Close to Home: Don’t gut America’s fundamental environmental law
Fifty years ago, President Richard Nixon signed into law the National Environmental Policy Act, or NEPA. This year, President Donald Trump is moving to gut it. The law's basic message, then as now, is “look before you leap environmentally,” which remains a worthy goal.
NEPA has been an American success story, followed not only by half our states but also by more than 100 countries, making it what well may be the most imitated American law in history. Good ideas are contagious.
The reasons for its success are clear - it is far wiser, and cheaper, to assess and prevent adverse environmental impacts in advance than to plunge ahead and try to repair the damage afterward. That's exactly what NEPA does.
The first of two critical elements of this process is predicting the environmental impacts so they can be avoided. Central to this analysis are the concepts of alternatives and mitigation.
The assessment preparer must ask whether there are alternative means of achieving the desired goal that have lesser or no adverse impacts. In some cases, proposed projects will turn out to be turkeys and should not proceed. And, if a decision is made to proceed, the environmental impact statement asks whether there are measures to mitigate any adverse impacts.
The second element is involving the public with all its constructive ideas. NEPA, however, contains no enforcement mechanism. Enforcement has come from members of the public going to court to ensure that the statute's provisions are observed. Public involvement and judicial review are critical to NEPA's success.
The Trump administration's proposal would eviscerate the operation of NEPA in many ways. It would explicitly bar the examination of cumulative impacts, which is totally at odds with the legislation. After all, one coal-fired plant may have primarily local effects, but dozens of such plants have worldwide effects on climate change.
Similarly, the proposal would remove the explicit requirement to discuss indirect impacts. But they are often more significant than the immediate, direct effects. When a new highway is built, for instance, there are direct effects associated with the construction itself - such as location, dust and noise. But more significant are the indirect effects - the emissions from the cars that will use the highway and, in some cases, the growth that may be induced by the new highway.
The administration's proposal would turn governmental functions over to private applicants. NEPA provides that all federal agencies shall prepare environmental impact statements on their actions. The new proposals would allow the applicant to do so - putting the fox in charge of the henhouse.
Similarly, if an outside contractor is to prepare the statement, existing law requires that the public official is to select the consultant. The proposal would allow the applicant to do so, repealing the conflict-of-interest provisions.
Alternatives are described in the current regulations as the “heart of NEPA” - forcing the agency to look at better ways of doing things (or perhaps not doing them at all). The Trump proposal would say an alternative must meet the needs of the applicant. Not true.
Under NEPA, a proposal must meet the public's needs, following the environmental policy set out in the act. For instance, if a federally assisted regional shopping center proposed by an applicant is in a wetland that is a habitat of endangered species, NEPA does not allow rubberstamping the proposal. Rather it forces the applicant to look for a less environmentally destructive site, and it allows the agency to consider a competing applicant's preferable site.
The Trump proposal would also restrict consideration of alternatives to those within the specific jurisdiction of the agency preparing the statement. That would mean an agency with jurisdiction restricted to coal power plants could not consider wind or solar alternatives - a command to “think within the box.”
The new proposal is riddled with measures to make public involvement more difficult. For instance, the proposal encourages bonds as a condition of litigation, a requirement already disfavored by the courts.
Further, the administration's proposal would allow an agency to claim it has considered a given alternative, and that claim is then to be entitled to a “conclusive presumption” that it is true. That is pure usurpation of the judicial function.
Finally, the administration claims it is reducing the amount of time the NEPA process takes, a plausible goal. But none of the proposals outlined above would further that goal. Instead, they would discard decades of experience and judicial interpretation of NEPA and its implementing regulations and invite a torrent of new litigation to address the massive changes that have been proposed.
Nicholas C. Yost was general counsel of the White House Council on Environmental Quality under President Jimmy Carter, and deputy California attorney general in charge of the environmental unit under Attorney General Evelle Younger. He lives in Santa Rosa.
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