Proposed NEPA Revision Comments
March 9, 2020
Mary B. Neumayr
Chair, Council on Environmental Quality
730 Jackson Place NW
Washington, DC 20503
CC: Interior Secretary David Bernhardt
EPA Administrator Andrew Wheeler
Subject: Comments on [CEQ–2019–0003-001] RIN 0331–AA03
“Update to the Regulations Implementing the Procedural Provisions of the National Environmental Policy Act”
On behalf of The Cloud Foundation (TCF), we appreciate the opportunity to submit these comments regarding the proposed regulatory revisions to the National Environmental Policy Act (NEPA). [DB1] TCF [GK2] is a 501(c)3 non-profit dedicated to the preservation and protection of wild horses on public lands through advocacy, education and public participation in government. [DB3]
Our many years of experience with NEPA processes and comments have given us a profound respect for this fundamental environmental statute. NEPA passed the US House and Senate in December of 1969 and was signed into law by President Nixon on January 1, 1970, at a time the environmental movement was in its infancy and the quest to protect our natural environment was a bipartisan effort. NEPA is implemented through the regulations now under review and revision.
I. OVERVIEW
The proposed changes to the regulations would fail to adhere to the intent of Congress for passing NEPA:
“The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, 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, 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.”
—National Environmental Policy Act
We strongly oppose the Proposed Action because it eliminates and alters so many of the essential regulations that are necessary for implementing NEPA and carrying out the intent of Congress. Eliminating or revising regulations that would fail to uphold the intent of Congress to protect the environment for future generations is not in the best interests of the American people.
The proposed changes would fail to meet the standards of NEPA:
NEPA states that "it is the continuing responsibility of the federal government to use all practicable means ... to improve and coordinate federal plans, functions, programs and resources to the end that the nation may:
· Fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
· Assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings;
· Attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
· 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;
· Achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and
· Enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.”
— National Environmental Policy Act Council on Environmental Quality.
We strongly oppose any revisions that would:
· limit or reduce public input or the public’s ability to litigate agency actions
· limit the time for environmental reviews
· exempt project categories (new or old) from environmental review.
· allow users of the public lands to self-report and write their own environmental reviews.
· reduce or eliminate the requirement that agencies consider cumulative impacts or indirect impacts that may result from proposed actions.
· allow agencies to violate NEPA by considering violations “minor”
· allow alternative actions to be dismissed due to financial costs
· alter the requirement that agency actions must be in conformance “according to the letter and spirit of NEPA”
· eliminate or reduce wholistic approach to environmental review which is imperative to addressing direct and indirect impacts
II. DISCUSSION
The proposed revisions are cause for great concern as they violate the spirit and intent of Congress and would make the regulations ineffective in achieving the goals specifically outlined in NEPA. Examples include the following:
1. Under the proposed regulation changes, federal agencies would no longer be required to examine the cumulative impacts of a project, or even the indirect effects, for major projects which could potentially harm the human or natural environment. The cumulative impacts process examines the effects over time of land degradation, potentially adverse impacts on wildlife species and community health from a proposed action. Under the proposed change, each impact would be analyzed in isolation from all other factors impinging on that action; a review of indirect impacts would be limited to those not “remote in time” or place. This negates the core intent of NEPA, which specifies that a major federal action systematically review all potential impacts and propose credible alternatives to that action.
To cite one example, an action such as increased energy development or the expansion of livestock grazing, that could affect greater sage-grouse habitat, must incorporate a larger view to understand the impacts. Once numbering in the millions in the West, this species has shrunk from its historic population level by an estimated 93 percent. To take an artificially narrow view of how a proposed action may impact the survival of sensitive, threatened or endangered species would not be in conformance with NEPA.
2. Over the years, the government developed climate modeling tools to measure the indirect and cumulative effects of a project on heat-trapping emissions. The proposed regulation changes would end this important process. This is unacceptable and a violation of NEPA.
3. Another proposed change would exempt whole categories of proposed projects from environmental review — including those that are privately initiated and have levels of federal funding that are deemed to be insignificant. This blatantly violates the intent of NEPA. [DB4]
4. Another proposed change would allow private companies to write major portions of their own environmental review. At the same time, it proposes to eliminate the requirement that contractors certify to having no financial conflict of interest. Either of these changes would codify conflict of interest into the law making it permissible and potentially in conflict with other existing statues. [DB5]
5. The proposed changes would radically limit the time allowed for environmental reviews. Environmental assessments would have a proposed one-year deadline; environmental impact assessments, a two-year deadline. At a time when many federal agencies have reduced staff, this would cut the time for the most complex or controversial projects by more than half pushing the federal government to conduct incomplete, questionable or shoddy work products. This obviously violates the intent of NEPA which states the government should “use all practicable means and measures, including financial and technical assistance” to conduct NEPA reviews. Rushing an EIS only increases the chance that it will be poorly prepared, poorly vetted and vulnerable to being dismissed by the courts.
6. The proposed changes would require factoring in technical and economic considerations. This could enable an agency to dismiss any alternative merely because it deemed it to be too costly. This would be a violation of NEPA which specifically states that the government should use all “practicable means and measures, including financial and technical assistance” in making a determination on a proposed action.
7. The proposed changes would establish that only scientific studies that are deemed to be “reliable” would be considered as valid public input. This proposed change puts an undue burden on the public because while industry and the wealthy have the financial means to conduct “scientific studies”, the vast majority of Americans do not have the financial means to do so. This proposal is fundamentally un-American because it excludes the general public from participating and completely negates the intent of NEPA to consider impacts to the human environment. Currently, NEPA regulations require considering impacts to the human environment (which is defined as § 1508.14[1] Human Environment. Human environment shall be interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment.) This proposed change would override any such consideration and would be fundamentally un-American because it would essentially create a scenario where the will of the people could be completely ignored in order to cater to corporate/financial interests.
8. The proposed changes would also limit public input by stipulating that failure to comply with NEPA would not invalidate an agency action if a challenge is not “raised as soon as possible” or is deemed to be minor. This is an attempt to dismiss valid issues and complaints in order to permit illegal actions. Proposing a regulation to stifle the public’s ability to hold the government accountable is a violation of NEPA and goes against the essence of what our great country stands for.
9. The proposed revision would replace the requirement that federal agencies act “according to the letter and spirit of NEPA” with vague language about information-processing. This obscures the law and makes it harder, not easier, to get a clear, legitimate result from environmental reviews.
10. The proposed “exhaustion” rule would ensure that a public challenge, if not raised as soon as possible, or is deemed to be minor, cannot invalidate an agency action. This is a violation of the intent of NEPA and would harm the general public.
11. The proposed “severability” regulation would fragment environmental reviews and obstruct challenges to harmful projects. Under this proposed rule, if members of the public challenge a proposed project in court, sections of the project could only be stayed one by one. In other words, the proposed action could not be considered or invalidated as a whole. This undermines the spirit and intent of NEPA, which mandates a holistic view.
III. SUMMARY
Rather than improve the environmental review process, the proposed revisions clearly violate the intent, spirit and basic tenets of NEPA and instead aim to streamline commercial uses of our public lands at the expense of the natural environment, public health, and the will of the American people. These proposals are designed to straitjacket public participation that is essential to the NEPA process. The proposed changes are an attempt to circumvent Congress and to essentially change the law – something only Congress can do. This is not legal.
For these reasons, we strongly oppose the entire proposal.
Thank you for considering these comments and abandoning this ill-conceived proposal.
Ginger Kathrens
Executive Director
The Cloud Foundation