The House Resources Committee yesterday released the final paper prepared
by a task force to improve and update the National Environmental Policy
Act (NEPA). These recommendations clarify and expand on the
recommendations and findings presented in the Initial Findings and
Recommendations report issued on December 21, 2005 (“Initial Report”). The
recommendations in this paper (attached) were produced following review
and analysis of the public comments submitted on the Initial report. The
Family Farm Alliance on February 6, 2006 submitted a seven page comment
letter to the Task Force on this matter. Copies of comments from 250
parties - are available on the Committee on Resources website at:
http://resourcescommittee.house.gov/nepataskforce.htm.
The final report sets out 20 recommendations (some with sub-parts) that
are presented in the following categories:
• Group 1 – Addressing delays in the process
• Group 2 – Enhancing public participation
• Group 3 – Better involvement for state, local and Tribal stakeholders
• Group 4 – Addressing litigation issues
• Group 5 – Clarifying alternative analysis under NEPA
• Group 6 – Better Federal agency coordination
• Group 7 – Additional authority for the Council on Environmental Quality
• Group 8 – Clarifying the meaning of “cumulative impacts”
• Group 9 – Studies
The final recommendations within these
groups are legislative as well as administrative actions. Implementing
these recommendations will require legislative action. GOP leaders say
they do not expect to offer a bill this year. The panel's chairwoman, Rep.
Cathy McMorris, R-Wash., said it was premature to offer a bill, adding
that she did not want the effort to get caught up in election-year
politics.
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Recommendations to Improve and Update the National Environmental Policy
Act
Presented to Representative Cathy McMorris, Chairwoman Task Force on
Improving the National Environmental Policy Act and Task Force on Updating
the National Environmental Policy Act Committee on Resources United States
House of Representatives*
July 31, 2006
* This report has not been
officially adopted by the Committee on Resources
Executive Summary
This paper presents a comprehensive set of recommendations to improve and
update the National Environmental Policy Act (NEPA). These recommendations
clarify and expand on the recommendations and findings presented in the
Initial Findings and Recommendations report issued on December 21, 2005
(“Initial Report”). The recommendations in this paper are produced
following review and analysis of the public comments submitted on the
Initial report.
Summary of Comments on Initial Recommendations – The primary point raised
by reviewers of the Initial Report is that the initial recommendations
needed additional clarification or explanation. Indeed, that was one of
the principle points of seeking public input on the initial set of
recommendations. That is, the Task Force is relying in part upon those who
work with NEPA to provide input that provides needed clarity. Much like
the testimony and comments received through the Task Force NEPA review
process; there are two distinct views of the current state of the NEPA
process. The first is that the status quo is adequate and must be
maintained. Obviously, this viewpoint lends itself to a skeptical opinion
on any recommended changes to NEPA. The other perspective is that some
improvements will have benefits to all stakeholders. Those who expressed
the viewpoint appreciated the possibilities of change, but still urged the
Task Force to understand that any changes cannot undermine the
underpinnings of the statute. It was this latter category of comments that
yielded the most constructive comments.
Recommendations – This report sets out 20 recommendations (some with
sub-parts) that are based in large measure on input received on the
recommendations presented in the initial report.1 The recommendations were
also developed through analysis of additional research and study of events
that transpired subsequent to the release of the Initial Report. These
final recommendations represent refinements to the initial
recommendations. The process of refinement in some cases resulted in an
initial recommendation being dropped. In developing these final
recommendations it is important to note that the number of comments in
support or opposition was not the primary factor. The main reason for the
presentation of a particular final recommendation is the net effect the
Task Force believes it will have on improving NEPA and its directives. For
the sake of consistency with the Initial Report, the final recommendations
are presented in the same categories as draft recommendations:
• Group 1 – Addressing delays in the process • Group 2 – Enhancing public
participation • Group 3 – Better involvement for state, local and Tribal
stakeholders • Group 4 – Addressing litigation issues • Group 5 –
Clarifying alternative analysis under NEPA • Group 6 – Better Federal
agency coordination • Group 7 – Additional authority for the Council on
Environmental Quality • Group 8 – Clarifying the meaning of “cumulative
impacts” • Group 9 – Studies
1 Some comments presented the Task Force with recommendations beyond those
in the Initial Report. This was encouraged and the recommendations
received were in some cases quite valuable. It is important that all of
the recommendations received be reviewed and analyzed going forward.
2
The final recommendations within these groups are legislative as well as
administrative actions. Implementing these recommendations – whether
changes to NEPA or directions to CEQ – will require legislative action.
Summary of Comments on Initial Recommendations
The following is a brief discussion of the comments received on the
Initial Report. The Initial Report was released on December 21, 2005. The
comment period was open for 45 days, ending February 6, 2006.2
Approximately 250 substantive comments were received. Those providing
comments fell into the following groups:
• Individuals • NEPA practitioners • Interest groups • Business and
industry • NEPA lawyers • State/local governments Comments were received
via e-mail, fax and standard mail. Copies of the comments are available on
the Committee on Resources website at: http://resourcescommittee.house.gov/nepataskforce.htm.
It is important to point out that improving NEPA is an evolving process
and all comments received on the initial recommendations will be kept for
use in the continuing debate on improving NEPA.
Many of the comments were easy to characterize as “pro” or “con” with
respect to modernizing NEPA. However, this characterization is not easily
attached to the type of author. In addition, the bulk of the comments
expressed the desire for more information from the Task Force. Further,
many comments offered additional suggestions that would strengthen the
recommendation. Of course, there were several comments that advocated the
deletion of a recommendation.
Almost without exception, comments that wished to see the current process
remain unchanged suggested that any of the recommendations would
automatically result in a weakened NEPA. This vehement defense of the
status quo was not, in the majority of cases, persuasive. One refrain was
the notion that “streamlining” the statute equates to “gutting” it.
Unfortunately, those with this perspective believed there is no middle
ground. This view was more than offset with a number of comments that
noted NEPA is a valuable tool for government decision-making that should
not be abandoned because of its benefits yet it could be strengthened by
the recommendations.
There were also some comments that suggested that the recommendations
presented in the Initial Report would allow the NEPA process to be
inappropriately influenced by interest groups. In commenting on addressing
delays in the process and litigation, some commenters suggested that there
is “business-government” collusion. This was unsubstantiated but
indicative of the skeptical view of the recommendation from interest group
authors. Another
2 The 45th day fell on a weekend, thus the period was extended until
Monday the 6th of February.
3
example, was the suggestion that some of the recommendations having to do
with creation of a citizen suit would “tip the balance in favor of
business interests.” This myopic response missed the clear intent of the
recommendation, which is to create a framework for bringing up a NEPA
lawsuit. It is not obvious how setting out the process in which a suit
would be brought would favor any potential litigant.
Finally, there was some suggestion that some of the recommendations were
not “warranted.” This position was most often expressed by those who did
not want their particular role in the NEPA process to change. Obviously,
all of the recommendations are defensible based on the record compiled
through the Task Force hearing process and are therefore “warranted.”
Therefore its evident that the argument that a particular recommendation
is “warranted” or not is actually rooted in what one commenter “wants” or
not.
The majority of the comments focused less on trying to divine the motives
of the Task Force and more on proving input to make the NEPA process
better. These comments discussed how the recommendations would ensure NEPA
remains a valid and functional law. These comments ran the gamut from
minor alterations to the initial recommendations to suggesting wholesale
changes. The comments supporting the basis for the initial recommendations
noted many weaknesses in the current NEPA process that are in fact
undermining the law’s effectiveness. For example, in arguing the need for
reforms in the use of supplemental NEPA documents it was noted that the
existing mechanisms created a near-endless NEPA process. The result is
incomplete or initiated federal projects. In sum, the constant thread
running through the supportive comments was while there is much good about
the NEPA process, there are elements causing enough uncertainty to warrant
modest improvements and modifications to both the statute and its
regulations.
This initial report represents the next step in developing a set of
measures that will update the statue to ensure that NEPA is meeting its
goal. The draft recommendations are aimed at beginning a conversation on
specific elements of NEPA worthy of updating. To do nothing would be a
disservice to all stakeholders who participate in the NEPA process and
against its initial intent.
A final note, the path to modernizing NEPA through Congressional action is
a lengthy one. There have been a number of positive and important efforts
to address particular NEPA issues. It is critical that these other
specifically tailored attempts to streamline NEPA and address distinct
inefficiencies should not be abandoned as the debate on comprehensive
improvement progresses.
4
Analysis of and responses to the comments received on Initial Report
Group 1 – Addressing delays in the process
Opinions are split on both whether delay exists and if it does, what
should be done about it. It appears from some comments that there are no
delays, just “complex projects” that take years to analyze. Yet others,
including government agency personnel, expressed frustration with the
length of the NEPA process. This debate lies at the heart of what
qualifies as a “major federal action” (Recommendation 1.1). The current
“definition” is largely a product of case law.3 It was mentioned that the
30-plus years of case law has created “uniform guideposts” though it is
not clear what these “guideposts” are or specifically what would be the
detrimental effect of changing them. Some commentors suggested that a
clear “go/no go” type of definition is needed. Contrast this with those
who suggested that any definition, if too rigid “could exclude large but
insignificant projects as well as those which are small but significant.”
Other commentors suggested that the proper focus should be on whether a
decision is “major” or not. Rather the importance should be focused on the
overall “significance” relative to the environmental impact. This idea has
merit. Clear criteria from CEQ for what constitutes a “significant” action
would provide useful clarity to support a statutory definition.
In terms of the creation of timelines (Recommendation 1.2), those in
opposition suggest that the proposed 18 month timeline for the preparation
of an Environmental Impact Statement
(EIS) and 9 month timeline for Environmental Assessments (EA) are
“arbitrary.” This statement makes little sense. There are no timelines in
current law or regulations, thus any proposed timeframes could be
considered “arbitrary.” However, it was proposed in direct testimony that
timeframes are the “single most important potential reform in eliminating
delay from the process.” In fact, one commentor suggested it must be clear
that the 18 and nine-month timeframes should be outside limits because
NEPA compliance “can take place more expediously" than the time limits”
presented in the initial report. Several other comments noted the value of
timelines pointing out that in their absence the result is “unfinished” or
“uninitiated” projects. Therefore, it stands to reason that the timeframes
presented in the Initial Report are fair, appropriate and necessary.
On the subject of the unambiguous criteria for the use of Categorical
Exclusions (CE), EA and EIS (Recommendation 1.3), it was stated by
multiple commentors that the current CEQ regulations aim to provide the
clarity sought by this recommendation. There were differences of opinion
if that goal is being achieved. For example, some commentors believe the
current process is effective and efficient. However, evidence suggests
that agencies are defaulting to Easy and EIS and struggling to utilize the
CE. It should be noted that the difference between an EA and EIS can mean
years. One need only look to the repeated comments that suggested that
federal agencies are attempting to “bulletproof” their NEPA documents.
This reality translates into Easy that are as detailed as an EIS and then
lead to a “mitigated FONSI.” Without question, clear and reliable criteria
are definitely needed. Those comments that supported the creation of
unambiguous criteria disagreed as to whether the criteria should be
legislative or regulatory. It seems sensible that this could be a
3 To be fair, there is a definition of “major federal action” in 40 CFR
1508.18. However, like many regulatory provisions it has questionable
value in terms of providing clarity.
5
regulatory exercise. As stated above there already have been efforts to do
this through CEQ. Further, a regulatory pass allows for the needed public
participation.
The final recommendation in this group addresses the use of supplemental
NEPA documents, namely how and when the supplemental EIS should be used
(Recommendation 1.4). The purpose of examining this specific component of
the NEPA process is most certainly to reduce the occurrence of
supplemental NEPA documents. If the NEPA process were working as it was
intended, the need for supplemental NEPA documents would be limited.
Evidently, the process is defective in some respect as supplemental EISs
are becoming standard. Some commentors properly acknowledged that there is
existing regulatory language that speaks to this issue. However, it was
also correctly pointed out that the current regulatory framework allows
project opponents to reopen the NEPA process through the use of
supplemental documents without a showing of a wholly distinct federal
action. This exposes a weakness in the process whereby an agency believes
it has an “obligation” to reopen the process for any type of new
circumstance. Some comment suggested that this “obligation” is
appropriate. A number of examples provided in support of this appeared to
cite very specific examples rather than providing an explanation of why
the systemic use of the supplemental NEPA documents is proper. Given the
potential for delays if an agency chooses to reopen the NEPA process, the
need to reform this practice remains important.
Group 2 – Enhancing public participation
The first recommendation in this group proposed to give federal decision
makers the ability to assign value to the comments from the stakeholders
most directly impacted by a particular action (Recommendation 2.1). It was
evident that many commentors misunderstood the recommendation. There is no
logical reason to deduce that this recommendation would curtail public
comment. All the comments that would be reviewed presently would still be
reviewed if this recommendation were in place. The basis for this
recommendation is the fact that those closest in proximity to a federal
action are in the best position to understand its impacts – especially the
significance – to the environment and economy.
There were many comments that expressed concern about what was meant by
“local” comments. Questions were raised about projects that are “regional”
in scope (i.e., covering more than one geographic element such as a city,
county or state). The term “local” was not intended to create an
artificial limitation on the type or source of comments. Rather than
focusing on whether or not comment is from a “local” entity, the principle
is to focus on comments from entities that will experience the most
significant effects of the federal decision. It was interesting to find
from the comments that no group spoke of an obvious benefit of this
recommendation which is the empowerment of local groups. It is a clear
benefit to local citizen and business groups if their comments are given
greater consideration. Finally, it was clear from reviewers of this
recommendation that there would be a greater number and higher quality of
comments.
With respect to what “weight” should be given and how to do it, there was
similar confusion. At the outset, it must be reiterated that the proposed
recommendation states that CEQ would be charged with creating a system
whereby all agencies would develop their own criteria. This is not a
statutory change. While it is clear the agencies currently have methods to
sort through and evaluate comments, it is evident that comments from those
who will experience
6
the greatest impact are given the same consideration as those who comment
as a matter of principle. NEPA’s requirement for public participation is
an attempt to solicit comments that are as specific as possible on the
adequacy of the proposed action, including any appropriate alternatives.
Therefore, generalized comments are not consistent with NEPA’s stated
goals. Agencies must be instructed to give greater consideration to
comments that are generated from those that will feel the most significant
impact. The arguments that these are too inflexible for agencies to
implement or that commentors will be somehow “disenfranchised” are not
persuasive. Placing emphasis on comments from those facing the greatest
significance does not in any way denigrate other comments.
The next recommendation in this group would amend NEPA to codify page
limits currently set forth in CEQ regulation (Recommendation 2.2).
Surprisingly, despite the existence of page limits in regulation, some
commentors suggested the page limits are “arbitrary.” This comment on one
of the more straightforward and less controversial recommendations
suggests two things about the state of the NEPA process. First, it
acknowledges the lack of force suffered by the CEQ regulations. Second, it
shows that for the ardent defenders of the status quo, any type of
refinement of NEPA to improve the process, even the simple codification of
existing regulatory language, will meet with resistance.
In support of this recommendation many comments noted that current NEPA
documents are “massive” and create situations that make it difficult for
the general public to develop “meaningful comments.” This idea was
articulated for a wide range of projects and not confined to one time of
federal decision. Further, it was stated that enforcing the page limits
currently set forth in CEQ regulations would assist in making NEPA
documents “more user- friendly for both agency decision makers and the
general public.” In addition, other commentors noted that having statutory
page limits would complement the time frames as set forth in
Recommendation 1.2 as methods to reduce the delays associated with
preparing NEPA documents. One comment suggested that any page limits be
applied to EAs as well.
Those opposed to page limits proffered the argument that NEPA documents
should “be as long as [necessary]” and that page limits would unfairly
truncate the analysis that goes into them. This is, of course, at odds
with CEQ regulation directed at reducing paperwork in the NEPA process.
Moreover, it was stated that inadequate resources are the “root cause” of
lengthy delays. Interestingly, government comments suggested the opposite
challenge – that the length of the documents is unnecessarily taxing
current resources. Finally, one comment noted that shortening the length
of NEPA documents by statue is inappropriate given “pervasive public
sentiment” that agencies are already treating the NEPA process in a
“perfunctory manner.” This contention is without merit. It contradicts the
widely held
(although admittedly contradictory) beliefs that: a) agencies don’t need a
change in the NEPA process because the status quo is adequate or b) that
agencies are spending too much time on the NEPA process. Either way, there
is nothing to suggest that the NEPA process has become a “perfunctory”
exercise.
Group 3 - Better involvement for state, local and Tribal stakeholders
While there are existing regulations providing for “cooperating agency
status,” the Task Force heard from a number of state and local
governmental entities that they are unable to have their voices
effectively heard at critical points in the NEPA process. The intent
behind
7
Recommendation 3.1 is to address this issue and ensure that governmental
entities are given the appropriate seat at the table. The result of this
dialogue will be a greater investment by these entities early in the
process while reducing conflicts.
Reactions to this recommendation were mixed. A tribal commentor noted that
there may be an adverse effect on “the federal duties and responsibilities
to tribes” if the Federal government is required to accept conditions from
state and local governments. However one NEPA practitioner suggested that
tribes should be granted cooperating agency status because they are
sovereign. Other commentors believed that the recommendation has merit but
needed to adjusted to ensure that non-governmental entitles are not
mistakenly included and to avoid instances where states could
inadvertently “trump” the rights of other states.
A number of comments, obviously in opposition, strongly believe that this
recommendation will cause “dysfunction” within the NEPA process. For
example, even if narrowly defined, it is possible in practice that the
number of cooperating agencies could be “unlimited.” This is a valid point
and given the potential for disruption of the NEPA process, it certainly
merits further consideration before inclusion as part of the statute.
The other recommendation in this group will eliminate duplicative
environmental analysis where state law and NEPA present equivalent
requirements (Recommendation 3.2). This recommendation introduced the
concept of “functional equivalence” for satisfying NEPA’s requirements.
This recommendation directs CEQ to craft regulations that would allow
agencies to judge the NEPA process satisfied if the state environmental
requirements contain equivalent features such as a detailed statement,
public participation and scoping. At present, as one commentor noted,
there are eight states that would qualify as having “functionally
equivalent” state NEPA processes based on the ability to best overlay
their requirements on NEPA’s requirements. It is assumed that in the
regulations CEQ would contemplate situations where a project would cross
state lines or involve one state with a “mini-NEPA” and one that does not.
Supporters of this recommendation noted the unnecessary expenditures of
time and money on duplicative analyses. As one comment stated:
“as long as the environmental impacts of a proposed project are considered
it should
not matter whether the analysis is completed under the state review
process or
NEPA’s requirements.”
Indeed, it was suggested that the current practice is to require NEPA
review and state review in “series rather than in parallel.” To the extent
that the equivalent requirements are being met, this makes little sense.
The primary argument advanced by several groups in opposition to this
provision that federal projects located in one state “may affect all
Americans” is misplaced. The basis for this assertion seems to be rooted
in the notion that federal projects affect lands “owned by all the
taxpayers” and therefore state “mini-NEPA” statutes are inappropriate for
federal projects. Of course NEPA is not limited to “public lands”
decisions nor does it involve projects that are “national” in scope.
8
It makes perfect sense that a project that requires state and federal
analysis in the state of Washington could utilize the State Environmental
Policy Act process as appropriate and avoid a redundant review under NEPA
just for the sake of an additional review. Further, state NEPA equivalent
statutes are not “project specific” and make the attempt to mirror NEPA.
Finally, for this recommendation to be effective, the CEQ regulation must
ensure that the state NEPA’s are more than “facially” similar. The state
statutes must provide at least NEPA’s requirements of public
participation, cumulative effects and alternatives analysis.
Group 4 – Addressing litigation issues
The initial recommendation in this group is the creation of a citizen suit
provision within NEPA (Recommendation 4.1). This recommendation creates a
framework for judicial review procedures under NEPA. One commentor summed
up the value of this recommendation by stating that the “greatest
reduction in … delays” would be the reduction of litigation. A number of
reviewers provided alternative means to manage NEPA litigation. However
beneficial these proposals appear, the fact remains that they would allow
judicial review of NEPA decisions to be governed solely by the
Administrative Procedure Act
(APA). The APA-based structure leaves little or no room for improvements.
As pointed out by several commentors, NEPA litigation, of course, has its
benefits. It does add accountability for government decisions under NEPA.
However, the aggregate effect of litigation on the federal government’s
ability to initiate or complete projects remains an issue. Moreover, many
comments seemed to be putting forth the notion that litigation was
“essential” perhaps as some way to “protect the commons.” This is a
typical defense of environmental litigation and one that is blind to the
overall negative effects on federal government decision-making. In light
of these arguments, this provision was crafted with the aim of reducing
needless litigation brought only to delay or derail projects while
providing guidance for any stakeholder wishing to exercise their right to
pursue legitimate grievances.
There was strong reaction to this recommendation. The comments ranged from
the notion that it would “close the courthouse door” to “it does not go
far enough” to reduce NEPA litigation. It was noted that a citizen suit
provision would “disrupt massive body of [NEPA] case law.” This is a
curious assertion. There is nothing in the recommendation that would
retroactively change any decision or process for bringing suit. Therefore,
it is difficult to understand how the provision would be disruptive. Also,
it should not be forgotten that NEPA is a “national policy” to be applied
without regard for the borders of a particular judicial circuit. Therefore
any modification to the statute that would apply nationally is far
superior to defining the statue through a patchwork of case law. Further,
there is little sense to the declaration that this recommendation will
“place significant restrictions” on the ability to sue for NEPA
violations. It seems logical that if a NEPA related lawsuit is truly
valid, there should be little difficulty asserting in the complaint that
the disputed government action is in contravention of the best information
available to it at the time of the decision. Moreover, it also seems to
maintain the status quo with respect to deference to agency
decision-making and prevents them from having to conduct “fishing
expiations” to explore all potential impacts – no matter how remote or
irrelevant they may be. Frankly, having a best information and science
standard will reduce the incentive to bury a federal decision
9
maker with useless information that has as its primary basis, the creation
of reasons to file lawsuits.
With respect to the standing component of Recommendation 4.1 it was
characterized by some as having the potential of erecting “barriers” to
prevent citizens from bringing legitimate suits. Quite the opposite, the
recommendation was correctly viewed by others as an effective means for
bringing issues to the forefront before litigation becomes the only
option. It is consistent with NEPA’s core principles to air issues at the
earliest possible point in the process rather than introducing new ones
after the main period of public participation has concluded. Although the
fact that some courts have suggested that issues be fully raised during
the NEPA process, there is no downside to providing additional certainty.
Distinct from the requirement requiring an appellant advance arguments
during the NEPA process before they are able to raise them during
litigation, is the proposal to create clear guidelines for standing to
challenge NEPA actions. As commentors properly point out, courts are
already adept at “policing” standing in most cases – including NEPA.
Further, it is true that current case law concerning Article III standing
obviates the need for additional standing requirements.
Another component of this recommendation is to include stakeholders that
will be affected in settlement discussions. Clearly, most NEPA disputes
are between interest groups on one side and the government on the other.
Many times, there are groups, companies, and individuals with a pecuniary
interest in a project. Despite this fact, these groups often play no role
in settlement discussions. A number of commentors referenced the need to
access the legal system when their interests would be impacted. These
commentors believe the recommendation will provide that needed avenue
without disrupting the NEPA process.
The other recommendation in this group is a mechanism for curbing needless
litigation through early CEQ involvement. The phrase “pre clear” gave rise
to some confusion. Understanding that CEQ currently provides general
guidance to federal agencies, the goal of this recommendation was for CEQ
to provide specific legal guidance to agencies to ensure that they
understand the current landscape of NEPA case law. It seems reasonable to
modify this recommendation instructing that CEQ (with the acknowledgement
that additional resources may be necessary) provide ongoing analysis of
NEPA cases and provide that information to agencies on a proactive and as
requested basis.
Group 5- Clarifying Alternatives Analysis
The initial recommendation in this group seeks to refine the number of
alternatives that must be reviewed by a federal decision maker
(Recommendation 5.1). The purpose is not, as many commentors suggested, an
attempt to restrict the number of viable alternatives (i.e., ones that are
truly feasible in light of the project’s purpose and need) that must be
considered to meet NEPA’s mandate. As one comment put it agencies receive
many alternatives “far outside the scope of the proposal” and feel
compelled to respond to each one, lest they face litigation. Indeed,
several comments noted that agencies, per a multitude of court decisions,
have “flexibility” to exercise a “rule of reason” when reviewing
alternatives. If this authority is appropriate and legally sufficient, it
does not seem to reconcile the fact that an agencies “failure” to examine
“reasonable” alternatives continues to be the most litigated issue in
10
NEPA related cases. It makes perfect sense to provide federal agencies
with sideboards to enhance their existing abilities.
In response to the argument that the requirement that an alternative be
supported by feasibility or engineering studies it should be noted that
this is a requirement for the agency, not the public. Those alternatives
provided to the agency by way of public comments would not have to have an
accompanying economic or technical analysis. The practical effect of this
recommendation’s requirement would be that the agency will conduct these
analyses before the NEPA document is released for public consumption.
Thus, the alternatives presented to the public will have a solid
foundation. All interested parties will be allowed to present whatever
alternatives they wish, but the agency will be free to discount those that
are not supported by the purpose and need and are inconsistent with the
agency’s feasibility analyses.
The second recommendation deals with how to treat the “no action
alternative” and its variations (Recommendation 5.2). It is unclear if
agencies are giving the “no action alternative” the same consideration as
other alternatives presented in a NEPA document. For example, it does
appear that agencies believe that doing “something” will have some degree
of impact while doing nothing just maintains the status quo. While this is
true in some limited cases, it has to be the case that the status quo is
not as good as alternatives proposed in the NEPA document – or what is the
real value of the project at all? Therefore, if “no action” is going to
make matters worse or not improve them, then the agency should feel
compelled to discuss that fact and it would stand to reason that it would
be rejected. Again, while commentors opposed to this recommendation
asserted that agencies are treating the no action alternative adequately
at present, evidence presented to the Task Forces proves otherwise.
The third and final recommendation in this group is focused on enforceable
mitigation
(Recommendation 5.3). Comments on this recommendation were generally
positive. The concern with the current state of affairs with respect to
mitigation is that “promises’ are being made but not kept. This is not to
say, however, that federal agencies are intentionally disregarding their
mitigation proposals. Comments noted there is a definite need to build in
some criteria that will hold agencies responsible for the mitigation
proposals they themselves present to the public. It was also pointed out
that this requirement is already present in the California “mini NEPA.”
The net benefit, as the commentors saw it, is that having enforceable
mitigation will strengthen the “mitigated FONSI” that sometimes follows an
EA. This process is certainly shorter than the preparation of an EIS and
if complemented by enforceable mitigation, then it will be less subject to
challenge. Those in opposition offered that it is “unclear if CEQ has the
authority” to promulgate this regulation. Clearly, this recommendation
would grant CEQ this authority if it does not presently exist. Further,
CEQ is the proper entity to work with agencies to develop the enforcement
measures that are the most workable and effective.
Group 6 – Better Federal agency coordination
The group starts out with a recommendation to increase the current
consultation with stakeholders (Recommendation 6.1). This recommendation
was met with widespread support – with some suggested enhancements. It was
agreed that “increased and early”
11
communication and consultation can only help to further NEPA’s goals. It
was also pointed out that, at present, stakeholders are not “brought to
the table” until decisions are already made by the agency. Thus it is
important to begin consultation “prior [to conducting] a full
environmental analysis. Some commentors expressed uncertainty with the
meaning of the periodic consultation referenced in the recommendation.
There is no specific requirement of how the consultation should work.
Rather, CEQ is instructed to encourage more consultation with interested
parties; how they do that is largely up to CEQ. Other comments raise valid
points about who should qualify for consultation. Some commentors noted
there should be “stratification” of stakeholders – those with greater
responsibilities should be allowed greater consultation. This seems
reasonable and would not appear to disenfranchise any state, local or
national interested party.
The other recommendation in this group codifies the current regulation on
lead agencies
(Recommendation 6.2). As stated in the language accompanying the
recommendation, clarifying the role of lead agencies has been done in
legislation. Comments on this recommendation ranged from “worthwhile” to
“unnecessary.” In reviewing the comments, it appears that while there is
existing regulation on the role of lead agencies, its directives are not
“carried out due to conflicts between agencies.” This is problematic and
justifies the solution set out in the recommendation. The lead agency is
responsible for core NEPA decision such as purpose and need and
alternatives. Given its critical role, lead agencies must have clear
guidelines for the “across the board.” However, some comments noted that
codifying the existing regulation with the additional concepts presented
in the regulation may create a situation where agency flexibility is
unduly restricted. In other words, it is important that “particularized
attention” must be paid to the mission and “undertakings” of an agency.
This is an important point and the recommendation is modified accordingly.
Group 7 – Additional authority for the Council on Environmental Quality
The recommendations in this group will give CEQ additional authorities to
reduce inefficiencies in the NEPA process. The first recommendation
creates a “NEPA ombudsman” within CEQ to resolve conflicts between
agencies and among stakeholders
(Recommendation 7.1). There was little support for this recommendation.
Some considered it “radical” in that it would now involve CEQ in a dispute
resolution role down to the “project level.” Moreover, several commentors
suggested that the recommendation is “unnecessary” given the existing
authorities. These comments pointed out that the current mediation process
includes “informal” dispute resolution that works rather well. Further,
some thought the addition of “another decision maker” would add more
delays to the NEPA process. In light of these comments, a NEPA ombudsman
within CEQ is not appropriate at this time.
The other recommendation in this group addressed the increasing costs of
NEPA compliance
(Recommendation 7.2). There is little to dispute that the cost of NEPA
compliance has risen significantly over the years. However, as one would
imagine, there was much dispute as to the causes of the costs and any
potential “benefits.” Reaction to this cost containment recommendation was
mixed. Several comments found the recommendation worthwhile and
beneficial. Those opposed to it suggest that it is “unnecessary” because
“CEQ already has the authority” to conduct such an analysis. This response
reflects a common misconception with current NEPA practice. Indeed, CEQ
may have existing authority to execute the tasks
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laid out in the recommendation. In many instances, however, CEQ is not
doing these things and needs to be directed to do so. Other comments
indicate that “comprehensive [NEPA reviews] may require expenditure[s] of
time, capital and resources.” In other words, a “comprehensive” analysis
may be too costly to undertake. This is not a logical conclusion. CEQ, by
virtue of its statutory role within the NEPA process, is in the perfect
position to evaluate ways in which agencies should pursue comprehensive
NEPA documents without having to spend vast (and seemingly unlimited)
sums. Other comments noted that CEQ should “monitor” compliance costs on
an ongoing basis and periodically report the findings to Congress. This
would be appropriate as a way to support a comprehensive study. Finally,
one comment pointed out that if other recommendations in the initial
report were to take effect, cost would decrease as a result thus obviating
the need for this particular recommendation. This notion could be verified
through the use of ongoing cost monitoring.
Group 8 – Clarifying the meaning of “cumulative impacts”
The recommendations in this group will clarify the two most contentious
components of cumulative impacts – past and future actions. The first
recommendation clarifies the baseline that agencies can use to assess the
effects of past actions within NEPA’s directives on “cumulative impacts”
(Recommendation 8.1). As was the case with comments on delays in the NEPA
process, the comments on this recommendation focused on both whether there
is a problem with past actions and if so how can it be dealt with. A
number of comments stated that this recommendation as “essential” to NEPA
modernization. Not surprisingly, some commentors who are supportive of the
status quo felt this recommendation was “unnecessary.”
In support of this recommendation it was said that it would provide a
“common point of reference” for agencies to judge the impact of a proposed
action. It was also pointed out that the current treatment of past actions
is a “prime example” of how court-created NEPA policy is problematic. The
recommendation was viewed as an appropriate “side board” for cumulative
impact analysis. It was noted, correctly, that cumulative impact analysis
would not disappear or otherwise be degraded under this recommendation.
The opposition to this recommendation pointed to the fact that a statutory
amendment is unworkable and has been overtaken by events such as the
“detailed guidance” issued by CEQ in the wake of Lands Council v. Powell.
It was mentioned that assessing cumulative impacts is “quite complex” and
that legislating criteria is a “bad idea.” While noting that legislation
is not preferable, it was stated that regulations on this subject is
“strongly supported.” Moreover, some commentors sensed that this
recommendation is susceptible to various “interpretations” that could
cause even more confusion and controversy than exists at present. One
interpretation that was advanced was that agencies could “ignore the
impacts of past actions.” This assertion misses the point. The
recommendation allows agencies to focus on past actions in the proper
context of the proposed action, rather than an exhaustive and improper
examination of all past actions.
The other recommendation in this group directs CEQ to promulgate
regulations to establish the parameters of the future actions component of
cumulative impacts analysis
(Recommendation 8.2). The importance of these potential regulations was
summed up by the comment that noted that it is “hard to predict” future
actions. Also, it was stated that the
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current “inconsistency” on future actions have led courts to be
“particularly active” on this issue. The opposition to this recommendation
focused on potential issues with the phrase “concrete proposed actions.”
Several commentors provided examples how restricting future impacts to
“concrete proposed actions” could detrimentally “limit [a legitimate]
scope of analysis” with little benefit. It was suggested that elimination
of “speculative scenarios” would be a useful criterion. Guidance on this
issue will aid federal decision makers by allowing them to focus on the
scope of future impact analysis is “actually needed” rather than guessing
what might be needed depending on litigation. The focus of the regulation
should be “proximate causation.” In other words, the regulation should
limit study of future actions to those impacts that will immediately or
very closely follow from the proposed action.
Group 9 - Studies
The final group of recommendations contained three proposed studies that
will yield more information about ways to improve the NEPA process. CEQ
would be charged with administering the studies. It is the intent that CEQ
would be given the appropriate resources to conduct these studies. The
first recommendation is a comprehensive examination of how NEPA interacts
with other federal laws (Recommendation 9.1). The reaction to undertaking
this study was generally positive. Commentors that supported this
recommendation stated – and provided examples to highlight – that while
NEPA is not a substantive statue it is often the “trigger that brings to
bear the full weight of [other major] environmental laws.” Laws cited as
appropriate for review include the Clean Air Act, Clean Water Act and
Endangered Species Act. It is obvious that these laws do not have
identical requirements and that NEPA’s purpose is to serve as an
“umbrella” statute. What is not so evident is the degree that these laws
require overlapping environmental evaluation. For example, it was stated
that taken together the major environmental laws “ensure full and thorough
consideration” of environmental impacts. The question then is where does
NEPA fit in? Clearly, NEPA ought not to be removed as a tool for
environmental impact analysis but cannot be used as just another layer of
analysis. Finally, this study is not intended to prevent or impact
existing or proposed legislative proposals that include NEPA components.
Obviously, these provisions will have their own dialogue and will go
through their own set of analyses.
The second study is an assessment of current NEPA staffing in the federal
agencies
(Recommendation 9.2). The intent is to conduct a quantitative analysis of
how many skilled NEPA practitioners exist with the federal government, how
many are needed and how will the agencies get the necessary qualified
staff to fill any gaps. Contrary to the notion that “it is well
documented” that there are inadequate resources, all that is known is that
there is generally a lack of personnel. What remains is understanding
exactly what is needed given an agencies NEPA workload and sophistication
in dealing with the NEPA process and where the personnel can be found
(e.g., within the public or private sector) that can help agencies
efficiently manage the NEPA process.
The final study is the interaction between NEPA and state “mini-NEPAs”
(Recommendation
9.3). It was pointed out by one commentor that having this study after a
recommendation to allow state NEPAs to satisfy appropriate NEPA
requirements (Recommendation 3.2) seems to “put the cart before the
horse.” This is a valid point with one caveat. Although it was noted in
the Initial Report that the recommendations should be considered “in
concert,” there are instances where the recommendations are somewhat
independent. Thus, it is possible
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that Recommendation 3.2 may go forward if conducting a “full blown” study
as proposed in Recommendation 9.3 is not possible nor warranted. Many
reviewers noted that this type of study is “worthy” or “absolutely
essential.” These commentors believe that the state mini NEPA’s have
“grown tremendously” adding to the overall complexity of the NEPA process.
Other opinions mentioned that rather than doing this study, it would be
“more prudent” for CEQ to focus on getting states and other non-federal
stakeholders better involved in the NEPA process.
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Recommendations
After reviewing the over 250 substantive comments, the following
recommendations are offered to the Chairwoman of the Task Force. As stated
above, these recommendations are based upon those presented in the initial
report and in many cases have been modified or eliminated to reflect ideas
and concepts presented in the written comments. However, it should not be
surprising that the text of some recommendations remain very similar to
the text offered in the initial report. This is not a result of
disregarding any particular comment. Rather, it is a result of the
comments, on balance, suggesting that there should be no change. If
executed, these recommendations will have a profound impact on improving
both the NEPA statute and the manner in which it is implemented.
The recommendations include statutory changes as well as directions for
new regulation from CEQ. To mitigate concerns that new CEQ guidance and
regulations will suffer the same problems as existing ones, the
recommendations for new regulations are supported by accompanying policy
statements that will be placed into the statute. It is important to note
that the existing NEPA regulations, given their general nature, must be
read in conjunction with an array of court cases. It is the intent that
the regulations set out in the recommendations would stand alone and not
need additional court interpretation.
Although these recommendations are the final product of the Task Forces,
further discussion is needed as the NEPA landscape is continually
changing. However, this conversation should not delay moving forward on
starting the necessary legislative or administrative procedures.
Group 1 - Addressing Delays in the process
Recommendation 1.1: Amend NEPA to change “major federal action” to
“significant federal action.” The current determination of “major federal
action” – which triggers the use of an EIS – is undefined in statute and
has been left in large measure to the courts. To determine a “major
federal action”, courts engage in a two-step process of reviewing a
federal government action against two CEQ regulations that, when combined,
attempt to define “major federal action” (40 CFR 1508.18 and .27).
However, within the regulations the term “major” has no meaning
independent of “significantly.” The term “significantly” is the true
trigger for the use of an EIS. Clearly the undefined term “major” leads to
some inconsistent application of the EIS requirement of section 102(2)
(C). To ameliorate this confusing, multi-step process, the statute that
changes the trigger for the detailed statement required by section
102(2)(C) from “major federal action” with “significant federal action”
and a definition should be added to the statute that clearly defines a
“significant federal action.” Regulation 40 CFR 1508.8 would also need to
be amended to reflect this change.
Recommendation 1.2: CEQ will promulgate regulations to set mandatory
timelines for the completion of NEPA documents; Amend NEPA to add a policy
expressing the need for timely completion of NEPA documents. NEPA
regulation 1500.5(e) states that agencies shall reduce delay “by
establishing appropriate time limits for the [EIS] process.” This
regulation has not been applied as intended. That is, there are no time
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limits for any component of the NEPA process. Therefore, CEQ should craft
a regulation that would limit to 18 months the time for completing an
Environmental Impact Statement (EIS). The time to complete an EA will be
capped at nine months. As a backstop to ensure agencies adhere to the
letter and spirit of the regulations, NEPA documents that are not
concluded by these timeframes will be considered completed. It is
incumbent for the agency to acquire and use the resources necessary to
complete NEPA documents in a timely manner. Sensible timeframes will make
for better federal decisions. This statement will form the basis for a new
statutory policy on reducing delay.
There will obviously be situations where the timeframes cannot be met, but
those should be the exception and not the rule. Before the time expires,
an agency would have to receive a written determination from CEQ that the
timeframes will not be met. In this determination, CEQ may extend the time
to complete the documents, but not longer than six and three months
respectively. If CEQ cannot or will not issue this new guidance within a
timely fashion, an amendment to NEPA with the above time limitations is
appropriate.
Recommendation 1.3: CEQ should issue new regulations to create unambiguous
criteria for the use of Categorical Exclusions (CE), Environmental
Assessments (EA) and Environmental Impact Statements (EIS); Amend NEPA to
craft a policy that federal officials must use the NEPA documents that
address the environmental impacts. A number of comments suggested that if
the agencies used the “proper” process, there would be fewer controversies
and delays. Therefore, in order to encourage the “proper” use of CEs and
EAs, CEQ will promulgate a set of regulations to establish clear criteria
to differentiate between the requirements for EA’s and EIS’s. These new
regulations should utilize the current definitions in 40 CFR 1508.7, .9
and .11. The criteria should focus on the “significance” of an action – to
be consistent with existing regulation and case law. Utilizing the
regulatory approach will provide flexibility. Further using the regulatory
process is preferred for agency-wide implementation and the encouragement
public participation. The accompanying policy statement will direct
agencies to focus their choice of NEPA document based on impact, rather
than on which one will reduce the potential for litigation.
Recommendation 1.4: Amend NEPA to address supplemental NEPA documents. A
provision would be added to NEPA section 102 to codify criteria for the
use of supplemental NEPA documentation. This provision would not allow an
agency to require supplemental NEPA documentation unless there is a
showing that: 1) an agency has made substantial changes in the proposed
actions that are relevant to environmental concerns; and 2) there are
significant new circumstances or information relevant to environmental
concerns and bearing on the proposed action or its impacts. This language
is taken from 40 CFR 1502.9(c)(1)(i) and (ii). Subsection
(2) of the current regulation would not be included in this statutory
change. Including this language would run counter to the goal of incidents
of supplemental NEPA documents. Note that the “significant new
circumstances” requirement can include a violation of the mandatory
mitigation requirement in recommendation 5.3.
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Group 2 - Enhancing Public Participation
Recommendation 2.1: Direct CEQ to prepare regulations instructing agencies
to evaluate comments based on impact; Amend NEPA section 101 to recognize
the significance of a federal undertaking must be measured by its impact
on the environment. CEQ should instruct agencies to assess comments
according to the impact on the entity submitting them. This will give an
agency the true “effect” of an action on a scale from greatest to least
impact. Agencies would be required to create a scoring mechanism
consistent with their mission. All comments submitted would be subject to
this type of evaluation. Therefore, there would be no diminution on the
ability of any stakeholder to comment. To the extent federal agencies
already have this type of evaluation process, CEQ will document it and
publish it for the benefit of all those wishing to comment. A regulation
in section 1500 would be appropriate and consistent regulatory policy
statements such as “reducing paperwork” and “reducing delay.”
Recommendation 2.2: Amend NEPA to codify the EIS page limits set forth in
40 CFR 1502.7. A provision would be added to section 102(2) of NEPA to
codify the concept that an EIS shall normally be less than 150 pages with
a maximum of 300 pages for complex projects. Consistent with 40 CFR
1502.7, this page limitation would only apply to:
1. The purpose and need
2. Alternatives
3. Affected environment
4. Environmental consequences The language would allow agencies to
petition CEQ for a waiver of the page limits on if there is a compelling
need.
Group 3 – Better Involvement for State, Local and Tribal Stakeholders
Recommendation 3.1: Direct CEQ to prepare regulations that allow existing
state environmental review process to satisfy NEPA requirements; Amend
NEPA to articulate a policy that federal agencies should utilize
equivalent state environmental analysis statutes and procedures to the
extent they further NEPA’s goals. CEQ would be directed to prepare
regulations that would, in cases where state environmental reviews are
functionally equivalent to NEPA requirements, allow these requirements to
satisfy commensurate NEPA requirements. NEPA would be enhanced by speaking
directly to the value of state “mini-NEPAs.” A new policy statement would
encourage federal agencies to make the most of these statues.
Group 4 - Addressing Litigation Issues
Recommendation 4.1: Amend NEPA to create a policy declaration on
litigating under the statue; Direct CEQ to prepare regulations clarifying
legal procedures for bringing suit under NEPA; A new section under Title I
of NEPA should be created that expresses a policy position recognizing the
role of litigation as an enforcement
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tool, but pointing out that it should be used only in limited cases and
where the following elements are present:
• A clear demonstration that an agency made a decision without using the
best available information and science. • An aggrieved party has been
involved throughout the process in order to have standing in an appeal. •
Challenges should have been filed within 180 days of notice of a final
decision on the federal action To complement this policy declaration and
to make it simple to understand the criteria for bringing a NEPA-related
suit, CEQ would provide regulations on specific procedures.
Recommendation 4.2: Amend NEPA to add a requirement that CEQ provide
litigation guidance to agencies. With an additional requirement placed
under section
204, CEQ would become a clearinghouse for monitoring court decisions that
affect the preparing NEPA documents. If a judicial proceeding or agency
administrative decision mandates certain requirements, CEQ should be
charged with the responsibility of analyzing its effects and issuing
proactive guidance advising appropriate federal agencies of its
applicability.
Group 5- Clarifying Alternatives Analysis
Recommendation 5.1: Amend NEPA to require analysis of only “reasonable
alternatives”; CEQ to issue regulations to define “reasonable
alternatives” as those that are economically and technically feasible.
Current statutory language would be amended to add “reasonable” to
references to alternatives – for example in 102(c)(iii). In addition, CEQ
would be directed to issue regulations that state that “reasonable
alternatives” are those supported by feasibility and engineering studies,
and be capable of being implemented after taking into account: a) cost, b)
existing technologies, and (c) socioeconomic consequences (e.g., loss of
jobs and overall impact on a community).
Recommendation 5.2: Amend NEPA to clarify that the alternative analysis
must include consideration of the environmental impact of not taking an
action on any proposed project. A provision would be created that requires
an extensive discussion of the “no action alternative” as opposed the
current directive in 40 CFR 1502.14 which suggests this alternative merely
be included in the list of alternatives. For example whereas the statute
talks about the “adverse environmental effects” of a proposed action,
similar statutory treatment should be given to any “adverse environmental
effects” if the proposed action is not realized at all. An agency would be
required to reject this alternative if, on balance, the impacts of not
undertaking a project or decision would outweigh the impacts of executing
the project or decision.
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Recommendation 5.3: Direct CEQ to promulgate guidance to make mitigation
proposals mandatory; Amend NEPA to recognize that mitigation proposals
that a utilized as part of the decision-making process must be
implemented. CEQ would be directed to craft guidance that requires
agencies to include with any mitigation proposal a binding commitment to
proceed with the mitigation. To be valid the mitigation to be used in must
be articulated in NEPA documents such as an EIS or a “mitigated FONSI.”
This mitigation guarantee would have to include the following features:
(1) the mitigation is made an integral part of the proposed action, (2) it
is described in sufficient detail to permit reasonable assessment of
future effectiveness, and (3) the agency formally commits to its
implementation in the Record of Decision, and has dedicated sufficient
resources to implement the mitigation. If the mitigation commitment is not
adhered to, the agencies will be forced to prepare an EIS (in the event
that an EIS includes a commitment and there is a violation, the result
will be the preparation of a supplemental EIS). Where a private applicant
is involved, the mitigation requirement should be made a legally
enforceable condition of the license or permit.
Group 6 – Better Federal Agency Coordination
Recommendation 6.1: Direct CEQ to promulgate regulations to encourage more
consultation with stakeholders. CEQ will draft regulations that direct
agencies to periodically consult in a formal sense with interested parties
throughout the NEPA process, with an emphasis on bringing parties to the
table before decisions are finalized. Utilizing the regulatory process
will allow CEQ to create a workable mechanism that will make the
consultative role commensurate with responsibility. Further, CEQ’s
regulations will focus on creating a mechanism that includes all
appropriate stakeholders with particular emphasis on not including
“fringe” elements that would only seek to delay the decision-making
process.
Recommendation 6.2: Amend NEPA to clarify responsibility of lead agencies.
The statute should be amended to add to duties of the “responsible federal
official,” additional concepts such as charging the lead agency with the
responsibility to develop a consolidated record for the NEPA reviews, EIS
development, and other NEPA decisions. When carrying out its duties as
presented in this recommendation, the lead agency would be charged with
recognizing the mission and operations of cooperating agencies.
Group 7 - Additional Authority for the Council on Environmental Quality
Recommendation 7.1: Amend NEPA to direct CEQ to control NEPA related costs
and to ensure statutory authority to conduct this exercise. A provision
would be added to Title II specifically charging CEQ with the obligation
of assessing NEPA costs and bringing recommendations to Congress for some
cost ceiling policies. A provision would be added to Title II of NEPA
granting CEQ the authority to control NEPA-related costs.
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Group 8 - Clarify meaning of “cumulative impacts”
Recommendation 8.1: Amend NEPA to clarify how agencies would evaluate the
effect of past actions for assessing cumulative impacts. A provision would
be added to NEPA that would establish that an agency’s assessment of
existing environmental conditions is the appropriate methodology to
account for past actions. This enhancement means that agencies will still
have to account for the effect of past actions. However it would become
policy that the methods that agencies use (and take the care to develop)
to evaluate the current state of the environment will serve as the basis
for evaluating the actual effect of past actions.
Recommendation 8.2: Direct CEQ to promulgate regulations to make clear
which types of future actions are appropriate for consideration under the
cumulative impact analysis; Amend NEPA to instruct federal agencies to
employ practical considerations to asses the practicality of a future
action’s impact on the environment. CEQ would be instructed to prepare
regulations that would modify the existing language in 40 CFR 1508.7 to
clarify what actions are “reasonably foreseeable.” The amended regulation
should make certain that speculative actions are not “reasonable” within
the context of cumulative impacts.
Group 9 - Studies
Recommendation 9.1: CEQ study of NEPA’s interaction with other Federal
environmental laws. Within one year of the publication of The Task Force
final recommendations, the CEQ will be directed to conduct a study and
report to the House Committee on Resources that:
1. Evaluates how and whether NEPA and the body of environmental laws
passed since its enactment interacts;
2. Determines the amount of duplication and overlap in the environmental
evaluation process, and if so, how to eliminate or minimize this
duplication; and
3. If there are necessary overlaps among federal laws, determines methods
to streamline any interactions (including mandatory timelines for the
completion of consultations). Recommendation 9.2: CEQ Study of current
Federal agency NEPA staffing issues. Within one year of the publication of
The Task Force final recommendations, the CEQ (with necessary assistance
and support from the Office of Management and Budget) will be directed to
conduct a study and report to the House Committee on Resources that
details the amount and experience of NEPA staff at key Federal agencies.
The study will also recommend measures necessary to recruit and retain
experienced staff.
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Recommendation 9.3: CEQ study of NEPA’s interaction with state
“mini-NEPAs” and similar laws. Within one year of the publication of The
Task Force final recommendations, the CEQ will be directed to conduct a
study and report to the House Committee on Resources that at a minimum:
a. Evaluates how and whether NEPA and the body of state mini-NEPAs and
similar environmental laws passed since NEPA’s enactment interact; and b.
Determines the amount of duplication and overlap in the environmental
evaluation process, and if so, how to eliminate or minimize this
duplication.
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Conclusion and Next Steps
The recommendations in this document form the best foundation for
modernizing NEPA. The recommendations provide a point from which the
Committee on Resources can achieve tangible success in improving NEPA for
the benefit of all stakeholders. As stated above, the process for
modernizing NEPA is not a short one. The near-term next steps include:
• A hearing before the full Committee on Resources on these
recommendations • Additional dialogue with the Council on Environmental
Quality to understand how the recommendations would be implemented •
Additional consultations with all affected stakeholders to provide an
ongoing impact assessment of the recommendations Ultimately, legislation
should be prepared and introduced that will facilitate implementation of
the recommendations presented in this report. Taking concrete actions are
necessary to ensure NEPA continues to be a viable tool for informed
federal decisionmaking.
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