Is NEPA supposed to be democratic?

This article on the Desert Renewable Energy Conservation Plan raises this question based on a rather extreme case of intimidating government documents.  But it comes up on much simpler NEPA efforts where the agency states that the NEPA process is not about the number of “votes” received on a project.  My legalistic response is that NEPA is about getting the facts right to form opinions, not about the opinions themselves, and that opinions can be offered at any time based on any set of facts (or lack thereof).  But NEPA is also about providing both useable information and sufficient time for both the decision-maker and the public to understand it before a decision is made.

(I don’t know if there are many NEPA-nerds on this blog, and I don’t remember seeing any previous discussions, but I saw it was a ‘category.’)

12 Comments

  1. There has been talk from the courts about the perceived need for the public to be able to understand the science behind projects. I also think that some Judges don’t understand the science, either. The “deference” seems to work well, for me but, in the interest of transparency, I DO want the public to understand the reasons for making many of the compromises and balancing the harms. I doubt that NEPA documents could be “dumbed-down” enough, to accommodate all Americans. Again, the three “C-words” is not a fix-all for the Forest Service and timber interests. We cannot skip collaboration and consensus on the way to compromise. And that takes time and trust. I think it is working but, we need to have patience and persistence.

  2. To a fellow NEPA nerd:

    NEPA requires that high quality information be made available to the public prior to decisions being made. The purpose of this is to encourage and facilitate public involvement in decisions that affect the environment.
    NEPA also requires that environmental documents be concise, clear and to the point and concentrate on the issues that are truly significant. A point I would like to make here is that significant issues can only be accurately defined and understood by an examination of not only the the facts of the matter (science) but also public values (opinions).

    Many people erroneously interpret the requirements of NEPA to be limited to adequate documentation of agency decisions. The ultimate purpose of NEPA is far broader; and was intended to help agencies “make better decisions” and “enhance, protect and restore the environment.”

    So bottom line: clear, understandable documents, meaningful public involvement, and ultimately better decisions.:)

    Here some relevant sections of the 1500 CEQ regs”

    1500.1 “Purpose”
    (b) NEPA procedures must insure that environmental information is available to public
    officials and citizens before decisions are made and before actions are taken. The information
    must be of high quality. Accurate scientific analysis, expert agency comments, and public
    scrutiny are essential to implementing NEPA. Most important, NEPA documents must concentrate
    on the issues that are truly significant to the action in question, rather than amassing
    needless detail.
    (c) Ultimately, of course, it is not better documents but better decisions that count. NEPA’s
    purpose is not to generate paperwork—even excellent paperwork—but to foster excellent
    action. The NEPA process is intended to help public officials make decisions that are based on
    understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. These regulations provide the direction to achieve this purpose.

    NEPA under 1500.2 Policy also states:

    (b) Implement procedures to make the NEPA process more useful to decisionmakers and the
    public; to reduce paperwork and the accumulation of extraneous background data; and to
    emphasize real environmental issues and alternatives. Environmental impact statements shall
    be concise, clear, and to the point, and shall be supported by evidence that agencies have made
    the necessary environmental analyses.
    (c) Integrate the requirements of NEPA with other planning and environmental review procedures
    required by law or by agency practice so that all such procedures run concurrently rather than consecutively.
    (d) Encourage and facilitate public involvement in decisions which affect the quality of the
    human environment.
    (e) Use the NEPA process to identify and assess the reasonable alternatives to proposed
    actions that will avoid or minimize adverse effects of these actions upon the quality of the
    human environment.
    (f) Use all practicable means, consistent with the requirements of the Act and other essential
    considerations of national policy, to restore and enhance the quality of the human environment
    and avoid or minimize any possible adverse effects of their actions upon the quality of the
    human environment.

  3. I’m a bit of a NEPA nerd, so I’ll take a poke at this. It seems the contention of the article is that the DRECP is so large, and impenetrable, that the democratic process is hijacked — because to the general public — the document is virtually written in Greek. To which I reply: this is why we have lawyers. Really, when was the last time anyone on here sat down and read through an EA or EIS in its entirety? I’ve taken a fine toothed comb to a couple, and have survived to exclaim — its work! So who is reading them? I am almost certain that most individuals who comment on NEPA project proposals have not given the documents the rigorous attention they deserve before they comment. Again, this is why we have lawyers. In this context, they work for the Sierra Club, CBD, AWR, etc., etc., etc. The process involves trust. Not democracy. Those that care about the environment who do not comment on proposed NEPA projects are using their democratic right to “trust” that the agency is doing the right thing. Those that choose to comment, who are not the environmental lawyers (or similarly trained) are choosing to trust the environmental watchdogs. That there is some population of Americans out there who are champing at the bit to comment on a NEPA project is absurd. The process has never been open to the layperson. It has never been “democratic.” It is bureaucratic.

  4. I have been concerned for years that thousands of person hours are spent preparing NEPA documents based on the knowledge from education and scientific information from text books rather than site specific knowledge acquired by direct observation of the on-the-ground conditions and relationships where the proposed activity will occur. I am also concerned we do not adequately search out the potentially effected interests and dialog with them on the goals and objectives. We seem to debate the pros and cons of how to do something rather than what our desired future condition, for the area in question, is. We don’t have to have complete agreement only informed consent. If we start with something we can agree on, like what we want the area to look like at some point in the future, we might have a chance to reach informed consent. There is no such thing as “the silent majority”, only those who are not initially aware that they may be effected. It is the responsibility of the decision maker to search out the potentially effected interests and inform them.

    • The Forest Service’s efforts to thwart the serial litigators seem to marginalize a regular citizen’s often misinformed opinions, as it should. The locals, who bear most of the impacts, should be very specific in their criticism of projects. Those specifics are much harder to defend, and those informed comments that deal with realities should carry more weight, for both sides. Long ago, I was able to look at the handful of written comments on the A-Rock Fire Salvage. It took about an hour to carefully read each letter. Imagine the tedium and costs it takes to go through all the comments today! I do LOVE how certain form letter comments can all be tossed into the “circular file”, after “careful consideration”. *smirk*

  5. I agree that NEPA is intended to collect facts to inform decisions, but among the relevant facts, are public sentiments yea-or-nay about a proposal.

    It is true that NEPA is not about voting but comments supporting or opposing a proposal can help the decision-maker understand public views which should factor into a decision whether the proposal is in the public interest.

  6. I guess I’ve also become kind of NEPA-cynic. I tend to agree with Eric that the documents themselves are often used by the public (its lawyers) to figure out whether they could win in court, because they really disagree with the whole idea. That suggests to me that the public needs to be engaged at the “whole idea” stage – the “goals and objectives” (as Brian said) or the “purpose and need” in NEPA terms.

    For forest planning, there is now a step that requires documentation of the “preliminary need to change the existing plan,” and a requirement to include the public in developing its proposed action. The thought behind this part of the planning rule was that it would start the process with a greater level of agreement about the direction to go, so that subsequent NEPA effects analysis and disclosure would be more focused on a realistic range of alternatives and would be more meaningful to the decision.

    The forest plan would then define the purpose and need for project decisions by providing the desired conditions that projects should contribute to. That still leaves a key question to be answered: where should projects be initiated next? I think including the public in answering that question would lead to less public opposition (and scrutiny of the project NEPA documents). (Even those who disagree with the forest plan decision for an area would still have an opportunity to influence its priority for management.) At that point, the NEPA exercise can reasonably be focused on the “how to” questions.

    • This just goes to show that the public is fickle and easily fooled. We’re still stuck in the Consensus phase but, at least we’ve made it into the Collaboration Phase. The public needs more education before their collective opinions have any substance to them. Example; much of the public still thinks that wildfires are “natural and beneficial”. Rarely is this actually true, in our National Forests. Then again, if you polled the public about wildfire costs, I’m sure they would be in favor of putting people in the woods to work at reducing wildfire intensities and impacts. Clearly, the public needs more education on forest issues.

    • Bob, the public is for all intents and purposes a nonparticipant. It’s not rational for them. Example being the Roadless EIS. That thing was 1400 pages if I remember right, endless repetition of bureaucratinese doublespeak. Reading slowly and carefully (looking for a legal hook, of course) it took me two solid weeks of spare time, a hundred pages at a pop. It was so stultifying, so numbing I was just burnt to a crisp when I finally reach the end, and really didn’t find anything significant except a statement on “unroading” in the appendix.
      Tell me, how many members of the public, not paid to suffer through this stuff, with families, jobs, other obligations, would be able to rationally justify wasting so much time on an exercise which, in the end, is utterly and completely wasteful?

      • Yup. The democracy argument is nothing but rhetoric. In a perfect world, it would be nice if there were enough “public” participation on any given project to make it meaningful. But in my experience, the “public” 9 times out of ten consists of a smattering of local property owners, and a heavy serving of environmental groups.

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