NEPA Taskforce Report from 2005: Has Anything Changed?

Someone wrote and asked the question, has anything in NEPATaskForcenepareport_finaldraft122105-1 report changed? What do you think?

It seems to me that the report somewhat downplays the importance of case law compared to the statute. Here’s how it looks to me.

1. There is the statute, simple and beautiful.
2. There are the CEQ regs, which mostly lay out rules for doing documents. They’re OK. Like defining “major federal action.” CEQ (regardless of individuals there) always seems to think that things are fine,and if agency practitioners would just do things right, there would be no problems with NEPA.
3. But then there are the Courts, who make their own (dare I say sometimes arbitrary and capricious?) decisions about what the statute and regs really mean. I think many folks don’t have problems with 1 or 2, but it’s 3 that seems to drift from 1 and 2. Even though we’re not lawyers we can still have opinions about what people meant when they wrote the statute and the regulations.

Anyway…there is also 4) in part to clarify for courts what was meant, the FS wrote its own NEPA regs.

It seemed to me that the discussion in the Taskforce report was a bit as if only 1 and 2 exist.

A question about this report has to do with the idea “there aren’t that many NEPA cases.” That may be true in some narrow sense. But there are plenty of cases that throw NFMA, NEPA, and ESA into the complaint. So far I haven’t figures out how we have discussed all the different litigated projects we have here on this blog, and yet there aren’t that many NEPA cases. Maybe someone can help explain.

Another question is I was always told NEPA is a procedural statute. It reads like a procedural statute. I didn’t know it was debatable or open to anyone’s interpretation. I thought it either was or wasn’t. That seems mysterious. But it reminded me of Sally Fairfax’s critique (published in Science (???)) in 78. Look what she has to say about paperwork and EIS’s. Remarkably astute, in my view. I don’t have access to Science but somehow in my old files I found here some back and forth between her and someone who disagreed, in which she summarizes some of her arguments.

If Professor Fairfax’s arguments are still true, that’s 25 years ago.

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