State “primacy” for NEPA documents

Second maybe to only Utah for creative ways to privatize federal lands, the State of Wyoming has come up with another scheme. This article reports on “a conversation between Gov. Mark Gordon and Secretary of the Interior David Bernhardt about how Wyoming could assume a role that’s now the purview of federal agencies.”

“The notion here would be could the state have more of a primary role in establishing the beginning steps of [the] NEPA [process],” Gordon told WyoFile in late March. “In other words, could the state organize the NEPA effort and kind of walk through it and deliver [results]” to a federal agency.

Following Gordon’s lead, the Wyoming Legislature expects to study over the next nine months “state primacy and oversight of environmental assessments and environmental impact statements …”

“The Committee would study enacting a legislative framework to assert primacy over these [environmental impact] assessments,” the Legislature’s assignment reads. The goal is “a memorandum of understanding with the Department of the Interior to assume the responsibilities of these assessments that are currently required under the National Environmental Policy Act,” state documents say.

The states are already given a front row seat in federal NEPA processes, and the federal government can contract for NEPA services; it is the apparently new concept of “primacy” that is going to run into legal problems. It’s not clear from the examples provided whether the issue is decision-making authority, or to get “more of this work done in a timely manner.” If it’s the latter, I’m sure the feds would be happy to have state volunteers or state dollars (but isn’t this the focus of the “Good Neighbor” program?), though increased legal scrutiny of potentially biased NEPA products should be expected. If “primacy” means “the final word” on anything in a NEPA product they should probably spend their committee time elsewhere (like Congress).



14 thoughts on “State “primacy” for NEPA documents”

  1. This almost sounds like what some Good Neighbor Projects are doing – the state will do the NEPA and lay out the timber sale and then implement it.

  2. What appears to be happening here is that Wyoming is taking the administration up on its goal of increasing federalism and returning powers back to the state and local levels to the maximum extent possible. An exercise of the Tenth Amendment’s reservation of powers principle.

    Because the federal government has not reserved the power for performing these environmental impact evaluations to itself, excluding the states from present or future exercise of the power to do so, there’s room for a discussion and potential sharing of responsibility for the evaluations.

    Many state and local governments have legitimate concerns that federal agencies don’t do an adequate job of complying with NEPA’s baseline mandate to balance the needs of the natural environment with the needs of the human environment. Wyoming apparently wants to address that concern in a more meaningful manner than they may believe the federal agencies have.

    When the Founders were hammering out what this nation should be and become, they positioned the states as the laboratories of our “little r” republican form of government. Lock-step uniformity and subservience to the federal government was the last thing they wanted to see.

    Wyoming is expressing a desire and willingness to step up to that plate and determine whether or not their proposed approach is a reasonable and viable one.

    What’s wrong with putting an experiment together and putting the MOUs and MOAs in place to provide a few sideboards and seeing how their proposal works on the ground?

  3. A couple of thoughts:
    Jon wrote “The states are already given a front row seat in federal NEPA processes…”

    I suppose I should clarify what Jon means by “front row seat,” but I don’t think many Western public lands states would use this term. Many, I suspect, would say they often feel they are stuck in the back seat.

    It would be nice if this otherwise excellent blog had regular posters who could offer a State’s perspective.

    Federal land planners may disagree, but I think States need a more effective way to participate in the planning process. I have witnessed planners develop alternatives that roughly mirror what the conservation stakeholders want. I would support any method that allowed a “State Alternative” to be part on the NEPA analysis.

  4. So – maybe the states should ask federal land managers to take a primary role in planning for projects on state lands?

    Cooperation, shared stewardship, and “all lands” planning are excellent goals, but let’s remember that federal land managers are working for the interests of the entire nation, not just a single state. At times, that requires a slightly different perspective.

  5. Jon, your wrote “Second maybe to only Utah for creative ways to privatize federal lands, the State of Wyoming has come up with another scheme.” Seems kind of snarky.. has anyone in Utah actually done anything to “privatize” federal lands. What exactly does that mean?

    What makes something a “scheme”- the fact that it’s an approach you don’t agree with? I don’t mean to pick on you, but sometimes it’s hard to see what people really mean through the snark.

    Anyway, I have worked with people (human beings) who work for the State of Wyoming and gone to many public meetings with Wyoming residents. My observation is that individuals within the state and state government can be prickly about how feds do their work. Sometimes their prickliness is justified (IMHO). If you look at the federal government as it operates in their state, there can be plenty to criticize (as the feds might criticize state folks). These tensions are natural.

    Now as to the content of the proposal:
    “The Committee would study enacting a legislative framework to assert primacy over these [environmental impact] assessments,” the Legislature’s assignment reads. The goal is “a memorandum of understanding with the Department of the Interior to assume the responsibilities of these assessments that are currently required under the National Environmental Policy Act,” state documents say.”

    Primacy is not a legal term, and I agree with Anonymous (1) (are you the same Anonymous as the later comment?) that the State doing NEPA is not all that different from Good Neighbor Authority, nor ski areas, nor power folks, paying for their own NEPA. I don’t know if Interior is different about that. But BLM decisions are still going through the IBLA and the courts, so any NEPA deficits will show up through that process. I’m really not sure what the problem is.

    As to the “front seat” for making decisions, I agree with Brian that most western states don’t think this. My personal experience is definitely not that (except where it’s required like Roadless) for the Forest Service. Even when we went to the State with BLM about a joint RMP it was pretty much “hey we did this, do you have any major heartburn?” than a “front seat.” That was Colorado. Maybe Montana is different?

    It would be nice if someone would call the folks in Wyoming who proposed this and find out what the issue is that this is a response to. If someone wants to volunteer, you are welcome to say that you are working on a story for The Smokey Wire.

    • For whatever it’s worth, in 2017, Utah Republican congressional Rep Jason Chaffetz introduced House Bill 621 in the U.S. Congress. The bill, which was widely reported, would have required the Interior Secretary to immediately sell off 3.3 million acres of federal public lands managed by the federal Bureau of Land Management.

  6. Yes, that was a Congressperson from Utah. Will the state without “Congresspeople With Bad Ideas that are Unlikely to Go Anywhere” cast the first stone?

    • But Sharon, the 2012 and 2016 platform of the National Republican Party pushed not only for federal land transfers but also encouraged Congress to consider private ownership of pubic lands to be “better used ranching, mining, or forestry.” High Country News had the story.

      Here’s what the official 2012 Platform of the National Republican Party said:

      “Congress should reconsider whether parts of the federal government’s enormous landholdings and control of water in the West could be better used for ranching, mining, or forestry through private ownership… The enduring truth is that people best protect what they own.”

      Also, anyone can do some very simple and quick google searches and come up with plenty of examples of where politicians are calling for privatization of public lands.

      Finally, there’s plenty of evidence that even just the proposed transfer of federal public lands to states is a prelude to privatization. Here’s a great piece on this subject (obtained via a 6.7 second google search) from Dr. Martin Nie, one of the original founders of this blog.

      “Several western states are pursuing the “transfer” of federal lands to state ownership. Groups and politicians are now pushing back and engaging on this issue, partly driven by their fear that the real aim of these initiatives is not state ownership but rather the privatization of public lands. The history, politics, and economics of the state transfer movement explains why this fear is a legitimate one.

      The past is not always prologue, but history is of particular importance in this case. Consider what happened to significant amounts of state trust land that was conveyed to the states by the federal government during the era of land disposals (~1776-1891). Most of the early states receiving granted lands quickly sold them. Western states that were subsequently granted trust lands provided restrictions on their sale, though others liquidated the majority of their lands. Nevada, for example, retains roughly 3,000 acres of its original 2.7 million acre grant. And what about Utah, where the latest rebellion is headquartered? Roughly half of the lands granted to the state have been sold into private ownership.”

      • I do share your concerns, Matthew. Leaderships of State (and local) Governments come and go, and we should consider some of them to be like “Banana Republics”.

        It is mostly the budgets that are limiting how much ‘management’ is being done in our National Forests. There are other bureaucracies that affect the Agency’s performance but, I think they are cop-outs, myself. Rules, laws and policies can be changed by Congress to change what is wrong, and fund what is right.

      • This is an interesting thread so I am starting another post on it. But can you blame today’s Utahns for land sales in the 1800’s? And if Utahns are suspicious of the federal government, could that also be due to historical factors?

  7. Not to distract from the new thread, but “primacy” is indeed a legal term, and one Wyoming is familiar with. It is a concept from SMCRA, and it means exactly what it sounds like: the state has primary control over the subject matter of the statute (for SMCRA, surface mining). The state makes the decisions, and the federal role is limited to granting or withdrawing primacy, which means that bad state decisions often go unchecked because the remedy is so severe. Wyoming knows what primacy means because they have primacy under SMCRA.

    I would ask: who is the state anyway? Don’t most states have conservation minded and recreation focused citizens, not just extractive industry cheerleaders? If the extractive interests dominate the local political conversation, which they usually do, then giving states any independent role at all is essentially letting those interests “double dip.” They’ve already got direct approaches to the land management agencies, and they sit on collaborative groups. Why should we countenance a separate and duplicative “state interest” beyond that? I’m okay with economic uses having a seat at the table, but let’s not pretend that it’s as simple as state=industry.


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