New rules could gut NEPAand some say good riddance
The new forest planning rules proposed by the Forest Service could fundamentally alter the way the National Environmental Policy Act (NEPA) is used in the Forest Service decision-making process.While NEPA helps ensure careful consideration of public input disclosure, as well as evaluation and disclosure of impacts, the law has many critics who say its original purpose has been subverted.”NEPA had a two-fold purpose,” says Harris Sherman, an attorney with Denver-based Arnold & Porter who has guided most of the local ski resorts through the NEPA jungle. “It was meant to give decision-makers the necessary tools to make an intelligent decision and to ensure public access.”But today, NEPA has little to do with understanding and evaluating environmental impacts,” Sherman says. “It has become a time-consuming and expensive process that doesn’t contribute much to its original dual purpose. It has become process for the sake of process.”According to Sherman and many Forest Service planning officials feel the same way NEPA has become a highly defensive process that forces the agency to produce reams of paperwork all focused on building “defensible documents” that will withstand an eventual court challenge.”NEPA is a law that’s been left to be interpreted by judges in thousands of cases,” Sherman says. That means there’s almost always a case to be found somewhere that can justify a legal challenge to an agency decision, he explains.As a remedy, Sherman says federal agencies should consider a “tiered” system, allowing one agency to defer to another’s analysis. At the same time, site-specific reviews could be tied to broader studies.The Forest Service also needs to boost NEPA training for its staff to make sure that officials are all operating with the same understanding of the process. There needs to be coordination at different administrative levels, from the district ranger’s office up through the forest and regional headquarters, he says.Another change that could help smooth the process is better direction to various agencies as to when a project can move forward under a so-called categorical exclusion, which requires less environmental analysis and public input.”NEPA has been a very helpful tool to make better environmental decisions, but it could definitely be improved,” Sherman says. “A thoughtful review by Congress could help resolve differences in court interpretations.”In response to criticism of NEPA, environmentalists say the law is an environmental bill of rights, and fear that any changes would serve only to ease the way for extractive industries to run rampant without anyone being held accountable for environmental impacts.Agencies should focus on projects that are truly in the public interest then they would find support in the environmental community, says Ted Zukoski, former legal ace with the Land And Water Fund of the Rockies.The Forest Service should also emphasize quality work when it puts together an analysis rather than focusing on potential legal challenges. According to one EPA officials who reviews NEPA studies for the entire Rocky Mountain region, most legal challenges occur when an agency puts forth an inadequate document.Again and again, environmentalists point out, agencies like the Forest Service have been rebuked in court for shoddy work.