I’m going to share my story of how I came into the NEPA business, because I think it’s relevant to why I look at it differently than many. It also tells the story of how much difference small interactions can make in the lives of individuals. When I worked in the WO (Washington Office) R&D (the Vegetation Management and Protection Research staff, known colloquially as “Vampire”), we were tasked with writing an answer to a journal article.. (perhaps the Beschta report?) that silviculture folks could use when writing NEPA documents. I remember Chief Gail stopping by our staff area and thanking us for being helpful. This made a big impression on me, as some research administration jobs involve laboring in obscurity and not being appreciated. But just the Chief making a point of thanking us planted a seed in my brain that there were jobs with higher degrees of practical outcomes and appreciation.
I had worked with an individual (I will call her JR) who encouraged me to apply for a job on the NEPA staff there in DC. She likely had the greatest impact of anyone in this whole story. I had probably the worst background of anyone, but the EMC Director at the time, Fred Norbury selected me. He said it was because he wanted a fresh set of eyes and that he thought my science background would be helpful. This was right around the time of Process Predicament- an effort to streamline decision-making and NEPA. I ended up being involved with many interesting things- CE development, the NEPA side of the 2005 Rule, the initiation of PALs, and the staff folks were terrific. So there are two points to this story, first that Chief Gail and JR made a great difference in my career just by encouragement at the right time and place. And second, Fred had to roll the dice with someone inexperienced. And of course, Fred and the Deputy, Pam, and the NEPA staff welcomed me with a generous spirit despite my background.
So if I see things differently than many, my background may be a reason.
CEQ NEPA World
One part of my job in NEPA was to attend inter-agency meetings with the NEPA reps from the agencies. There were certain themes I heard from CEQ. They basically were of the genre, “if you would just do things correctly, there wouldn’t be a problem.”
There were several elements to this.
1. Why do you write so much? We have guidance.
2. Why don’t you use more programmatics?
3. If you engaged with people more and did it correctly, then they wouldn’t litigate.
But that wasn’t what I saw or heard in the field. I saw a complex ecosystem of ID teams, NEPA practitioners, contractors, scientists writing a variety of papers, lawyers, case law and judges. It’s known that bullet-proofing documents (or at least attempting to do so) is a thing. OGC was always interested in being able to defend our decisions, and so that placed them at odds, to some extent, with CEQ’s views. And practitioners in the middle. In my previous work experience, I would have thought the CEQ question would be “how can we work with you agencies to make NEPA work better? let’s talk in depth” But the feeling seemed to be “things would be fine if you do what we say.”
When I worked in R2 in planning later, I attended a multi-agency NEPA meeting on analyzing climate in NEPA documents. Most of us said that the place to analyze carbon emissions from fossil fuels was at the power plant permitting level, not for each project. But again, the over-riding value seemed to be “more analysis is always better, unless you write too much and not in plain English.” For me coming from a rational kind of science background, I just didn’t get it, and still don’t. Writing complex documents with analyses that will stand up in court is really hard work. Or at lest that’s my observation.
Then there’s almost a religious belief in the value of programmatics, which again goes against the lived experience of many folks in agencies. The problem is that if it takes you two years to do a programmatic, then by the time you do an actual project the information can be outdated (or claimed to be by plaintiffs) and you end up redoing it anyway.
My World
In my world, on the other hand, people don’t want certain kinds of projects. We don’t know why really.. you can call them NIMBYs, say for renewable projects, but they might really care about the environment. Who knows? What we do know is that if they hire attorneys, then each process step that agencies engage in, and all the documents and emails and texts, will be scrutinized in great detail to find potential flaws.
I agree that the best public engagement should be a goal. Writing concise documents should be a goal. But at the end of the day, at least in the FS, people may still disagree because, say, they didn’t get everything they wanted (think NFMA planning) and have enough interest and resources to litigate. Judges decide that, for example, the Black Ram project analysts did not do enough climate analysis, or the poor folks at the BLM (home of many unpopular projects) did not analyze something “correctly”. All of this, to my mind, has a “both things are true” element.
1. There are poorer jobs and better jobs of analysis and documentation in terms of litigation-proofing
2. The judge (and DOJ representation) can ultimately be a crapshoot in terms of wins or losses
Does this remind you of the psychological experiment where sometimes the rat pressed the lever and got a treat and sometimes got a shock? You can do a really great job and have it thrown out for a redo based on random stuff. As OGC folks once told me.. “yes the Judge is wrong, but he is young, and if we point it out, he will have a bad taste in his mouth for the FS and he has a long career ahead of him.”
There is a trade-off between litigation-proofing, obviously, and having concise documents. There is a trade-off between full public engagement and Tribal consultation. and time limits for EIS’s. There is a kind of a no-frills strategy that might work. For example, I worked on one project that (some) readers of TSW and their allies really didn’t like. The FS tried not to go overboard on the analysis, and the judge said do more alternatives, then the alternatives weren’t fleshed out adequately and so on. I don’t remember how many times it went back and forth. I kind of like this strategy, but it does lengthen the time, and may actually tick off the judge after a while if it goes to the same judge. Plus it would tie up the courts, who might have better things to do than read about the climate analysis of a thinning project, or having a roomful of lawyers and the judge discuss whose air quality model is better.
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Permitting at least for renewables and transmission, is now a big thing. But I think we need to talk about framing the issue before we talk about solutions.
I’d like to hear how you all see your own NEPA World, and next post about the CEQ Proposed Regulations and elements therein that suggest CEQ World hasn’t changed much in the last 10-15 years or so. If you want to write a post instead of a comment, please send to me at the email in the donate widget on the right.