept on
track and are adequately staffed and funded. To date, there is
little or no agency support for NEPA experts. NEPA compliance
typically falls to subordinate staff with little or no
experience in project management and/or NEPA compliance. Since
NEPA compliance constitutes a major responsibility of land
management agencies, greater support from all levels of
management must be provided.
Avoid Unessential Public Involvement
Once again, due to fear of litigation, many Federal field
offices issue public scoping notices on each and every minor
activity proposed on public land, including those which involve
previously disturbed areas, such as weed control along an
existing access route. This results in unnecessary project
delays, not to mention wasted Federal funds. Public
notification and requests for comments should be limited to
major projects that could result in significant impacts to
other resource values or the human environment.
Improve the Scoping Process
Agencies should limit the NEPA analysis to issues relevant
to the project at hand. Agencies typically analyze in great
detail insignificant issues simply because they have been
raised in public comments. While it is important to identify
all relevant issues as early as possible in the process, it is
irrational to analyze each and every issue raised, particularly
if a resource value or conflict does not exist within the study
area or if it has already been adequately addressed in another
document.
While the CEQ regulations indicate ``alternatives'' are the
heart of the EIS, it is inefficient to analyze every possible
alternative that can be contrived. NEPA, itself, indicates only
appropriate alternatives needed to address unresolved conflicts
are necessary. Therefore, the range of alternatives should be
dictated by the nature of the project proposal, including
potential mitigation measures, and kept to the minimum needed
to provide a method for resolving perceived conflicts.
Improve Monitoring Requirements
We propose the agencies adopt a procedure for determining
when land use activities are approaching the management
threshold established in land use plans to ensure resource
sustainability and land management continuity. As such, active
monitoring must be done on all resource activities. This will
allow Federal land management agencies to track key resource
issues, improve their resource data bases and obtain a true
picture of actual cumulative effects of surface management
decisions. In order for this concept to work, the agencies must
make monitoring a priority. In addition, a quality control
process needs to be put in place to ensure resource management
objectives are clearly stated and measurable. Management
thresholds, which when reached require a review of existing
management practices, must also be identified. An extremely
important element of the monitoring effort is maintenance of
existing resource data. This effort could be accomplished
collectively with other Federal and state agencies. The end
result would be a system for resource management planning which
will increase efficiency in the Federal land use planning and
project level NEPA processes.
In conclusion, there are many ways in which to improve the
NEPA process by revising current agency procedures. While RMOGA
believes the risks associated with the legislative process may
be unacceptably high on the NEPA issue and that the current
framework can be made to work better, we would fully support
legislation to implement an Eco-Royalty Relief program to
address the currently unbridled costs associated with project
level NEPA.
------
Statement of Hon. Alex Penelas, Mayor, Miami-Dade County
In early 1993, President Clinton's administration
designated Homestead Air Force Base as ``a model for the
nation'' of fast-track realignment and conversion under the
Presidential Five Point Plan. Realignment occurred on 31 March
1994, and reconstruction of the Air Force Reserves cantonment
area is proceeding on schedule. However, 4 years later, the
``conversion'' part of the model (the non-cantonment portion of
the base) is still in ``analysis paralysis.'' Specifically, the
civilian airport reuse of the base, which was touted as the
engine of economic revitalization, lingers in administrative
limbo.
The economy of the South Miami-Dade area, dependent for
over 50 years on active duty military operations and
agriculture, has lost over $4 billion since realignment. The
area's continued economic recession is the biggest single
contributor to the persistently high rates of unemployment
figures in our county while the remainder of the state and the
Nation enjoy sustained prosperity. Clearly, the entire county's
economic viability is at stake.
The complicated conversion process of the former Homestead
Air Force Base from active duty to a joint civilian-military
use facility was to be the engine of economic renewal after
Hurricane Andrew's devastation. The process, however, appears
to be on an indefinite holding pattern. This is due primarily
to the manner in which the Council of Environmental Quality
(CEQ) has interpreted a certain key rule in the National
Environmental Policy Act (NEPA) of 1969. The rule in question
requires the consideration of what is known as the ``No-Action
Alternative'' as part of any Environmental Impact Statement
(EIS). Analysis of the No-Action Alternative is very useful for
situations involving the development of property at its highest
and best use, but the No-Action Alternative is very misleading
in the context of redevelopment in situations where, through an
unfortunate combination of natural disaster and subsequent lack
of maintenance and repair, property slated for redevelopment
is, at the time of the EIS, underutilized and/or abandoned. In
these circumstances, the No Action Alternative forces the
Federal Government to start with a baseline which produces an
artificially low level of environmental impacts. This
automatically biases the entire process against any type of
redevelopment.
We currently face this situation with respect to the
Supplemental EIS that has been ordered for the former base. The
No-Action Alternative as it exists today disregards the former
active duty military operations on the entire 2,940 acres of
the property by reducing it to a reserve base with a very low
level of military activity along with some ancillary law
enforcement uses occupying less than one third of the original
acreage. This is dramatically different from the level of
activity that the base generated prior to Hurricane Andrew. To
use the current artificially low level of activity as the
comparative basis for a determination of whether the
redevelopment should be allowed, defies sound judgment and
harshly impacts South Florida through the potential loss of the
valuable resource of the redeveloped use of the base.
This same scenario exists any time a natural disaster, or
just programming changes, result in the redevelopment of
Federal property after it has become dormant for even a short
period of time and therefore should be corrected.
The logical, factual, most equitable solution is to require
that the No-Action Alternative be based upon the level of use
that the property experienced at its highest level of use in
the past. Using this approach, redevelopment of real property
that has been allowed to deteriorate for some years would be
appropriated based upon the highest level of use that had
existed in the past. This method considers the appropriate
level of use of properties that were previously developed to
their highest and best use while still protecting natural
resources requiring continuing evaluation. Using the prior
level of activity as the basis for future determinations
ensures strict control over the potential for overdevelopment
and overexpansion.
I strongly urge you to consider the clarification of this
key NEPA interpretation so that the No-Action Alternative
reflects the highest level of activity attained prior to it
being artificially reduced.
Additionally, I urge that the current status of base
contamination levels be accurately and rigorously documented in
the SEIS. Restoration and investigation records prove that the
base is one of the most environmentally clean in the Nation and
that it poses an insignificant level of risk to human health
and the area's environment.
* * * * *
During the process of trying to complete the realignment
and conversion of the former Homestead Air Force Base to a
joint civilian and military use facility, it has been a problem
dealing with NEPA because of the interpretive rules which have
come down from the CEQ. These rules require the consideration
of what is known as the ``no action alternative'' as part of
any Environmental Impact Statement (EIS). While looking at the
no action alternative is very useful for situations involving
the development of previously untouched land and resources, the
no action alternative is very misleading in the context of
redevelopment in situations where, either through natural
disaster or other abandonment, a piece of property to be
redeveloped is, at the time of the EIS, underused or abandoned.
The no action alternative, in these circumstances, places the
Federal Government in the position of having, as the base line
for determining environmental impacts, an artificially low
level of impacts. This can render the redevelopment extremely
difficult.
We currently face this situation with respect to the
Supplemental EIS that has been ordered for the former base. The
no action alternative that exists today is a base that has a
very low level of reserve military use along with some
ancillary law enforcement uses. This extremely low level of
activity is dramatically different from the level of activity
that existed at the base prior to Hurricane Andrew. To use the
current, artificially low level of activity as the comparative
basis for a determination of whether the redevelopment should
be allowed, denies logic and harshly impacts South Florida
through the possible loss of the valuable resource of the
redeveloped use of this base.
This same scenario exists any time a natural disaster, or
just programming changes, results in the redevelopment of
Federal property after it has become dormant for even a short
period of time. This should be corrected.
A possible solution could be to require that the no action
alternative be based upon the level of use that the property
experienced at its highest level of use in the past. In this
way, redevelopment of property that has been dormant or
artificially reduced in use for some period of time would be
appropriately based upon the level or use that had existed in
the past. This way the people will not be denied the
appropriate use of properties that have previously been
developed while still protecting those natural lands that
should continue to be protected. By using the prior level of
activity as the basis for future determinations, the prospect
of over development and over expansion can still be controlled.
------
Statement of the American Petroleum Institute, the Natural Gas Supply
Association, the Independent Petroleum Association of America, the Mid-
Continent Oil and Gas Association, the Western States Petroleum
Association, and the National Ocean Industries Association
The nation's leading petroleum industry associations appreciate the
opportunity to present their views on NEPA process and how it affects
our companies' applications to explore for and produce hydrocarbons on
Federal lands. This statement is presented on behalf of the American
Petroleum Institute (API), the Natural Gas Supply Association (NGSA),
the Independent Petroleum Association of America (IPAA), the Mid
Continent Oil and Gas Association (MCOGA), the Western States Petroleum
Association (WSPA) and the National Ocean Industries Association
(NOIA).
API represents more than 400 companies involved in all aspects of
the oil and natural gas industry, including exploration, production,
transportation, refining and marketing. NGSA represents integrated and
independent companies that produce and market natural gas. IPAA
represents explorers and producers that drill some 85 percent of the
nation's oil and gas wells. MCOGA represents petroleum companies in
Alabama, Louisiana, Mississippi, Oklahoma and Texas. WSPA promotes
policies that will help meet energy needs of the West and the nation.
NOIA represents more than 280 companies and many individuals involved
in exploration for and development of domestic offshore oil and natural
gas resources.
In section 102 of the National Environmental Policy Act (NEPA), the
Congress directed all Federal agencies ``to use a systematic,
interdisciplinary approach . . . in planning and decision-making which
may have an impact on man's environment . . . which will ensure that
presently unquantified environmental amenities may be given appropriate
consideration in decision-making along with economic and technical
considerations.''
Although NEPA contained few mechanisms to achieve its goals, it has
had tremendous impact on public land management decisions as a result
of the procedural mandate from Congress, which directs all Federal
agencies to ``include in every recommendation or report on proposals
for legislation and other major Federal actions significantly affective
quality of the human environment, a detailed statement by the
responsible official on the environmental impact of the proposed
action, any adverse environmental effects which cannot be avoided
should the proposal be implemented, alternatives to the proposed
action, the relationship between local short-term uses of man's
environment and the maintenance and enhancement of long-term
productivity, and any irreversible and irretrievable commitments of
resources which would be involved in the proposed action should it be
implemented.'' The Council on Environmental Quality (CEQ), created by
Title II of NEPA, promulgated regulations implementing these action-
forcing procedures of NEPA that are binding on all Federal agency
decisions.
The requirement that Federal agencies prepare an environmental
impact statement (EIS) prior to major agency actions significantly
affecting the environment has spawned a body of law that now governs a
variety of predominantly private activities involving any degree of
Federal oversight, funding or approval. The lead agencies preparing
EISs for oil and gas activities on Federal onshore lands are the Bureau
of Land Management (BLM) and the U.S Forest Service of the Department
of Agriculture. For activities on Federal offshore lands, the lead
agency is the Minerals Management Service (MMS) of the Department of
the Interior. In both offshore and onshore projects, other agencies,
such as the Environmental Protection Agency and the Army Corps of
Engineers, are typically involved in consulting roles, sometimes
recommending requirements or stipulations for the lead agency to impose
as a condition for granting a permit. Although the EIS process has
helped achieve many of NEPA's goals, it has at times and in different
places imposed unnecessary delays and costs on petroleum company
operations without significant environmental benefits.
Although statutory change is probably unnecessary and existing
regulations are adequate, considerable change in the way the process is
administered would be beneficial to Federal agencies, project
applicants and American taxpayers. The only groups that would oppose
change would be those which use the NEPA process to inflict costly and
protracted delays in Federal decision-making, so as to sink projects
through procedural maneuvering when opposition on the merits is
groundless. Among the problems that need to be addressed are the
following:
<bullet> Fear of litigation has forced Federal agencies to seek
``litigation proof'' reviews, which leads to unnecessary
analysis, cost and delay. A lower confidence level should be
satisfactory.
<bullet> Too often the Environmental Protection Agency (EPA)
only provides comments on draft EISs, frequently at the end of
the comment deadline. EPA should identify its concerns early in
the NEPA process, as contemplated in NEPA and the CEQ
regulations. Extraneous analysis could be eliminated if salient
issues were identified earlier and analysis were kept focused
on important issues.
<bullet> At times lead agencies have difficulty getting other
agencies with jurisdiction or relevant expertise to become
``cooling agencies.'' If a request to a sister agency is
denied, lead agencies are often unwilling to enforce CEQ
regulations that require all agencies with jurisdiction to
participate in the process.
With regard to onshore projects in particular, we would note the
following difficulties:
<bullet> There is a tendency in the BLM and Forest Service to
slow down the process simply because a project may be
controversial, rather than moving forward with an efficient
``issue management'' approach.
<bullet> Cooperating agencies do not always reflect an adequate
understanding of the multiple-use mission of the BLM and Forest
Service. Hence, they often try to force projects to comport
with their own narrower agendas.
<bullet> Agencies have demonstrated a lack of understanding of
CEQ regulations implementing NEPA and/or a lack of commitment
to following CEQ guidelines.
<bullet> NEPA team leaders often have little or no experience
or training in managing the NEPA process or dealing with the
type of project under consideration. There is a lack of support
and oversight on NEPA projects by agency managers and NEPA
specialists.
<bullet> There is no agency accountability for the NEPA
process.
<bullet> Often there is poor communication between the project
proponent, the lead NEPA agency and any third-party contractor
retained to conduct the analysis.
<bullet> When project proponents are paying third-party
contractors for EIS work, there is no obligation or incentive
on the agency's part to streamline the work, improve efficiency
or otherwise reduce cost.
<bullet> Agencies often fail to explore preferred mitigation
efforts early in the process with other appropriate agencies
and stakeholders. Agencies are often unwilling to dismiss
frivolous public commentary and to separate ideological
commentary from that focused on project-specific environmental
impacts.
<bullet> The NEPA process sometimes creates timing difficulties
when understaffed agencies are asked to meet tight comment
periods and time lines. Cooperative planning memorandums of
understanding between lead agencies and state and local
regulatory authorities could minimize difficulties and
duplicative efforts while still allowing for meaningful input
from all parties.
Offshore projects encountered their own unique problems over the
years. However, the MMS, in working with industry public commenters,
has been able to significantly streamline the offshore NEPA process in
the traditional offshore areas. In the past, after a preliminary
environmental assessment (EA) of proposed agency actions, the MMS
routinely prepared full-blown EISs prior to offshore lease sales, and
prior to implementation of each 5-year Outer Continental Shelf (OCS)
Leasing Program. Numerous full-blown EISs were prepared over the years
for lease sales in the central and western Gulf of Mexico. It is our
understanding that, on average, it took MMS approximately 2 years to
identify, design, conduct, evaluate, draft, respond to comments, and
publish full-blown EISs. In these traditional areas, the final EISs
contained similar information. Since CEQ's implementing regulations
provide for the agencies to develop ``categorical exclusions'' to avoid
duplicative EIS requirements, MMS has moved significantly to streamline
the process in the traditional offshore areas.
Oil companies must seek numerous Federal, state and local approvals
for offshore activities, such as Exploration, Development Operation
Coordination Documents, Plans of Development, and right-of-way
applications. As part of MMS's former review and approval process of
each application, it had to make redundant internal environmental
assessments for each step, adding unnecessary time and costs to the
approval process. As a result of MMS's evaluation of these past delays
and redundant compilations of information, MMS has become one of the
most responsive and cooperative of Federal agencies involved in the
NEPA process. Current MMS NEPA requirements, as applied to the Gulf of
Mexico OCS, include preparing one EIS for multiple sales. In the
central Gulf of Mexico, MMS prepared a single EIS covering the next
five proposed OCS lease sales.
With thousands of operations conducted annually on the OCS, and
with strict liability regulations in place to assure that those
operations are performed prudently, using the highest environmental
mitigation technologies, MMS has conduded that additional full-blown
NEPA reviews in traditional areas such as the central and western Gulf
of Mexico are unnecessary.
The full-blown EIS process in frontier areas--for example, in ultra
deep waters and the Eastern Planning Area in the Gulf of Mexico--is
important to provide MMS as the lead agency with new environmental
information. These studies should be expedited so that MMS will have
the body of data necessary to decide if categorical inclusions for
these areas are warranted.
______
Statement of the American Farm Bureau Federation
The American Farm Bureau Federation (AFBF) is the nation's
largest general farm organization. AFBF has affiliated state
Farm Bureau organizations in all 50 states and Puerto Rico,
representing the interests of more than 4.8 million member
families. We appreciate the opportunity to submit this
statement for the hearing record, and to bring to the Committee
some of the problems and concerns that we have encountered with
the application of the National Environmental Policy Act
(NEPA).
One of the primary stated goals of NEPA is to ``encourage
productive and enjoyable harmony between man and his
environment.'' The statute provides a mechanism whereby the
environmental impacts of Federal agency action can be assessed,
taking into consideration the social and economic implications
for such actions. NEPA is not designed to create any new
substantive rights.
There are three main issues that we want to bring to the
attention of this Committee with regard to NEPA.
1. Farmers, Ranchers and Other Economic Interests Are Being
Denied Judicial Standing To Challenge the Agencies' Compliance
With NEPA.
Despite the fact that NEPA is ostensibly just a procedural
statute, it has been the subject of extensive litigation. Most
of the litigation has centered on the adequacy of a Federal
agency's compliance with the provisions of NEPA. Challenges
take the form of suits claiming that more extensive
documentation should have been prepared in particular cases, or
that the prepared documentation was inadequate.
Unfortunately, recent court decisions addressing the scope
or adequacy of NEPA documentation have not included any cases
brought by farmers, ranchers or other landowners. That is
because a number of Federal courts have held that farmers,
ranchers and other landowners have no judicial standing under
NEPA to challenge the adequacy or sufficiency of NEPA
documents. Such courts have held that social and economic
interests are not within the ``zone of interests'' contemplated
by NEPA, and they conclude that there is no basis to bring suit
to challenge decisions made under the law.\1\
---------------------------------------------------------------------------
\1\ Examples of such decisions include Nevada Land Action
Association v. U.S. Forest Service, 8 F.3d 713 (9th Cir. 1993); Region
8 Forest Service Timber Purchasers Council v. Alcock, 993 F.2d 800
(11th Cir. 1993). This exclusion was also used to deny Farm Bureau
standing to challenge the adequacy of the Environmental Impact
Statement for the Reintroduction of the Gray Wolf Into Yellowstone and
Central Idaho, Wyoming Farm Bureau Federation, et al v. Babbitt, et al.
No 94-CV286-D, District of Wyoming (1997)
---------------------------------------------------------------------------
The courts that have denied standing to economic and social
interests to challenge NEPA documentation have failed to
consider the balancing between man and the environment required
by NEPA and that was one of the primary purposes of NEPA as set
forth above. NEPA requires agencies to consider the social and
economic impacts of agency action in evaluating alternatives,
but courts do not give those interests any recourse when
impacts are ignored or not adequately described.
Nevertheless, these decisions are on the books. Farmers,
ranchers and other landowners have no way to challenge the
adequacy of NEPA compliance in those jurisdictions where these
cases exist. Even though NEPA only creates a process that
agencies must follow, the infommation that is produced as part
of that process plays a big part in the decision that is
ultimately reached. Agencies rely on the information that is
developed in reaching a decision. Thus, if any aspect of the
information required to be developed is inadequate or is
inaccurate, that deficiency skews the entire decision-making
process.
The denial of standing for farmers and ranchers to
challenge the NEPA process is detrimental for a number of
reasons. By denying them the opportunity to protect their
interests, it effectively denies them any meaningful
participation in the NEPA process. An agency that has no
accountability for the accuracy or completeness of its social
and economic analysis will likely pay less attention to that
part than to other aspects of the analysis.
Denial of standing also creates the inequitable result that
only conservation interests can challenge decisions adverse to
them, while commodity interests cannot challenge decisions
adverse to them. Agencies only have to pay attention to one
side of the issue, because that is all they can be held
accountable for. The ``balance'' that NEPA called for between
man and his environment has thus been destroyed. Instead of
promoting that balance as NEPA was intended to, the manner in
which NEPA is being interpreted is making consideration of man
with his environment even more out of balance.
This problem has adverse impacts on decision-making as
well. Agencies considering only one side of an issue
necessarily suffer because they do not consider the other.
Effective decisionmaking best occurs when all sides of an issue
are considered.
This problem could be solved through legislation, with an
express provision defining standing under the Act. Until this
situation is resolved, the intent of NEPA will be thwarted, and
the quality of decision-making thereunder will suffer.
2. Resource Planning and Implementation Activities Are Too
Often Subject to Duplicative NEPA Compliance.
Another major problem hamstringing land management agencies
is the duplicative NEPA compliance that is required for both
planning activities and for implementation of those planning
decisions.
The National Forest Management Act (NFMA) requires the
Forest Service to develop forest plans for each element of the
National Forest system. Similarly, the Bureau of Land
Management is required to develop land management plans for
each unit of its system. Typically, these plans encompass the
entire unit, and are broad based documents that encompass all
or almost all resource uses within the unit.
The management plan is implemented within each unit through
individual site-specific management actions. If, for example, a
forest plan calls for 30,000 animal unit months of grazing per
year in the forest, that broad statement is implemented through
the implementation of individual grazing permits that total
30,000 animal unit months per year. The plan paints the broad
picture--individual implementing actions fill it in.
Forest and resource plans are subject to the provisions of
NEPA. All plans were preceded by an Environmental Impact
Statement (EIS) prepared in accordance with NEPA. The EIS for
each plan was used to determine use allocations and locations
within the forest. The goals, objectives and broad design for
each resource unit are determined through the public
participatory processes spelled out in NEPA.
Once these goals have been determined, however, the actions
that implement these plans should not also have to go through
the same process. The extensive analysis undertaken for each
forest plan or resource plan pursuant to the National
Environmental Policy Act is undermined by going through the
same process for each project level activity (such as grazing
permit renewals), notwithstanding the fact that such activities
are in compliance with the forest plan. If adequate NEPA has
been done in the development of the management plan, the same
process ought not have to be repeated for individual projects
that implement the plan. This results in a waste of money,
manpower and time.
These duplicative actions also hamstring the ability of a
land management agency to accomplish its mission. Instead of
on-the-ground work, agency personnel are tied up doing NEPA
work onsite-specific projects that should not have that level
of analysis in the first place.
An example of this situation occurred in 1995, with the
renewal of Forest Service livestock grazing permits coming due.
More than half of the over 9,000 permits were up for renewal by
the end of that year, and the Chief of the Forest Service had
determined that NEPA must be complied with before permits could
be re-issued. Livestock grazing allocations had been determined
in forest plans after having gone through the NEPA process.
This situation threatened to tie up Forest Service personnel
for a long period of time doing nothing but NEPA compliance for
grazing permit renewals. Fortunately, this situation was
resolved before the entire Forest Service became nothing more
than a NEPA compliance factory. But it took a legislative
solution to accommodate all interests.
That is not to say that NO analysis is necessary at the
implementation phase. But it certainly should not have to be an
EIS. As long as the implementing action is consistent with and
in accordance with forest or resource allocations, a much
lesser level of analysis should be sufficient. Perhaps all that
is needed is an analysis to determine that conditions are the
same or similar to when the management plan was developed. In
any event, there needs to be some accommodation so that the
same costly and time consuming work that is being conducted at
planning levels is not being needlessly duplicated at the
implementation stage.
3. Little or NO NEPA Work is Done on Many Things that Affect
Federal Resource Units.
We have described above situations where compliance with
NEPA results in the same NEPA activities being required to
implement specific measures that have already undergone NEPA
analysis.
Ironically, little or no NEPA work is usually done for
actions that actually represent changes in direction of the
land management plan. For example, the Forest Service has
adopted multi-forest or regional guidelines, or developed
watershed plans or ecosystem management plans, that may affect
a number of forest plans. Within the framework of NFMA, these
changes would be viewed as plan amendments, yet very rarely is
NEPA ever performed or forest plans even formally amended to
incorporate these additional plans. Instead these additional
processes are overlain on the forest plan and not made a part
of it. The use of these devices serves to circumvent the
requirements of NEPA altogether.
These are but a few of the general issues affecting the way
NEPA works. In some cases it causes duplication, while in other
cases it allows complete circumvention of its requirements.
All three of the issues that we have identified here are
important, and they subvert the purposes for which NEPA was
enacted. All three can be solved by some legislative direction
or clarification. If anything is to come out of this hearing,
we hope that it can be a way to resolve these issues. The
American Farm Bureau Federation offers its assistance to
satisfactorily resolve these situations.
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