Negating NEPA: The "Magna Carta" of Environmental Protection Faces an Uncertain Future. (Currents)

By Khamsi, Roxanne | E Magazine, March-April 2003 | Go to article overview

Negating NEPA: The "Magna Carta" of Environmental Protection Faces an Uncertain Future. (Currents)


Khamsi, Roxanne, E Magazine


When Utah Governor Mike Leavitt proposed constructing a 120-mile freeway running north and south through his state, developers eagerly waited to begin digging and paving. But a few significant details bogged down their plans. As a coalition of environmental groups called Utahns for Better Transportation pointed out, the proposed freeway was to be built over a portion of the Great Salt Lake wetland where millions of birds migrating from the Arctic to South America stop to feed.

Using protective laws including the National Environmental Policy Act (NEPA), wildlife advocates challenged the planned construction in court. They argued that the Army Corps of Engineers, which maintained the authority to grant building permits for such projects, had not conducted an adequate environmental impact assessment. The planners had only taken the paved portion of the road into consideration.

"This freeway was going to damage much more than the immediate area of the road," says Lawson LeGate, the senior southwest regional representative for the Sierra Club. "And they didn't count the fact that they're in a boggy area and the lake rises and falls." Last September, judges in the 10th Circuit Court of Appeals in Denver, Colorado agreed that a more complete NEPA analysis of the environmental impacts of the road was necessary, sending the planners back to the drawing board.

Passed by Congress in 1969 and signed into law by Richard Nixon, NEPA has served for more than three decades as the "Magna Carta" of environmental protection in the U.S. The law--which has remained nearly unaltered--requires government agencies to prepare environmental impact statements (EIS) that publicly disclose the potential effects of projects for which they issue permits, pay for or build.

"NEPA guarantees that government decisions will take environmental concerns into account and gives the public a role in that decision-making process," says Sharon Buccino, a senior attorney for the Natural Resources Defense Council.

But a number of recent government proposals and actions that circumvent NEPA suggest that such guarantees may soon no longer exist. The Bush administration's wildfire plan, known as the Healthy Forests Initiative, includes a proposal to waive NEPA environmental reviews and appeals for a broad category of commercial logging. According to the initiative, restoration of the forests is a priority, but "managers and local communities are too often held back by red tape and litigation."

In line with the initiative, two bills in Congress sought to exempt millions of acres of national forest land from NEPA review. The House bill would have given the public only 21 days to comment on a proposed agency action, while current regulations provide a 90-day window. Both houses of Congress rejected their respective versions of the proposal.

Michael Francis, director of The Wilderness Society's national forests program, knows the importance of public input in forest decisions. He points to a situation in which planning changes threatened to radically alter habitat in South Dakota's Black Hills National Forest. Pointing to NEPA, wildlife defenders appealed the plan administratively. The Forest Service chief agreed with their complaints and asked for a revision.

Yet, in another recent action, the Forest Service proposed regulation changes under which the agency would no longer require environmental impact statements for alterations of existing forest plans. The new rule would also eliminate the administrative appeal process in favor of a pre-decision review process, which the Forest Service claims will speed the planning procedure. According to Susan Rieff, policy director for land stewardship at the National Wildlife Federation, these changes will essentially exempt local forest supervisors from any NEPA requirements and limit public input in developing forest management plans. …

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