NEPA at 50

From High Country News, Dec. 6 — open access, I think. I’m a subscriber.

NEPA transformed federal land management — and has fallen short

A look back at the ground-breaking legislation on its 50th anniversary.

At the heart of the legislation lay an optimistic belief that economic growth, environmental protection and human welfare might align without sacrifice or rancor. The law highlights the need to “create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.” It clearly takes a long-range view, incorporating tomorrow’s environmental fate into today’s decisions.

These values, though, tend to be forgotten, overshadowed by a procedural hurdle that changed business-as-usual for federal planning and decision-making. Before undertaking “major Federal actions significantly affecting the quality of the human environment” — offering timber sales on federal land, for example, or building an interstate highway — federal agencies and their partners now had to submit “a detailed statement.” That environmental impact statement, or EIS, needed to be interdisciplinary and thorough, detailing any environmental problems likely to result from the proposed project and listing alternatives, including more costly ones. Then, the public was invited to comment. The procedure significantly lengthened and complicated federal land-use planning and politicized it like never before.

Lots to discuss here, and add….

 

 

10 thoughts on “NEPA at 50”

  1. I always challenged co-workers, “if NEPA did not exist, how would the FS make decisions to authorize land management actions?” The quizzical look I would get led me to believe what this article concludes: if NEPA was absent, Government officials would strive to make decisions on their own volition, and if they could do it without involving the public, all the better.

    The fact NEPA does exist sets the foundation for how Government agencies are to implement the law: analyze the environmental effects associated with a proposal to do something, and disclose that analysis with the public. A fairly simple endeavor until you throw human values and biases in the mix. It is not a popularity contest, but it does demonstrate whether our Government is accountable to its citizens.

    Is NEPA broken after all these years? Not really. Could the law/regulations be improved? Perhaps. However, the recent FS proposal to revamp its regulations implementing NEPA show the agency’s willingness to stretch the boundaries of what is publicly tolerable.

    Bottom line for me is that the public MUST have a role and input into how its land is managed by the Government. While the regulated public involvement process under NEPA is not ideal, it is better than allowing Government officials, who think they know best, make less-than- informed decisions.

    Reply
  2. Anthony:

    Re your statement: “Bottom line for me is that the public MUST have a role and input into how its land is managed by the Government. While the regulated public involvement process under NEPA is not ideal, it is better than allowing Government officials, who think they know best, make less-than- informed decisions.”

    There are two sides to every coin so Let’s turn the coin over and speak about the public’s “less-than- informed” knowledge, experience and motive and the resulting poor decisions.

    The public role and input into the NSO fiasco as driven by Gov’t biologist’s emotional appeal to both the public and politicians sure did more harm than good. A presidential edict to come up with a plan in 90 days only made things worse as one of the biologists admitted in an interview years latter that the ‘NSO knowledge base was so poor that they just had to make a guess and go with it’. That was in spite of the fact that the professional foresters on the ground told them that the birds were doing well in plantations. Nobody believed the foresters and apparently didn’t bother to check. To confound the decision, almost everyone saw it as having the side benefit of providing an opportunity to “preserve” significantly more acres of natural old growth forests. What they didn’t realize was that that emphasis on old growth reduced the amount of young growth forests where the NSO food source was richer than in old growth forests. To my knowledge, no one seems to have bothered to see if an age projection of this policy would result in a fatal dearth of old growth forests when a slug of mortality occurred in stands that were way over their natural mortality period and thereby ring a death knell for any surviving NSO’s.

    Several hundred million tax dollars later, all that we know for sure is that the foresters were correct. The last that I saw, the NSO is still in significant decline everywhere but has and continues to survive better than anywhere else in and around those commercial plantations when their daily foraging range includes natural stands. The mix of commercial plantations and natural stands provides greater diversity of stand structure for forage habitat, for protection from bad weather extremes (and probably predators) and they still have access to their preferred nesting habitat when weather allows. It also seems that the importance of edge effect was temporarily out of favor with wildlife biologists in general at that time.

    We must have a balance between what the public wants and professional knowledge based on well validated science. Public input is great but the professionals must have the final word when the public wants to follow a Pied Piper or when there is no established science to support the public will.

    In my humble opinion, for these and other reasons, NEPA has only made things worse.
    No matter how many people agree on a false premise, it is still a falsehood.

    Reply
  3. Here’s some more of the story:
    “But the EIS process with its public input also opened doors to lawsuits, a result as American — and as controversial — as the public lands themselves. Congress had added the EIS procedure to protect the “productive harmony” at the law’s core. But the strategy failed. The year after Nixon signed NEPA, the D.C. Circuit Court declared its goals flexible, but not its procedures: Federal agencies could interpret “productive harmony” however they liked, as long as they filed an EIS. In 1989, in what has become a controlling opinion in Robertson v. Methow Valley Citizens Council, the U.S. Supreme Court went further, declaring that federal agencies did not even have to preserve “productive harmony.” Instead, it found that “NEPA merely prohibits uninformed — rather than unwise — agency action.” In other words, the EIS needed to list all the options, but agencies were not required to choose the best one. ”

    It seems like the author wanted NEPA to be something other than a procedural statute.

    Also no matter how many times it’s written by folks otherwise, CE’s are still NEPA.
    “In the decades since, NEPA’s critics have periodically tried to gut the law further, such as the Trump administration seeking to exempt certain Forest Service projects from its rules. ”

    Finally, this reminds me of the Sally Fairfax paper in Science in 1978 and the letters back and forth. Does anyone have a copy of her original paper? I have a file of the letters.

    Reply
    • More fodder for the discussion: Here’s an excerpt from Rick Tholen’s essay for the book published last year by SAF (which I edited), “How Collaboration Can Help Resolve Process Predicament on National Forests: Examples from Idaho.” Tholen, a retired USFS staffer, is a member of the Idaho Forest Restoration Partnership (IFRP) and the Payette Forest Coalition.

      (The book, “193 Million Acres: Toward a Healthier and More Resilient US Forest Service,” is available at http://www.eforester.org/store. All proceeds go to SAF.)

      For those of us interested in NEPA, Tholen’s chapter is well worth reading.

      ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
      The Conundrum of Environmental Analysis
      Year after year, IFRP workshop participants identify process predicament issues that continue to constrain their ability to ramp up the pace and scale of restoration treatments on national forest lands.

      One repeatedly mentioned challenge is the time required for a collaborative group recommendation to work its way through the Forest Service decisionmaking process and be implemented on the ground. Many factors contribute to these long delays, but one that is repeatedly mentioned is the amount of environmental analysis the agency is required to do, or chooses to do, before restoration actions can begin. Because many collaborative group members are unpaid volunteers, long planning and analysis timeframes can wear thin on their willingness to participate. Although several new categorical exclusions (CEs) have been made available to the agency over the last two decades, most forest restoration projects in Idaho do not qualify because they are either too large or because they are multifaceted and include activities that are beyond the scope of available CEs.

      Although they believe that the processes currently used to comply with the National Environmental Policy Act of 1969 (NEPA) are excessive, Idaho collaborators also believe that NEPA analysis provides value to collaborative group members, in terms of understanding forest conditions, prospects for successful restoration and any potential adverse effects that restoration may cause, and results in improved Forest Service decisions.

      Another challenge often cited at IFRP workshops is the awkwardness of trying to work with the agency in designing restoration projects without running afoul of federal advisory committee laws. Most groups have avoided this potential pitfall by self forming and maintaining business processes that involve Forest Service employees but not as voting members.
      At the same time, these collaborative groups are generally open to new members from the general public and continually must adjust and allow time for new members to come up to speed. Likewise, when local Forest Service employees transition in and out of positions that maintain long-running collaborative efforts, collaboration slows until replacements for retired or promoted employees can come up to speed.

      Other often-mentioned challenges that could fall under the heading of management inefficiencies include the erosion of key nonfire staffing, insufficient funding to implement key restoration activities, and lack of resources to support the business needs of the collaborative groups themselves.

      The Current Situation
      The process predicament report has prompted several attempts to shorten the burdensome analysis process that was developed over many years to comply with NEPA requirements and numerous court decisions. The Healthy Forests Initiative and Healthy Forests Restoration Act of 2003 and the Farm Bill of 2014 provide authorities to the agency to develop fewer alternatives and to apply CEs for certain types of projects. However, these additional authorities are a poor fit for many projects—either because of their landscape scale or their diversity of objectives—that use the agency’s stewardship contracting authority, for example by trading timber for logging services, to get work done. Unfortunately, these are precisely the types of projects that Idaho collaborative groups are recommending.

      Idaho collaborators believe that the intent of NEPA is to help ensure that the Forest Service will analyze and disclose how its actions balance a diverse set of objectives. In short, NEPA has effectively become part of the DNA of the agency’s stewardship of public lands and is generally supported by Idaho collaborators.

      The NEPA difficult issue facing the Forest Service is distinguishing between work that adds rigor and value to its decisions and work that simply adds pages to the administrative record, touches hot-button topics that have hijacked decisions in the past, and does little to illuminate the important choices facing the agency. Forest Service NEPA documents can easily exceed 1,000 pages and take four to five years to prepare. For one Idaho project, the Record of Decision itself was more than 160 pages long.

      Collaborative groups have a significant vested interest in assuring that their recommendations are implemented on the ground before an unplanned fire visits their planning area. Because they invest hundreds of hours in studying the project area and developing recommendations that are ecologically appropriate and economically feasible, their close monitoring of Forest Service progress during the environmental assessment (EA) process is not surprising.

      Reply
      • We should ask Rick to link us to a project with what he thinks is a “just right” level of analysis for the kinds of projects he is talking about.

        Reply
        • (Geez, it seems like we were just celebrating “NEPA turns 40.”)

          “The procedure significantly lengthened and complicated federal land-use planning and politicized it like never before.” It seems the term “politicized” means actually letting the public know what was going on. I agree with Tony.

          “Year after year, IFRP workshop participants identify process predicament issues that continue to constrain their ability to ramp up the pace and scale of restoration treatments on national forest lands.” I don’t think it would be a mischaracterization of NEPA to say that one purpose was to ramp down the pace and scale of environmentally harmful activities so that people would look a little closer at the side-effects. (Using the value-laden term “restoration” doesn’t negate the environmental impacts.)

          “NEPA has effectively become part of the DNA of the agency’s stewardship of public lands and is generally supported by Idaho collaborators. The NEPA difficult issue facing the Forest Service is distinguishing between work that adds rigor and value to its decisions and work that simply adds pages to the administrative record, touches hot-button topics that have hijacked decisions in the past, and does little to illuminate the important choices facing the agency.” Here Rick’s (when we worked together he was at BLM) assessment matches mine – it’s a management problem. I would also say that the agency career path tends to suppress the expression of this DNA rather than reward it.

          And Gil, you need to cite sources to back up your arguments (in a separate post maybe), which mostly seem contrary to spotted owl science. Current information from the Fish and Wildlife Service scientists: “Spotted owls use a broader area for foraging, but recovery efforts focus more on nesting and roosting habitat” and efforts to “re-grow habitat that has been lost over the last 100 years or more.” https://www.fws.gov/oregonfwo/Species/Data/NorthernSpottedOwl/Documents/FAQ90-dayPetition4-7-15.pdf

          Reply
          • Jon – As I told you a long time ago when you made the same request, I have cited sources many times here on this site and don’t see much sense in repeating the process since no one responded to the comments before except with uncited disbelief. Besides, Sharon has repeatedly stated that citations are not required. Those artificial requirements seem mostly aimed at limiting a free expression of ideas by suggesting that the person is making things up and by putting a very heavy burden on rebuttals.

            1) Re your link’s: ““Spotted owls use a broader area for foraging, but recovery efforts focus more on nesting and roosting habitat””
            —> Unfortunately, that is exactly the problem, in extremely cold weather the natural forests just don’t provide the same degree of protection nor the richer more diverse forage found in the more diverse plantations throughout the year.
            —> Do you have anything to contradict my close following of the literature, since the 1970’s, that clearly shows that the NSO has always had better survival rates in and around these industrial plantations? That is the only fact that matters and, according to your statement above, it is still being ignored. Anything else is obfuscation. The last 5 yr study didn’t state that but they did publish an initial, pre-publication web summary that they had removed when I tried to find it in response to your request. Contact with the primary NSO researcher received no response. I have laid it off to damage control. I mean how embarrassing would it be to the experts to show that they had wasted hundreds of millions of tax dollars by acting without sufficient knowledge.

            2) Re your quote: “efforts to “re-grow habitat that has been lost over the last 100 years or more.””
            —> Has anything been done to finally produce an age projection of this policy that wouldn’t result in a fatal dearth of old growth forests when a slug of mortality occurred in stands that were way over their natural mortality period and thereby ring a death knell for any surviving NSO’s.” Only such an age projection would address both the lack of a) young growth creation over the last thirty years when harvesting was stopped on the designated acreage and b) “habitat that has been lost over the last 100 years or more”. Not doing so, is amazingly irresponsible and is just an example of unprofessional “winging it”.

            3) Re your link: “If the experiment yields positive results, the Service may consider including barred owl removal on a broader scale as part of a comprehensive management strategy.”
            —> Unfortunately, unless the law or means of removal has been changed, it is ok to kill one species to study its impact on another BUT, no matter the results, it is against the law to kill one species to save another. I haven’t followed the lit this year because of my wife’s health issues but the last that I knew, removal was by shotgun.

            Reply
  4. Just substitute “NEPA” for “democracy” or “rule of law” or “informed citizenry”:

    The rule of law makes us stronger by ensuring that decisions will be tested, studied, reviewed and examined through the processes of government that are designed to improve policy. And the knowledge that they will be reviewed prevents over-reaching and checks the accretion of power.
    A commitment to openness, truthfulness and accountability also helps our country avoid many serious mistakes.

    The principle alternative to democracy throughout history has been the consolidation of virtually all state power in the hands of a single strongman or small group who together exercise that power without the informed consent of the governed.

    Thomas Jefferson said: “An informed citizenry is the only true repository of the public will.”
    The revolutionary departure on which the idea of America was based was the audacious belief that people can govern themselves and responsibly exercise the ultimate authority in self-government. This insight proceeded inevitably from the bedrock principle articulated by the Enlightenment philosopher John Locke: “All just power is derived from the consent of the governed.”

    One of the other ways the Administration has tried to control the flow of information is by consistently resorting to the language and politics of fear in order to short-circuit the debate and drive its agenda forward without regard to the evidence or the public interest. As President Eisenhower said, “Any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.”
    Fear drives out reason. Fear suppresses the politics of discourse and opens the door to the politics of destruction. Justice Brandeis once wrote: “Men feared witches and burnt women.”

    In the words of George Orwell: “We are all capable of believing things which we know to be untrue, and then, when we are finally proved wrong, impudently twisting the facts so as to show that we were right. Intellectually, it is possible to carry on this process for an indefinite time: the only check on it is that sooner or later a false belief bumps up against solid reality, …”
    Whenever power is unchecked and unaccountable it almost inevitably leads to mistakes and abuses. In the absence of rigorous accountability, incompetence flourishes. Dishonesty is encouraged and rewarded.

    Jan 16, 2006 Al Gore “Restoring the Rule of Law” speech at DAR Constitutional Hall, Washington DC.

    Reply
    • 2ndLaw

      Re your quote: “The rule of law makes us stronger by ensuring that decisions will be tested, studied, reviewed and examined through the processes of government that are designed to improve policy. And the knowledge that they will be reviewed prevents over-reaching and checks the accretion of power.
      A commitment to openness, truthfulness and accountability also helps our country avoid many serious mistakes.”

      Wonderful sounding but, where was all of this for the NSO recovery effort?
      Oh yea, another of your quotes is where it was: “We are all capable of believing things which we know to be untrue, and then, when we are finally proved wrong, impudently twisting the facts so as to show that we were right. Intellectually, it is possible to carry on this process for an indefinite time: the only check on it is that sooner or later a false belief bumps up against solid reality, …”. Yes, I agree – just like the reality that the NSO owl has consistently done best where industrial plantations were in forage range of natural mature stands. Too bad that, according to Jon’s source, the researchers still don’t believe their own most definitive results. Or is it just CYA? How embarrassing that lowly on the ground foresters were correct and the researchers ignored them.
      —> RE “We are all capable of believing things which we know to be untrue” Now that is a wonderful example of faulty logic. Anyone who knows something to be untrue by definition doesn’t believe it. For the sake of saving face they may pretend otherwise or if they are arrogant their subconscious may suppress the truth to the point that they no longer believe it. But they can’t hold (accept) both beliefs (untrue and true) at the same time. “Either Or logic” prevails over “Both And logic” in this situation.

      Validated science has no regard for rule of law or democracy or professed openness, truthfulness and accountability. Democracy is better than any alternative but history is replete with the failure of democracy and professed openness, truthfulness and accountability and rule of law in determining truth.

      In my opinion, these platitudes are nothing but obfuscation. As President Eisenhower said “Any who act as if freedom’s defenses are to be found in suppression and suspicion and fear confess a doctrine that is alien to America.”

      Reply
  5. “Just substitute “NEPA” for “democracy” or “rule of law” or “informed citizenry”?

    I concur, but, like democracy, NEPA can be messy. Maybe we super-smart Smokey Wire bloggers can come up with some ideas to help clean it up a bit. NEPA, that is.

    Tholen’s essay has a few suggestions. For example:

    “Expand the use of strike teams to increase NEPA capacity and improve support for consultations required under the Endangered Species Act of 1973. More focused NEPA resources, such as strike teams, could help the agency expedite restoration projects, in turn boosting the morale and satisfaction of collaborative group members and agency employees.”

    Reply

Leave a Comment