Let’s Discuss: Page Limits For NEPA Documents

I have been sucked into the “let’s comment on the CEQ NEPA regs” vortex. I’m of two minds about the page limit idea, so I thought I’d open it up for discussion.

Viewpoint 1. NEPA docs are long to bullet-proof them for litigation. Sure, there are cultural agency/NEPA team differences. Perhaps there are cultural reasons to overwrite (associated with importance of your professional area) but no one wants them to be long and impenetrable, or to spend more funding or time than necessary. Therefore, a page limit is pointless. CEQ’s story is that “if only agencies would be more focused and not blather on” but agency NEPA people continue to see things differently. After observing this for the last fifteen years or so, I think that they are continuing to talk past each other.

Viewpoint 2.If agencies really held to the page limits, then possibly projects would go to court sooner and work would be transferred from NEPA folks to OGC, DOJ, plaintiffs and the courts. Then we could have court-based iterative NEPA. It would either dragging on interminably (as in the North Fork Coal litigation, the Jarndyce v. Jarndyce of federal lands) or possibly, might goes to court, judge says to add a, b and c, agency adds a, b, and c, and everyone goes home. Pretty much it would depend on the pocketbooks and tenacity of the plaintiffs, which it pretty much does now, but there would be no expectation of “perfect” at the first go-round in court for anyone involved.

I’d call this the focused court-based NEPA strategy. Strategically, this might move the extra work to the courts-creating pressure among those with more power (judges and attorneys vs. NEPA practitioners) to find a different approach.

Of course, my realistic viewpoint is that agencies would ignore or make lots of exceptions for page limits, even if the proposed NEPA regulation isn’t thrown out in court or settled behind closed doors. Nevertheless, I know TSW readers come from a variety of experiences and perspectives and would appreciate what you all might add to this discussion.

If you have any specific comments on the rest of the reg, that would also be potentially helpful. Also, I’m requesting photos of piles of FS environmental documents for future use.

18 thoughts on “Let’s Discuss: Page Limits For NEPA Documents”

  1. Although the idea of page limits has some merit, the number of pages isn’t a limiting factor in distributing electronic documents. One might include relevant scientific papers, for example, rather that merely citing them. That could give courts some help in deciding issues.

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    • Not to go on an Open Access rant, but I’m not sure that the government could legally provide many scientific papers. https://en.wikipedia.org/wiki/Open_access

      But as you point out, one co-evolution strategy is to make EIS’s themselves shorter, but have links to equally long “supporting documents”. I think the writer on the regs that Jon linked to observed this as a likely outcome.

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  2. In some National Forests, NEPA project documents must surely be ‘canned’, using the same purpose and need, along with wildlife mitigation, hydrology, botany, etc. Often, thinning projects share much of the same NEPA language. When “cut and paste” NEPA works, why not use it, where applicable?

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  3. I think that page limits are inherently arbitrary and capricious. At least I think that’s what a court would say if the government ever tried to defend leaving something out because they didn’t have enough pages.

    I’ve always believed it’s a management problem to make NEPA work as intended to inform your decision, but a lot of FS managers don’t seem to be up to that. The point of doing public involvement, especially a draft EIS/EA, is to identify the problem areas and fix them – before going to court. Bad managers take bad risks, and page limits would probably make that worse. There’s a counter-argument that page limits would force managers to prioritize, but bad managers would probably fail at that, too.

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    • Jon, I think the “arbitrary and capricious” would come up in the litigation on the reg itself.

      Who are the “bad managers” you’re talking about the NEPA team leaders or ???

      I do think there might be a difference between a fuels treatment project, like Larry says, where you’ve done many previous ones, versus “ones you know will be litigated by very serious and talented attorneys”. Kitchen-sinkery perhaps has more of a role in the latter.

      Which is perhaps a reason to have different teams do the “tough” ones who are expert on precisely those topics and being litigation-proof. I think perhaps there should be a better term of art than “tough” but I’d say there are a couple of factors (1) involve kinds of projects that litigious groups are strongly against (e.g. North Fork Coal, (2) involve ESA and species amendments (3) involve something unusual that the Forest doesn’t have experience with (e.g. mining or pipelines on some forests).

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  4. While I can only speak to my experience in the Forest Service (though I believe other federal agencies are experiencing the same), I conclude that the “excessive” pages of NEPA environmental documents result from little to no critical thinking. As Einstein was quoted, “Everything should be made as simple as possible, but not simpler.” It is damn hard work to achieve this, and that hard work takes time, time that many NEPA teams simply do not have. Without this critical thinking on what is relevant and thus documented, team members resort to throwing in the “kitchen sink” in an effort to have all possible information available to inform decisions, not the most relevant information.

    Enacting a strict page limit in regulation is not going to solve this “lack of critical thinking” problem. In fact, it may exacerbate it. I guess this may fall into the “unintended consequences” category.

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    • I’d also say that there might be team dynamics going on… that for a writer to cut down or leave out things a specialist has written might invoke some bad feelings on the part of the specialist, that the write will later regret as she/he tries to get him/her to write something for the next project…

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      • Does the USFS has a template or guidelines for what is required or desirable to include in NEPA docs. I imagine so. What does it say about length, if anything?

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        • Steve, that’s a great question! I hope others who are currently working and Jon and Tony answer. I poked around on the EADM website and found these interesting innovations.
          https://www.fs.usda.gov/managing-land/eadm/innovations-tools

          I remember talking about developing templates when I was working in NEPA but not sure if it happened. It might vary by Region, or even a forest thing. There is a certain cultural reticence in the FS about “telling lower levels what to do.” It is a strong cultural norm for empowering people at the local level, plus a great deal of respect for individual district teams to do the right thing. One previous WO Director of Planning Fred Norbury used to call it “NEPA as a cobbler shop when it could be a Nike factory.”

          At one point we were asked to figure out whether people were using CE’s and interviewed folks from a District. They said “we have an EA process that works for us why would we change?” It seems like there is some tension between harnessing the creativity and knowledge of local people and attempting to standardize across units.

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      • That’s the “manager” part. Your question about a template – there was always NEPA training up the whatever, with plenty of examples. I suspect there is a lot of using the most recent documents to start the next one – evolution that is not necessarily the survival of the fittest. And I agree with Tony.

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    • I agree that a strict page limit will not solve the lack of critical thinking. As for Steve’s comment about a template, the directives emphasize focusing on things that are critical to the decision – that is often easier said than done. I once cut 60 pages out of a draft EIS to remove duplicate information and to focus on the information relevant to the decision – the decision maker was not happy, but on the other hand, they could not figure out what else needed to be in there. The Regional Office however was very happy with the improved readability and flow of the document…

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      • Anon- I’m curious, why would a decision maker care about the missing pages? The only people who have ever cared about my editing have been the authors. In fact, I’m not sure I ever remember a decision maker reading an EIS.

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  5. You might also be interested in this take on time limits and page limits for transportation projects from some private attorneys usually on the development side: https://www.endangeredspecieslawandpolicy.com/ceqs-proposed-nepa-regulations-terrible-or-so-very-helpful-for-surface-transportation-projects

    Especially:
    “However, neither the current rule nor the NPRM limits the number of reports, appendices, and other documents that may be incorporated by reference. Thus, it is likely that the total length of the EIS and supporting documents will not change.”

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  6. DOI implemented page limits for NEPA documents and that might work well for some types of projects. There are likely to be a number of unintended consequences from the proposed page limits, one possibility is segmenting decisions. Since none of us are paid by the word or pound of document, the length of documents is often a function of time and the project’s context and complexity.

    A 300 page EIS might work fine for a project which proposed replacing an existing transmission line with a higher capacity transmission line. A project where a higher capacity transmission line is just one of the three major project components, a 300 page EIS even with appendices may not contain enough information to be defensible.

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      • In practice this approach has been a bit mixed in my experience and those of others. For more complex projects the EAs and EIS’s included a number of appendices, which were summarized in the NEPA document chapters. A number of the documents prepared under the DOI page limits are being challenged. The page limits and along with the schedule limit did lead to some very similar documents that appeared to have nearly identical wording.

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