NEPA Success Stories - Energy
NEPA Success Stories:Celebrating 40 Years of Transparencyand Open GovernmentAUGUST 2010 Environmental Law Institute
NEPA Success Stories: Celebrating 40 Years of Transparency and Open GovernmentCopyright 2010 Environmental Law Institute , Washington, D.C. All rights reserved.An electronic retrievable copy (PDF file) of this report may be obtained for no cost from the Environmental Law Institute Website atwww.eli.org; click on “ELI Publications,” then search for this report. [Note: ELI Terms of Use will apply and are available on site.](Environmental Law Institute is a registered trademark of the Environmental Law Institute.)
Table of ConTenTsAbout This Publication .1Foreword .3Introduction .5Expansion of an Army National Guard Readiness Center .9A Highway, a Wetland, and a Divided Community .10Protecting Drinking Water from Uranium Mill Wastes .12Los Alamos Wildfire .14Preserving a Historic Brick Highway .16Joshua Tree National Park .18Ashland and the Rogue River .20Rethinking Routes and Roads on a National Forest .21Hells Canyon Comprehensive Management Plan .23The Point Project, Klamath National Forest .25Changing a Highway to a Parkway .28West Alsea Landscape Management Project .31Tritium Production Requirements .33NEPA SUCCESS STORIES
abouT This PubliCaTionThis publication is a joint effort by the Environmental Law Institute, the Grand Canyon Trustand the Partnership Project. It was made possibleby generous support from the Henry M. JacksonFoundation, 444S Foundation and the WilburforceFoundation. The views expressed in this publicationare not necessarily those of the funding or organizingpartner organizations.The Partnership Project, a non-profit incorporatedin Washington, D.C. in 1999, currently has 20groups participating, including the largest environmental advocacy groups in the country. By unitingtheir members and contributors on coordinated actions, the participating groups are creating a sum ofcitizen participation and advocacy greater than theycould generate acting apart.Stephanie Young of the Partnership Project, MaryO’Brien of Grand Canyon Trust, and Jim McElfishof Environmental Law Institute acted as projectcoordinators. They extend their sincere thanks tothe many authors who contributed their stories, andfor the hard work they do every day to make NEPAwork for better decisions and better outcomes for allstakeholders. Special thanks go to Russell Train forcontributing the Foreword to this volume and forhis foresight and dedication to creating an enduringstatute to serve the best interests of the nation andher environment. Many thanks as well to JoyceMcCarty for her editing assistance.Grand Canyon Trust is a conservation organizationadvocating for science-based solutions to energy, water, public lands, and Native American communityissues throughout the Colorado Plateau.environmental law institute makes law work forpeople, places, and the planet. With its non-partisan,independent approach, ELI promotes solutions totough environmental problems. The Institute’s unparalleled research and highly respected publicationsinform the public debate and build the institutionsneeded to advance sustainable development.NEPA SUCCESS STORIES 1
forewordIt is not often that one has the opportunity to reviewan experiment in governance with the perspective of40 years of experience. The National EnvironmentalPolicy Act (NEPA), signed into law by PresidentNixon on January 1, 1970, brought about, I think, arevolutionary change in governmental decisionmaking that is important to this day.As President of The Conservation Foundation in1968, I was involved in discussions with SenatorHenry “Scoop” Jackson, Chair of the Senate Committee on Interior and Insular Affairs. These discussions led, among other things, to helping thatCommittee hire Lynton Keith Caldwell to assistin developing the legislation that became NEPA.Professor Caldwell’s contribution was as the principal originator of the concept of the EnvironmentalImpact Statement, which very soon became central toNEPA and its effect on governmental decisions. AfterNEPA’s enactment, President Nixon asked me to bethe first chairman of the Council on EnvironmentalQuality. We at CEQ soon set about familiarizingfederal agencies with their new responsibilities—toidentify environmental impacts of their actions andto consider reasonable alternatives to their proposals.It is fair to say that NEPA brought the environmentfront and center to federal agencies, and that this canbe deemed a success brought about, in no small part,by the many federal employees and citizens who haveapplied the law over these decades. It also openedup the federal decision making process. No longercould federal agencies say “we know best” and makedecisions without taking environmental consequences into account. Nor could they simply pick oneoutcome or project and deem all others unworthy ofconsideration. NEPA democratized decisionmaking.It recognized that citizens, local and state governments, Indian tribes, corporations, and other federalagencies have a stake in government actions—andoften unique knowledge of hazards, consequences,and alternatives that can produce better decisions.During CEQ’s early days, there were two particularlydramatic examples of the effectiveness of the environmental analysis process—the Tocks Island Dam andthe Cross-Florida Barge Canal.Tocks Island was an Army Corps of Engineers projectthat involved damming the Delaware River at theDelaware Water Gap, creating a 37-mile long lake. InApril 1971, we returned its EIS for the project to theCorps stating that it had inadequately addressed theproblem of rapid eutrophication of the lake resultingfrom the runoff of agricultural wastes from the fourneighboring states. The Corps’ reply was totally inadequate, simply assuring CEQ that the states involvedwould address the problem. Finally, the Corps withdrew the project, the Congress removed the moneyfor the project and it was dead. Never once did theWhite House interfere in the slightest with CEQ’smanagement of the process.The Cross-Florida Barge Canal was also an ArmyCorps of Engineers project. Construction had gottenunderway in 1964 with the approval of PresidentKennedy. CEQ studied the project and concludedthat the potential damage to the ecology of northernFlorida far outweighed any potential benefits. TheWhite House gave us full support and, based on ourrecommendation, President Nixon on January 19,1971, ordered a halt to further construction on theproject, effectively killing it—all of this despite theunanimous opposition of the entire Florida congressional delegation. While the Cross-Florida BridgeCanal project did not technically involve the EISprocess, it demonstrated most effectively the potentialpower of environmental analysis in decisionmaking.1This brief publication by the Environmental Law Institute, the Grand Canyon Trust, and the PartnershipProject shows just how this transformation in government decisionmaking has affected governance for1 For a more detailed discussion of both the Tocks Island and Cross-Florida BargeCanal projects, see Russell E. Train, Politics, Pollution, and Pandas, an EnvironmentalMemoir, pp. 88-93 (2003).NEPA SUCCESS STORIES 3
the better. The case studies that follow use ordinarygovernment decisions from various federal agencies toshow that NEPA matters. These quiet NEPA successstories look not to celebrated environmental litigationcollected elsewhere, but more fundamentally examinehow public involvement and careful consideration ofalternatives has produced better outcomes—for theagencies themselves, for the nation, and for the human environment.NEPA is America’s most-imitated environmentallegislation around the globe. What we launched in1970 has become a contribution to the planet not4NEPA Success Storiesless than to our citizenry. As this publication shows,NEPA’s legacy is that what the people know has greatvalue to a government that seeks their knowledge andtakes it seriously.Russell E. TrainWashington, D.C.August 2010
inTroduCTion:reCoGnizinG nePa’s value To The ameriCan PeoPleThe National Environmental Policy Act (NEPA)is often characterized as an environmental impactreview law, and it is that – but it is more than that.It is a law that has made informed decisionmakingabout the environment a key component of everymajor federal action or approval. NEPA also enliststhe participation of the public in sharing its wisdomand knowledge to assist federal agencies in makinginformed decisions that seek to improve rather thandegrade the environment.NEPA established the process by which federal agencies must systematically consider the environmentaland health and safety consequences of choosing oneoption over alternatives, and enables agencies toidentify particular options that could reduce, mitigate, or eliminate significant environmental impacts.The NEPA process derives its power and usefulnessfrom the way in which it provides other agencies,tribes, local governments, independent scientists,companies, and citizens an opportunity to activelyparticipate in and contribute to these considerations.This publication recognizes the 40th anniversaryof NEPA. In 1969, Senator Henry M. Jackson ofWashington introduced S. 1075, a bill intended toarticulate a national policy to include the environment in government actions. Lynton K. Caldwell,who is considered one of the principal architectsof NEPA, was working as a consultant to SenatorJackson, who was head of the Senate Interior andInsular Affairs Committee at the time. ProfessorCaldwell’s staff report following a Senate hearing wasinstrumental in laying the groundwork for creatinga “system” to ensure that relevant information wouldbe considered by governmental decisionmakers. Thekey to that system was an “action-forcing mechanism”—what became in the final legislation therequirement fora detailed statement by the responsible official on(i) the environmental impact of the proposed action, (ii) any adverse environmental effects whichcannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action,(iv) the relationship between local short-term usesof man’s environment and the maintenance andenhancement of long-term productivity, and (v)any irreversible and irretrievable commitments ofresources which would be involved in the proposedaction should it be implemented. NEPA §102, 42U.S.C. §4332(2)(C).Senator Edmund Muskie of Maine insisted on requiring that federal, state, and local agencies consult withone another and provide public disclosure throughout the process. The resulting “environmental impactstatement” requirements and related provisions weredesigned to ensure rigorous consideration of the national environmental policy by agencies throughoutthe federal government. NEPA passed both houses ofCongress by large bipartisan majorities.Senator Jackson described the importance of thisprocess in a floor statement just before passage ofthe law:The basic principle of this policy is that we muststrive in all that we do to achieve a standard ofexcellence in man’s relationships to his physicalsurroundings. If there are to be departures from thisstandard of excellence they should be exceptions tothe rule and the policy. And as exceptions they willhave to be justified in light of the public scrutinyas required by Section 102. 115 Cong. Rec. 40416(Dec. 20, 1969).On January 1, 1970, President Nixon signed NEPAinto law and launched the “environmental decade”of the 1970s. The influence of NEPA has extendedfar beyond that decade and has changed governmental decisionmaking in fundamental ways for thebetter. In a 1970 Executive Order, President Nixondirected the Council on Environmental Quality(CEQ) to prepare guidelines for federal agencyimplementation. The CEQ published several sets ofguidelines that, along with a number of judicial deci-NEPA SUCCESS STORIES 5
sions, influenced agency practice. In 1977, PresidentCarter issued an Executive Order directing CEQto prepare regulations for the implementation ofNEPA. These regulations were informed by agencies’experiences with NEPA over the preceding years andreflect a considered approach to make NEPA an integral part of the decisionmaking process. As statedin the regulations:Ultimately, of course, it is not better documentsbut better decisions that count. NEPA’s purposeis not to generate paperwork—even excellentpaperwork—but to foster excellent action. TheNEPA process is intended to help public officialsmake decisions that are based on understanding ofenvironmental consequences, and take actions thatprotect, restore, and enhance the environment. 40C.F.R. § 1500.1(c).nePa Recognizes ThaT When The Public andFedeRal exPeRTs WoRk TogeTheR, beTTeR decisions aRe MadeNEPA recognizes that the public can make animportant contribution by providing information,perspective and, in some cases, unique expertiseto assist the many public servants and experts whoultimately make decisions affecting the environment.NEPA and its implementing regulations requiregovernment officials to consider the recommendations of other government entities and countlesscitizens, who have reasonable solutions or alternative approaches that may work better. It requires thegovernment to address environmental issues andalternatives that its own employees or advisers mayhave overlooked. It requires the agencies to seekout and encourage public awareness of actions andengage the public in the process.For example, NEPA regulations provide for publicparticipation in scoping, a process that determineswhat issues should be addressed related to a proposed action. NEPA also provides for public review and comment on draft environmental impactstatements and authorizes agencies to seek publiccomment on environmental assessments. Federalagencies are required to respond to all substantive6NEPA Success Storiescomments, either by making appropriate adjustments in their analysis or by explaining why thecomments do not warrant further agency response.The result of these regulations is that alternatives areconsidered that government officials may not haveidentified on their own, that data are discoveredthat government agencies may not have otherwiseidentified, and that environmental issues are studiedthat government agencies may not have identifiedor studied. Mitigation measures are also identifiedand may be implemented, thus minimizing environmental impacts and improving public acceptance ofthe proposal. In other words, because of NEPA, baddecisions have sometimes been avoided and gooddecisions often have been made better.Public PaRTiciPaTion Really MaTTeRsPublic participation has in many cases made a realdifference. For example, in numerous cases, portionsof or entire NEPA alternatives proposed by individuals, municipalities, tribes, organizations and othershave been selected by federal agencies as a result ofthe NEPA review. These alternatives have related toland management, roads and infrastructure, use ofpesticides, disposal of radionuclides and management of genetically modified organisms, amongother areas of interest.In other cases, the public has identified errors in theunderlying data or analysis. For example, in 2009 a1500-page draft EIS carefully prepared over severalyears by the Corps of Engineers with the assistanceof several state agencies was found by a citizen commenter to contain mathematical errors that substantially understated the risk profile of introducing nonnative oysters into the Chesapeake Bay. The citizen,a retired test pilot, delved into the tables and modelsused by the lead agency and its cooperators. Theagency had inadvertently underestimated the risk ofcertain alternatives by several orders of magnitude.This citizen involvement led to a revision in the finalEIS, and ultimately a decision that the risk was toogreat to approve the proposed action.
nePa RequiRes The goveRnMenT To exPlain iTselFThe NEPA regulations’ requirements for considering and providing responses to comments have beenupheld in court decisions noting that a primary objective of NEPA is informed decisionmaking. Morethan thirty years ago, the U.S. Court of Appeals forthe District of Columbia Circuit observed:NEPA was intended to ensure that decisions aboutfederal actions would be made only after responsibledecisionmakers had fully adverted to environmentalconsequences of the actions . Thus, the harmwith which courts must be concerned in NEPAcases is not, strictly speaking, harm to the environment, but rather the failure of decision-makers totake environmental factors into account in the waythat NEPA mandates. Jones v. District of ColumbiaRedev. Land Agency, 499 F.2d 502, 513 (D.C. Cir.1974), cert. denied, 423 U.S. 937 (1975).NEPA thus imposes a standard of accountability thatis somewhat different, and in some ways a higherstandard, than that of notice and comment rulemaking under the Administrative Procedures Act(APA). The APA focuses on the final decisions andrequires that the final decision not be “arbitrary andcapricious” or otherwise not in accordance with law.In contrast, NEPA focuses on the decisionmakingprocess and imposes on federal officials a duty to explain which environmental issues are addressed andwhy certain alternatives are not being considered.The duty to engage in an appropriate procedure fordecisionmaking exists independently of whether theultimate decision can be justified.The governmental agency must also respond to allsubstantive comments by members of the public ondraft environmental impact statements. The agencyhas to consider information provided by the public on its merits – and explain what changes in itsanalysis were made as a result or why no changeswere warranted.Judicial RevieW has Played an iMPoRTanT Role innePa’s successThe prospect of judicial review helps ensure that thefederal agencies have appropriately implementedNEPA procedures. Perhaps more importantly forthe typical NEPA process, the prospect of litigationhas, in some cases, enabled federal officials withinagencies to convince their colleagues and supervisorsthat particular information is really needed or that asuperficially less attractive alternative deserves a moresubstantial look.There have been relatively few cases challengingagency decisions on NEPA grounds. Typically therehave been fewer than 100 per year nationwide in thelast decade, even though the NEPA review processis applied to 50,000-70,000 government actionseach year and tens of thousands of actions have beenclassified as exempt from revie
4 NEPA Success Stories the better. The case studies that follow use ordinary government decisions from various federal agencies to show that NEPA matters. These quiet NEPA success stories look not to celebrated environmental litigation collected elsewhere, but more fundamentally ex
Executive Order 13514 (federal leadership in Environmental, Energy, and Economic Performance) Executive Order 13112 (Invasive Species) NEPA Umbrella. D-5. D-6 NEPA Purpose CEQ's NEPA regulations at 40 CFR 1500.1(c) state: Ultimately, of course, it is not better documents but
CEQ and the California Governor’s Office of Planning and Research (OPR) developed this handbook to provide advisory guidance on conducting joint NEPA and CEQA review processes. The CEQ oversees Federal agency implementation of NEPA, which includes writing the CEQ NEPA Regulations. 1. and preparing guidance and handbooks for Federal agencies .
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Interim NEPA Guidance Projects – Section One Introduction. The purpose of this Department of Veterans Affairs Interim NEPA Guidance(Interim Guidance) is to explain the requirements for environmental planning and how the pr
GDOT Environmental Procedures Manual [1] NEPA Documentation CHAPTER III - National Environmental Policy Act (NEPA) DOCUMENTATION 1.0 Overview An increase in environmental awareness in the 1960s brought about concern for the pressure that people and development were
National Environmental Policy Act (NEPA) Basics & New Council on Environmental Quality (CEQ) Guidance . Updates to Effects Analysis . (CEQ) Guidance presentation Author: BLM Alaska Subject: Alaska Resource Advisory Council Keywords: National, Environmental, Policy, Act, NEPA, Alaska, BLM Created Date: 3/10/2021 3:20:27 PM .
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