29 Feb Inside the Denver February 11 Hearing to Roll Back NEPA
Tamie Meck, the only West Slope journalist with a birdseye view of the Denver meeting, provides a unique perspective.
On Feb. 11 the White House Council on Environmental Quality conducted a public hearing on proposed updates to the regulations implementing the National Environmental Policy Act of 1969 (NEPA) signed into law under the Nixon administration. The NEPA process allows participating agencies to evaluate the environmental and related social and economic effects of their proposed actions, and to provide opportunities for public review and comment on those evaluations.
One of two public hearings scheduled on the changes (a second hearing took place on Feb. 25 in Washington, D.C.), the event attracted more than 110 speakers representing a diverse set of backgrounds, the majority of which spoke in opposition to the changes.
Opponents, including Governor Polis, state directors of the Colorado Department of Public Health and the Environment, Department of Natural Resources, Department of Transportation and the Colorado Energy Office, expressed concern and ire over eliminating climate change from the NEPA review process, reduced opportunity for public comment, and relieving cooperating agencies from considering direct, indirect and cumulative environmental impacts on proposed projects.
Proponents of the changes, highway, coal mining, ranching, oil and gas and other Industry representatives view NEPA as outdated, costly and unnecessary. Speakers lauded the proposed changes, which they say will allow for the update and modernization of road and bridge and other aging infrastructure largely built in the 1950s and 1960s, create jobs, save time and money, and improve quality of life.
Ed Mortimer, vice president of Transportation and Infrastructure at the U.S. Chamber of Commerce, represented Unlock America’s Investment, a coalition of 44 national organizations. Mortimer said the coalition applauds CEQ’s efforts to streamline NEPA and make changes to allow the country to modernize the nation’s aging infrastructure, for which the American Society of Civil Engineers gave a D+ grade in 2017. NEPA has “mothballed” transportation, waterways and water storage, renewable energy, and other projects for years or decades, and delayed maintenance and rebuilding while forestalling economic benefits, said Mortimer.
Hotchkiss rancher Robbie LeValley urged the CEQ to move forward with changes. LeValley serves as County Administrator for Delta County but did not represent the County in her testimony. LeValley said she has worked with multiple governmental agencies on conservation efforts for the threatened Gunnison Sage Grouse for 25 years. Her family has placed land under a conservation easement, and provided water on both private and public lands.
LeValley said “proposed language is critical for endangered species,” specifically the clarity for categorical exclusions under which the EA and EIS processes are not required.” They have waited on NEPA “literally for years” to complete projects that would provide water for the sage grouse and to construct electric and other fences.
NEPA is the country’s first environmental law and a model for other countries. The Council on Environmental Quality created the current framework of NEPA regulations, first through a set of guidelines in 1970 and 1973, which were subsequently codified as regulations in 1978, and has amended those regulations once. Enacted on the heels of a 1960s environmental revolution, NEPA requires federal agencies to assess the environmental effects of proposed projects on Bureau of Land Management, U.S. Forest Service and other public lands that receive federal funding prior to making decisions.
NEPA compliance requires three levels of environmental review: categorical exclusions (CE), for proposals having no significant impact on humans or the environment; environmental assessments (EA); and the more detailed environmental impact statements (EIS). According to CEQ, participating agencies prepare about 170 EIS and 10,000 EA annually, and apply CEs to approximately 100,000 actions.
CEQ officials report that an average EIS document is 586 pages, and from scoping to Record of Decision takes an average review time of 4.5 years. The CEQ recommends limiting EIS reports to no more than 300 pages depending on scope and complexity of proposals and a timeline of no more than 2 years.
In addition, CEQ proposes a change in position to state that analysis of cumulative environmental effects of proposals, as defined in CEQ’s current regulations, “is not required under NEPA.”
In January, President Trump hailed modernizing NEPA as a “historic step in our campaign to slash job-killing regulations,” that would eliminate the “slow and burdensome” federal approval process and “improve the quality of life for all citizens.”
In 2018 Trump established by executive order “One Federal Decision,” a policy that directs federal agencies to coordinate on federal environmental review and permitting process for major infrastructure projects and to complete environmental reviews for such projects, from notice of intent to record of decision, within two years.
But opponents of the proposed changes see it another way, calling NEPA the “look before you leap,” “Magna Carta” and “bedrock” of Federal environmental laws that should be strengthened, not weakened.
Native Americans equated climate injustice with social injustice and called CEQ’s proposal “a breach of trust” that would violate treaty rights. Mandan, Hidatsa and Arikara tribe member Lisa DeVille called NEPA “one of the only avenues for tribal protections,” and said policy changes would lead to more poisoning of air and water that would affect indigenous people for generations.
“The draft rules effectively work to accelerate climate and environmental degradation by expediting the rate at which detrimental projects are approved,” said Natasha Léger, executive director of the North Fork-based grassroots nonprofit Citizens for a Healthy Community. She urged the CEQ to “abandon this rule-making effort and focus on solving the climate and environmental crises of our time.”
“NEPA, while imperfect, combined with other environmental laws and regulations has allowed us to protect our ecosystem which our local economy and others depend on,” said Léger.
The member-based CHC has relied on NEPA to fight large-scale oil and gas development in the North Fork area — which she said has been designated by The Wilderness Society as “one of 15 rare and irreplaceable ecosystems,” in the country — that would “exacerbate climate change.”
Léger implied the changes may not be constitutional. Pointing to a recent decision by The Ninth Circuit Court of Appeals on the youth-led lawsuit, Juliana vs. United States, the court ruled in January that it “found federal actions responsible for climate change.”
“The court opinion held that “a substantial evidentiary record documents that the federal government has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change, and that failure to change existing policy may hasten an environmental apocalypse”.
Matt Reed with High Country Conservation Advocates said the more than 80% of public lands that make up Gunnison county are “the backbone of the community.” He described the county as, “like much of Colorado, in transition,” as populations grow, coal mining declines, the climate changes and people transition into new jobs as new technologies emerge. Expressing opposition to the proposed dismantling of NEPA, Reed said NEPA is “the critical mechanism to ensure that our community is able to plan for the future,”
NEPA, Reed said, is “a road map to better decision making.” It considers protections for the Gunnison Sage Grouse under proposed trail expansion, the effects of adding new roads for logging proposals to an already struggling landscape, the big game hunting economy in natural gas development in the upper North Fork Valley, and that ski area expansion in Crested Butte takes into account impacts to the fishing economy. County residents participate in, look to, and are thankful for NEPA, said Reed The proposal “undercuts this law just at this time that it is most necessary,” and is the “exact opposite of what is needed.”
That two federal NEPA hearings affecting millions of people were scheduled to address legislation also drew criticism. The public, including government officials had to secure tickets to speak at this public meeting. Tickets available through the website EventBrite were snatched up in minutes, and comments were limited to three minutes. Opponents said limiting public access to the hearing illustrates how Americans are being locked out of the public process. Despite the registration, several seats speaking and listening seats were vacant during the morning, afternoon and evening sessions, further depriving people of a “public meeting”.
The three-minute limit is “grossly inadequate” considering the stakes, and demonstrates how the public could be limited in commenting on proposed projects under the changes, said Jim Ramey, Colorado State Director of The Wilderness Society. “If CEQ is genuinely interested in improving the NEPA process, then it should do so with a scalpel, rather than a chainsaw, and with a level of public engagement and process commensurate with the importance of this law.”
Public comment ends March 10. Visit https://www.regulations.gov, fax to 202-456-6546, or mail: Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 20503. Include the agency name and docket number CEQ-2019-0003 to https://www.regulations.gov. Alll comments will be posted without change, and with personal information.
To read the docket or background documents or comments received, go to https://www.regulations.gov.