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Environmental Magna Carta under siege

Page history last edited by PBworks 12 years, 11 months ago

Environmental Science & Technology

- a publication of the American Chemical Society -

November 28, 2007




Environmental Magna Carta under siege


In an attempt to curtail environmental assessments for oil exploration, timber

extraction, and grazing on public lands, the Bush Administration is sidestepping one of the

nation's first environmental laws.




Environmental assessment in the U.S. was enshrined in law for the first time when

President Richard Nixon signed the National Environmental Policy Act (NEPA) on January 1,1970. Since then, however, the U.S. has slowly cast aside its role as a leader in the field of environmental assessments, as successive administrations have chipped away at the scope of NEPA, experts say. The cuts have reached a crescendo with President George W. Bush's administration, and proponents of these assessments worry that pressure to develop natural resources with little oversight of the consequences will lead to an unsustainable future for the U.S.


NEPA was born shortly after the news coverage in 1969 of the Santa Barbara, Calif., oil spill and Ohio's Cuyahoga River on fire. The two events captured the public's attention and inspired Congress to create tough federal laws, says Bob Dreher, an attorney with Defenders of Wildlife, an environmental group. The idea behind NEPA, also known as the Magna Carta of U.S. environmental policy, is simple: federal agencies should evaluate and disclose the environmental impacts of major projects before they are launched.


The steps to whittle away NEPA's protections have been taken by Congress as well as by federal agencies that have issued rules, says Nick Yost, who served from 1977 to 1981 as general counsel at the White House Council on Environmental Quality (CEQ), which administers NEPA. Yost was also lead author of the NEPA regulations. For example, the U.S. Department of Homeland Security recently invoked Section 102 of the Real ID Act of 2005 to waive NEPA regulations for construction of the U.S.-Mexico border fence. The 10-15-foot-high metal wall will run through sensitive habitats such as the San Pedro Conservation Area in Arizona, plugging up seasonal streams and wildlife corridors, Dreher explains. Defenders of Wildlife and the Sierra Club oppose waiving NEPA and other environmental laws to build the border fence, and have filed a lawsuit in U.S. district court challenging it as unconstitutional.


From 2003 to 2007, several other laws have been passed that allow agencies to waive NEPA

regulations, expand categorical exclusions, or eliminate the consideration of alternatives.

These include the 2003 Healthy Forests Restoration Act and the Energy Policy Act of

2005. By exempting some types of tree cutting and oil and gas development from NEPA review, these laws could boost growth of invasive species and erosion, among other environmental effects, according to Bill Schlesinger, president of the Institute of Ecosystem Studies. In addition, former Rep. Richard Pombo (R-CA) led a very public attack (PDF: 275KB) on NEPA that was sidetracked once Pombo lost his re-election campaign in 2006, Yost adds.


Federal actions such as these have dangerous long-term consequences, because as resources become more scarce, NEPA becomes more and more essential, says Oliver Houck, a professor of environmental law at Tulane University. "The fact is, the attack on NEPA has come, chronically, from a relatively small group of commodity users -- timber companies, highway builder s-- who simply oppose having the public and environmentalists get in the way of their plans and programs," Houck maintains.


For major federal projects such as dams, highways, and oil and gas wells, NEPA requires a

brief assessment of environmental impacts. If a project's impacts are significant, agencies must produce a more detailed environmental impact statement (EIS), which includes a list of alternative approaches, such as a new project location or construction changes. NEPA also requires agencies to involve the public from the beginning of the process.



"NEPA is revolutionary because it opened the door for the public into agencies in real time, and that's why more than 100 countries around the world adopted the process," says Bob Smythe, a CEQ administrator during the administration of President Gerald Ford.


Improved federal decision making under NEPA led the U.S. Department of Energy (DOE) to cancel new reactors that would produce tritium. The EIS allowed DOE to evaluate alternative technologies, such as particle acceleration and the use of existing commercial reactors, leading the department to avoid building enormously expensive new tritium reactors at its Savannah River Site in Aiken, S.C., in the early 1990s, Dreher says.


NEPA-driven improvements in a land management plan for the Los Alamos National Laboratory helped to prevent the release of radiation when the nuclear lab was swept by wildfire in May 2000, he adds.


But NEPA requirements can consume inordinate amounts of time and money for certain industries and sometimes delay beneficial projects, says John Martin, a lawyer at Patton Boggs, a law firm representing industry clients. An EIS takes at least 3.5 years to complete and can run up to several thousand pages.


However, NEPA regulations suggest a 150-page limit for an EIS, which normally consumes only 0.5-1.5% of project costs, Smythe says. "The current Bush Administration has really gone after NEPA in an effort to avoid the inconvenient and time-consuming responsibility for consulting with the public before they do things," charges Smythe.


Further legislative assaults on NEPA aren't possible in today's Democrat-controlled Congress, according to a spokesperson for Rep. Raúl Grijalva (D-AZ). This leaves the White House to focus on intensifying the use of categorical exclusions, which exempt broad categories of action from NEPA, such as the August 26 Bureau of Land Management announcement that grazing permits and some oil and gas activities are excluded from NEPA. Plans are afoot in Congress to reverse the weakening of NEPA and prevent it from being undermined further, Grijalva's spokesperson says.


But close observers of NEPA remain concerned that the law is vulnerable to thoughtless efforts in Congress to streamline it. When drafting the law in 1969, Congress urged the government to act in a way that preserves natural resources.


"Unfortunately, the reasons why Congress originally adopted NEPA have been forgotten, so

that most members of the public, and even most policy makers, fail to appreciate what is at

stake when restrictions are proposed," Dreher says.


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