(Courthouse News) Debate over the Trump administration’s goal of reforming environmental permitting on public lands was renewed Wednesday as lawmakers divided sharply over the effectiveness of the National Environmental Policy Act.
The National Environmental Policy Act, or NEPA, is a mandate which forces federal agencies to review what impact development has on public lands.
NEPA was established in 1970 by President Richard Nixon and through it, so too was the White House Council on Environmental Quality. The council was created to streamline the regulatory process, making it easier to approve or deny projects while monitoring air and water pollution.
In February, President Donald Trump proposed major changes to NEPA as a part of his outlinefor rebuilding U.S. infrastructure. It suggested faster turnaround times for review periods – no longer than 2 years – and placed limits on the Environmental Protection Agency’s ability to review a project’s impact.
On Wednesday, Republican members of the House Natural Resource Committee echoed criticism of NEPA. Committee’s chairman Rep. Rob Bishop, R-Utah, referred to NEPA as a “weaponized tool” used by environmentalists and activists to push developers off permits and languish in courts.
Not so, said Rep. Raul Grijalva of Arizona, the committee’s ranking Democrat.
“The silencers and armor piercing bullets [Republicans] tried to sneak into sportsman legislation this week were indeed weapons. Firearms extremists use to take over refuges in Oregon, those are real weapons. NEPA is not a weapon, it’s a shield,” he said.
In the 48 years since NEPA was enacted, it has served as a conduit between the public and the federal government, explained Rep. Alan Lowenthal, D-Calif.
When a developer applies for a permit under NEPA, the policy mandates the government ask for public input as well as experts who can attest to a project’s effect on a community.
“Our district includes what locals used to call ‘diesel death zone,’ neighborhoods of low income and minority communities that border the busiest port complex in the nation. Historically, they’ve had above average rates of asthma, cancer and other issues,” Lowenthal said.
NEPA has been “the tool” communities have used for weighing in on major projects before they’re finalized.
“We can’t do away with one of the central tools to protecting public health,” he said.
But its effectiveness is the very thing Republican committee members are challenging.
NEPA, according to Rep. Scott Tipton, R-Colo., doesn’t fulfill its “real mission” when it acts as a drag for developers who sometimes wait years for environmental impact surveys to finish.
“There’s one company in my district that is going through its ninth year of [filing for NEPA approval],” Tipton said.”As soon as they’re about to finish, another lawsuit is filed against them. Then another and another.”
Instances like this are outliers and not representative of the average, according to Horst Greczmiel, the former associate director of NEPA oversight on the Council for Environmental Quality under President Bill Clinton.
When applying for a permit, a developer falls into one of three categories: categorical exclusion, environmental assessment or environmental impact study.
Ninety-five percent of all applicants fall under categorical exclusion which means their project is not believed to carry a significant environmental impact and no review is needed.
Environmental assessment is applied to only 4 percent of all NEPA reviews.
An environmental impact study is proposed when a developer’s project is likely to have an impact.
Those account for just 1 percent of all NEPA reviews, or about 200 cases annually.
Delays are not because of a cumbersome review process, Greczmiel said, but because of lackluster funding, frequent design changes to a project, local opposition or delays in non-NEPA related policies.
“Failing to provide training for people that prepare and oversee NEPA also leads to delays,” he said.
Allegations that NEPA gums up the courts may also be an overstatement.
“Most litigation is won by agencies and a good number of cases find that plaintiffs’ challenges have merit. In 2016, there were only 100 lawsuits. [That same year] 30 percent of appellate cases found for plaintiff,” he said.
Setting a one size, fits all limitation on NEPA won’t solve the problem, argued Laura Watt, professor of geography, environment and planning at Sonoma State University.
Fixing NEPA is a matter of finding staff to work on environmental review. Cutbacks at the EPA and to the Council on Environmental Quality are a major cause for delays. Making assessments “more legible,” for the public, would also quicken the process.
“Agencies must reach out to others and to affected communities to collaborate in the process,” she said. “The more it can be collaborative – it helps avoid lawsuits.”